[Federal Register Volume 60, Number 131 (Monday, July 10, 1995)]
[Rules and Regulations]
[Pages 35488-35492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16825]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[FRL-5255-8]


Extension of Stay of the Reformulated Gasoline Program: Nine 
Counties in New York, Twenty-Eight Counties in Pennsylvania, and Two 
Counties in Maine

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In today's action, EPA is extending the previous temporary 
stay of the reformulated gasoline program requirements in nine opt-in 
counties in New York, in twenty-eight opt-in counties in Pennsylvania 
and in two opt-in counties in Maine. In a separate action published 
June 14, 1995, EPA proposed to approve the requests for opt-out for 
these specified counties from the States of New York, Pennsylvania, and 
Maine. Today's action stays the applicability of the RFG requirements 
for these areas effective from July 1, 1995, until the agency has 
completed rulemaking on the proposed opt-out for these areas. Although 
EPA believes that the RFG program provides a highly cost-effective 
means of reducing ground-level ozone and toxic vehicle emissions, the 
Agency believes that states should be given the flexibility to choose 
which programs best meet each state's needs for emissions reductions.


[[Page 35489]]

EFFECTIVE DATE: June 30, 1995.

ADDRESSES: Materials relevant to this notice have been placed in Docket 
A-94-68. The docket is located at the Air Docket Section (6102), U.S. 
Environmental Protection Agency, 401 M Street SW., Washington, DC 
20460, in room M-1500 Waterside Mall. Documents may be inspected from 8 
a.m. to 5:30 p.m. A reasonable fee may be charged for copying docket 
material.

FOR FURTHER INFORMATION CONTACT: Mr. Mark Coryell, U.S. Environmental 
Protection Agency, Office of Air and Radiation, 401 M Street SW. 
(6406J), Washington, DC 20460, (202) 233-9014.

SUPPLEMENTARY INFORMATION: A copy of this action is available on the 
OAQPS Technology Transfer Network Bulletin Board System (TTNBBS). The 
TTNBBS can be accessed with a dial-in phone line and a high-speed modem 
(PH#919-541-5742). The parity of your modem should be set to none, the 
data bits to 8, and the stop bits to 1. Either a 1200, 2400, or 9600 
baud modem should be used. When first signing on, the user will be 
required to answer some basic informational questions for registration 
purposes. After completing the registration process, proceed through 
the following series of menus:

(M)  OMS
(K)  Rulemaking and Reporting
(3)  Fuels
(9)  Reformulated gasoline

    A list of ZIP files will be shown, all of which are related to the 
reformulated gasoline rulemaking process. Today's action will be in the 
form of a ZIP file and can be identified by the following titles: 
XTNDSTAY.ZIP. To download this file, type the instructions below and 
transfer according to the appropriate software on your computer:

ownload, rotocol, xamine, ew, ist, or elp Selection 
or  to exit: D filename.zip

    You will be given a list of transfer protocols from which you must 
choose one that matches with the terminal software on your own 
computer. The software should then be opened and directed to receive 
the file using the same protocol. Programs and instructions for de-
archiving compressed files can be found via ystems Utilities from 
the top menu, under rchivers/de-archivers. Please note that due to 
differences between the software used to develop the document and the 
software into which the document may be downloaded, changes in format, 
page length, etc. may occur.

I. Background

A. General Background on Reformulated Gasoline Program and Opt-In 
Process
    The reformulated gasoline program is designed to reduce ozone 
levels in the largest metropolitan areas of the U.S. with the worst 
ground-level ozone problems by reducing vehicle emissions of the ozone 
precursors, specifically volatile organic compounds (VOC), through fuel 
reformulation. Reformulated gasoline also achieves a significant 
reduction in air toxics. In Phase II of the program, oxides of nitrogen 
(NOX), another precursor of ozone, are reduced. The 1990 
amendments of the Clean Air Act require reformulated gasoline in the 
nine cities with the highest levels of ozone. Congress also provided 
the opportunity for states to choose to opt into the RFG program for 
their other nonattainment areas. EPA issued final rules establishing 
requirements for RFG on December 15, 1993 (59 FR 7716, February 16, 
1994).
    The regulation issued in December of 1993 did not include 
procedures for opting out of the RFG program, because EPA had not 
proposed and was not ready to adopt such procedures at that time. 
However, the Agency did indicate that it intended to propose such 
procedures in a separate rule.

B. Jefferson County, New York

    Jefferson County was included as a covered area in EPA's 
reformulated gasoline program based on Governor Mario Cuomo's request 
of October 28, 1991, that this county be included under the Act's opt-
in provision for ozone nonattainment areas (57 FR 7926, March 5, 1992). 
See 40 CFR 80.70(j)(10)(vi). On November 29, 1994, EPA received a 
petition from the Commissioner of New York's Department of 
Environmental Conservation, Mr. Langdon Marsh, to remove Jefferson 
County, New York, from the list of areas covered by the requirements of 
the reformulated gasoline program. EPA understands that Commissioner 
Marsh is acting for Governor Cuomo on this matter. The Administrator 
responded to the State's request in a letter to Commissioner Marsh 
dated December 12, 1994, stating EPA's intention to grant New York's 
request as of January 1, 1995, and to conduct rulemaking to implement 
the opt-out. On December 29, 1994, EPA issued a final rule staying the 
application of the reformulated gasoline program requirements in 
Jefferson County from January 1, 1995 until July 1, 1995 (60 FR 2696, 
January 11, 1995). This decision was based on the particular 
circumstances that apply in Jefferson County. On June 14, 1995, EPA 
published a notice of proposed rulemaking proposing to remove Jefferson 
County from the areas covered by the reformulated gasoline program (60 
FR 31269, June 14, 1995). In the same notice, EPA also proposed to 
extend the stay of the reformulated gasoline program for this area 
until the agency completes rulemaking on the proposed opt-out.

C. The Buffalo and Albany Areas of New York

    The Buffalo and Albany ozone nonattainment areas were included as 
covered areas in EPA's reformulated gasoline program based on Governor 
Mario Cuomo's request of October 28, 1991, that this county be included 
under the Act's opt-in provision for ozone nonattainment areas (57 FR 
7926, March 5, 1992). See 40 CFR 80.70(j)(10) (i), (iii), (v), and 
(vii) through (xi). On December 23, 1994, Commissioner Marsh of New 
York's Department of Environmental Conservation wrote to request opt-
out of the Albany and Buffalo ozone nonattainment areas which include 
the counties of Albany, Greene, Montgomery, Rensselaer, Saratoga, 
Schenectady, Erie and Niagara. The Assistant Administrator for Air and 
Radiation, Mary Nichols, responded to the state's request in a letter 
to Commissioner Marsh dated December 28, 1994, stating EPA's intention 
to grant New York's request as of January 1, 1995, and to conduct 
rulemaking to implement the opt-out. On December 29, 1995, EPA issued a 
final rule staying the application of the reformulated gasoline program 
requirements in these New York counties from January 1, 1995 until July 
1, 1995 (60 FR 2696, January 11, 1995). This decision was based on the 
particular circumstances that apply in these counties. On June 14, 
1995, EPA published a notice of proposed rulemaking proposing to remove 
these New York counties from the areas covered by the reformulated 
gasoline program (60 FR 31269, June 14, 1995). In the same notice, EPA 
also proposed to extend the stay of the reformulated gasoline program 
in these counties until the agency completes rulemaking on the proposed 
opt-out.

D. Pennsylvania Counties

    Twenty-eight counties in Pennsylvania were included as covered 
areas in EPA's reformulated gasoline program based on Governor Robert 
P. Casey's request dated September 25, 1991 (56 FR 57986, November 15, 
1991). 

[[Page 35490]]
See 40 CFR 80.70(j)(11) (i) through (xxviii). The counties referred to 
are the following: Adams, Allegheny, Armstrong, Beaver, Berks, Blair, 
Butler, Cambria, Carbon, Columbia, Cumberland, Dauphin, Erie, Fayette, 
Lackawanna, Lancaster, Lebanon, Lehigh, Luzerne, Mercer, Monroe, 
Somerset, Northhampton, Perry, Washington, Westmoreland, Wyoming and 
York. On December 1, 1994, EPA received a petition from Governor Casey 
to remove these twenty-eight counties from the reformulated gasoline 
program. The Administrator responded to the State's request in a letter 
to Governor Casey dated December 12, 1994. In this letter, the 
Administrator indicated that effective January 1, 1995, and until the 
formal rulemaking to remove the twenty-eight counties from the list of 
covered areas is completed, EPA would not enforce the reformulated 
gasoline requirements in these twenty-eight counties. On December 29, 
1994, EPA issued a final rule staying the application of the 
reformulated gasoline program requirements in these Pennsylvania 
counties from January 1, 1995 until July 1, 1995 (60 FR 2696, January 
11, 1995). This decision was based on the particular circumstances that 
apply in these twenty-eight counties. On June 14, 1995, EPA published a 
notice of proposed rulemaking proposing to remove these twenty-eight 
counties from the areas covered by the reformulated gasoline program 
(60 FR 31269, June 14, 1995). In the same notice, EPA also proposed to 
extend the stay of the reformulated gasoline program in these counties 
until the agency completes rulemaking on the proposed opt-out.
E. Hancock and Waldo Counties in Maine

    Hancock and Waldo Counties were included as a covered areas in 
EPA's reformulated gasoline program based on Governor John R. 
McKernan's request of June 26, 1991, that these counties be included 
under the Act's opt-in provision for ozone nonattainment areas (56 FR 
46119, September 10, 1991). See 40 CFR 80.70(j)(5) (viii) and (ix). On 
December 27, 1994, EPA received a petition from the Acting Commissioner 
of Maine's Department of Environmental Protection, Ms. Deborah Garrett, 
to remove Hancock and Waldo Counties in Maine from the list of areas 
covered by the requirements of the reformulated gasoline program. EPA 
understands that Commissioner Garrett is acting for Governor McKernan 
in this matter. The Assistant Administrator for Air and Radiation, Mary 
Nichols, responded to the state's request in a letter to Commissioner 
Garrett, dated December 27, 1994, stating EPA's intention to grant 
Maine's request, and conduct rulemaking to implement the opt-out. On 
December 29, 1994, EPA issued a final rule staying the application of 
the reformulated gasoline program requirements in these Maine counties 
from January 1, 1995 until July 1, 1995 (60 FR 2696, January 11, 1995). 
This decision was based on the particular circumstances that apply in 
these two counties. On June 14, 1995, EPA published a notice of 
proposed rulemaking proposing to remove Hancock and Waldo Counties from 
the areas covered by the reformulated gasoline program (60 FR 31269, 
June 14, 1995). In the same notice, EPA also proposed to extend the 
stay of the reformulated gasoline program in these counties until the 
agency completes rulemaking on the proposed opt-out.

II. Extension of Stay Removing the Nine New York Counties, the Twenty-
Eight Counties in Pennsylvania, and Two Counties in Maine From the List 
of Areas Covered by the Reformulated Gasoline Requirements as of July 
1, 1995

    On December 29, 1994, EPA issued a final rule staying the 
application of the reformulated gasoline regulations for certain areas 
that had opted in to the reformulated gasoline program. 60 FR 2696 
(January 11, 1995). This stay applied to Jefferson County and the 
Albany and Buffalo nonattainment areas of New York, the twenty-eight 
opt-in counties in Pennsylvania, and Hancock and Waldo Counties in 
Maine. It stayed the regulations in these areas effective January 1, 
1995 until July 1, 1995.
    EPA believes that the Act authorizes states to opt out of the 
reformulated gasoline program. EPA has proposed and, absent new 
information indicating otherwise, believes it will be appropriate to 
grant the requests by the governors considering the lack of adverse air 
quality impacts,1 the requests by the governors, the lack of 
reliance on reformulated gasoline in the states' State Implementation 
Plans, and the reasonable lead time provided to industry. In light of 
the current rulemaking on the opt-out requests for these areas and the 
lack of any adverse environmental effects, the likelihood the 
rulemaking will conclude in the opt-out of these areas, and the severe 
disruption in starting the reformulated gasoline program in these areas 
on short notice, EPA finds it would be inappropriate to impose the 
reformulated gasoline program requirements in these areas during the 
short time needed to complete opt-out rulemaking.

    \1\ Several of the areas have requests pending before the agency 
for redesignation to attainment status. The other areas are expected 
to submit such requests.
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    EPA is extending the stay to avoid the serious disruption to the 
gasoline distribution system, the regulated industry, and the public, 
which would be caused by a temporary imposition of the reformulated 
gasoline requirements in these areas. It is necessary that all parties 
involved have the certainty and stability needed for successful 
implementation. EPA believes that these circumstances warrant an 
extension of the previous stay of the reformulated gasoline 
requirements in these areas until EPA takes final action on the 
proposed opt-outs. That will provide adequate time to complete 
rulemaking and take final action on these opt-out requests.
III. Response to Comments

    A comment period was set for the period of June 14 through June 28, 
1995. During that period two comments were received.
    One commenter representing fuel oxygenate producers objects to 
EPA's proposed extension of the stay, arguing that EPA does not have 
authority under section 211(k) of the Act to stay the effective date of 
these opt-in areas. According to this commenter, section 211(k)(6)(A) 
provides only limited discretion in establishing the effective date for 
an opt-in, and any additional extension of this effective date must 
meet the requirements of section 211(k)(6)(B). That provision 
authorizes an extension of the effective date set under section 
211(k)(6)(A) for up to two years, if after consultation with the 
Department of Energy, EPA determines that there is insufficient 
domestic capacity to produce reformulated gasoline. In addition, EPA 
must issue an extension for areas with lower ozone classifications 
before higher ones. Not having met these requirements, the commenter 
argues that the extension is not authorized under section 211(k)(6) (A) 
or (B). The commenter also believes that EPA's reliance on Chevron 
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 
(1984) is misplaced, and that section 211(k) does not otherwise 
authorize the proposed stay.
    This commenter has misinterpreted EPA's view on statutory 
authority. The temporary stay issued in December 1994 and the stay 
proposed in June 1995 are not extensions of the effective date under 
section 211(k)(6) (A) or (B). Those provisions basically address when 
the program will first go into effect for an 

[[Page 35491]]
opt-in area. They do not address whether and when an area may opt-out 
of the program.
    As noted in the proposal, EPA believes that it has authority to 
allow an area to opt out after it has opted in, under reasonable 
conditions related to a state's air quality planning and the need for 
reasonable lead time for affected industries. This is a reasonable 
interpretation of EPA's authority, based on the delegation by Congress 
of rulemaking authority in sections 211(k)(1) and 301(a). This includes 
the authority to allow an area to permanently opt out of the 
reformulated gasoline program. The stay issued in this final rule is a 
much more limited exercise of this authority--it allows an area to be 
excluded from the reformulated gasoline program for a limited time 
period, pending the rulemaking needed to finally act on the opt-out 
request.
    EPA proposed to allow these areas to opt-out, and explained the 
legal, factual, and policy reasons supporting its proposal. Given the 
clear possibility that EPA will exclude these areas from the 
reformulated gasoline program based on their opt-out requests, it would 
be a serious and needless disruption of the gasoline market and the 
reformulated gasoline program to now implement the prohibition of 
section 211(k)(5) and require the regulated parties to market 
reformulated gasoline for the short period of time needed to act on 
this proposal. Under these circumstances, temporarily excluding them 
from the program pending action on the proposal is a limited and proper 
exercise of EPA's authority to allow an area to opt-out of the program 
indefinitely.
    One commenter representing the petroleum industry strongly supports 
the stay extension. This commenter believes that it would not be in the 
public's interest to introduce the reformulated gasoline program on 
short notice. Considering that EPA has proposed to approve the opt-out 
requests of New York, Pennsylvania, and Maine, the commenter believes a 
temporary reformulated gasoline program in these counties for a few 
months would not be warranted.

IV. Effective Date

    Based on the July 1, 1995, expiration of the prior stay, and the 
disruption that would be caused if the reformulated gasoline program 
was reinstituted in these areas for a short time, EPA finds there is 
good cause to make this rule effective upon signature. 5 U.S.C. 553(d). 
This rule is effective on June 30, 1995.
V. Environmental Impact

    The stay is not expected to have any adverse environmental effects. 
The reformulated gasoline program is currently not applicable to these 
areas and the stay continues the status quo in these areas during 
rulemaking.

VI. Economic Impact

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), the Administrator certifies that this rule will not have 
a significant economic impact on a substantial number of small 
entities. This stay is not expected to result in any additional 
compliance cost to regulated parties and, in fact, is expected to 
decrease compliance costs to the industry and decrease costs to 
consumers in the affected areas.

VII. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) the 
Agency must determine whether a regulation is ``significant'' and 
therefore subject to OMB review and the requirements of the Executive 
Order. The Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.
    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., EPA must 
obtain Office of Management and Budget (OMB) clearance for any activity 
that will involve collecting substantially the same information from 10 
or more non-Federal respondents. This rule does not create any new 
information requirements or contain any new information collection 
activities.

VIII. Unfunded Mandates Act

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the stay promulgated today does not include 
a Federal mandate that may result in estimated costs of $100 million or 
more to either State, local, or tribal governments in the aggregate, or 
to the private sector.
    This Federal action extends a stay on the application of the 
reformulated gasoline program in certain areas, pending agency 
rulemaking on the opt-out requests for these areas. The stay imposes no 
new Federal requirements, and in fact relieves an otherwise applicable 
requirement. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

IX. Statutory Authority

    The statutory authority for the action in this rule is granted to 
EPA by section 211 (c) and (k), and section 301(a) of the Clean Air Act 
as amended, 42 U.S.C. 7545 (c) and (k) and 7601(a).
List of Subjects in 40 CFR Part 80

    Environmental protection, Air pollution control, Fuel additives, 
Gasoline, Motor vehicle pollution.

    Dated: June 30, 1995.
Fred Hansen,
Acting Administrator.

    For the reasons set out in the preamble, 40 CFR part 80 is amended 
as follows:

PART 80--REGULATION OF FUELS AND FUEL ADDITIVES

    1. The authority citation for part 80 continues to read as follows:

    Authority: Sections 114, 211 and 301(a) of the Clean Air Act as 
amended (42 U.S.C. 7414, 7545, and 7601(a)).

    2. Section 80.70 is amended by revising the introductory text of 
paragraph (j) to read as follows:


Sec. 80.70  Covered areas.

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[[Page 35492]]

    (j) The ozone nonattainment areas listed in this paragraph (j) are 
covered areas beginning on January 1, 1995, except that those areas 
listed in paragraphs (j)(5) (viii) and (ix), (j)(10) (i), (iii), and 
(v) through (xi) and (j)(11) of this section shall not be covered areas 
prior to EPA taking final action on the proposal to remove these areas 
as covered areas.
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[FR Doc. 95-16825 Filed 7-7-95; 8:45 am]
BILLING CODE 6560-50-P