[Federal Register Volume 63, Number 154 (Tuesday, August 11, 1998)]
[Rules and Regulations]
[Pages 43046-43049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21212]



  Federal Register / Vol. 63, No. 154 / Tuesday, August 11, 1998 / 
Rules and Regulations  

[[Page 43046]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[FRL-6137-8]
RIN 2060-ZA04


Regulations of Fuels and Fuel Additives: Removal of the 
Reformulated Gasoline Program from the Phoenix, AZ Serious Ozone 
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In today's final action, EPA is amending its reformulated 
gasoline regulations to reflect that the Phoenix, Arizona ozone 
nonattainment area will not be a covered area in the federal 
reformulated gasoline (RFG) program as of June 10, 1998. As described 
in a separate notice published elsewhere in this issue of the Federal 
Register, pursuant to 40 CFR 80.72, EPA has approved the petition by 
the Governor of Arizona dated September 12, 1997, to opt-out of the 
federal RFG program and removed the requirement to sell federal RFG in 
the Phoenix ozone nonattainment area as of June 10, 1998. This 
effective date applies to retailers, wholesale purchaser-consumers, 
refiners, importers, and distributors. This rulemaking will conform the 
list of covered areas in the regulations to reflect the effective date 
of the opt-out for the Phoenix area. As of June 10, 1998, Arizona's 
cleaner burning gasoline state regulations will go into effect in the 
Phoenix area. Arizona developed a clean fuel program to reduce 
emissions of volatile organic compounds (VOC) and particulates (PM10). 
Thus, although opting out of the federal RFG program, the Phoenix area 
will continue to enjoy the air quality benefits of a clean burning 
gasoline.

DATES: This final rule is effective August 11, 1998.

ADDRESSES: Materials relevant to this rule to amend Sec. 80.70 of the 
RFG regulations to reflect the removal of the Phoenix area from the 
federal RFG program have been placed in Docket A-98-23. Materials 
relevant to the rule to include the Phoenix area in the federal RFG 
program may be found in Docket A-97-02. The docket is located at the 
Air Docket Section, Mail Code 6102, U.S. Environmental Protection 
Agency, 401 M Street, SW, Washington, DC 20460, in room M-1500 
Waterside Mall. Documents may be inspected on business days from 8:00 
a.m. to 5:30 p.m. A reasonable fee may be charged for copying docket 
material.
    Materials relevant to the EPA Final Rule to approve the Arizona SIP 
revision establishing state clean burning gasoline regulations are 
available in the docket located at Region IX. The docket is located at 
75 Hawthorne Street, AIR-2, 17th Floor, San Francisco, California 
94105. Documents may be inspected from 9:00 a.m. to noon and from 
1:00--4:00 p.m. A reasonable fee may be charged for copying docket 
material. This approval action is not being addressed in this rule.

FOR FURTHER INFORMATION CONTACT: Janice Raburn, Attorney-Advisor, U.S. 
Environmental Protection Agency, Office of Air and Radiation, 401 M 
Street, SW (6406J), Washington, DC 20460, (202) 564-9856.

SUPPLEMENTARY INFORMATION:

Availability on the TTNBBS

    Copies of this final rule are available electronically from the EPA 
Internet Web site and via dial-up modem on the Technology Transfer 
Network (TTN), which is an electronic bulletin board system (BBS) 
operated by EPA's Office of Air Quality Planning and Standards. Both 
services are free of charge, except for your existing cost of Internet 
connectivity or the cost of the phone call to TTN. Users are able to 
access and download files on their first call using a personal computer 
per the following information. An electronic version is made available 
on the day of publication on the primary Internet sites listed below. 
The EPA Office of Mobile Sources also publishes these notices on the 
secondary Web site listed below and on the TTN BBS.

Internet (Web)

http://www.epa.gov/docs/fedrgstr/EPA-AIR/(either select desired date or 
use Search feature)
http://www.epa.gov/OMSWWW/(look in What's New or under the specific 
rulemaking topic)

    TTN BBS: The TTN BBS 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, 9600, or 14400 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:

 GATEWAY TO TTN TECHNICAL AREAS (Bulletin Boards)
 OMS--Mobile Sources Information (Alerts display a chronological 
list of recent documents)
 Rulemaking & Reporting

At this point, choose the topic (e.g., Fuels) and subtopic (e.g., 
Reformulated Gasoline) of the rulemaking, and the system will list all 
available files in the chosen category in date order with brief 
descriptions. To download a file, type the letter ``D'' and hit your 
Enter key. Then select a transfer protocol that is supported by the 
terminal software on your own computer, and pick the appropriate 
command in your own software to receive the file using that same 
protocol. After getting the files you want onto your computer, you can 
quit the TTN BBS with the oodbye command.
    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.

Regulated Entities

    Entities potentially regulated by this action are those which 
produce, import, supply or distribute gasoline. Regulated categories 
and entities include:

------------------------------------------------------------------------
                                                Examples of regulated   
                 Category                             entities          
------------------------------------------------------------------------
Industry..................................  Refiners, importers,        
                                             oxygenate blenders,        
                                             terminal operators,        
                                             distributors, retail       
                                             gasoline stations.         
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This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your business would have been regulated by this action, you should 
carefully examine the list of areas covered by the reformulated 
gasoline program in Sec. 80.70 of title 40 of the Code of Federal 
Regulations. If you have questions regarding the applicability of this 
action to a particular entity, consult the person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

I. Background

A. Opt-Out Procedures

    Section 80.72 of the RFG regulations (Opt-out Rule) provides the 
process and criteria for a reasonable transition out of the RFG program 
if a state decides to

[[Page 43047]]

opt-out.1 The procedures for opting out are geared towards 
achieving a reasonable transition out of the RFG program for industry 
and states. The Opt-out Rule provides that the Governor of the state 
must submit a petition to the Administrator requesting to opt out of 
the RFG program. The petition must include specific information on how, 
if at all, the state has relied on RFG in a pending or approved SIP 
and, if RFG is in an approved SIP, how the SIP will be revised to 
reflect the state's opt-out from RFG. The Opt-out Rule also provides 
that EPA will notify the state in writing of the Agency's action on the 
petition and the date the opt-out becomes effective when the petition 
is approved. The regulations also provide that EPA will publish an FR 
notice announcing the approval of any opt-out petition and the 
effective date of such opt-out.
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    \1\ Pursuant to authority under sections 211(c) and (k) and 
301(a) of the Clean Air Act, EPA promulgated regulations to provide 
criteria and general procedures for states to opt-out of the RFG 
program where the state had previously voluntarily opted into the 
program. The regulations were initially adopted on July 8, 1996 (61 
FR 35673); and were revised on October 20, 1997 (62 FR 54552).
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    The effective date of the opt-out is dependent on how the RFG 
program is used by a state in its SIP. Opt-out petitions received prior 
to December 31, 1997 become effective 90 days (or later if requested) 
from the date EPA provides written notification to the state that the 
petition has been approved. If, however, the state included RFG as a 
control measure in an approved SIP, the state must revise the SIP to 
remove federal RFG as a control measure before the opt-out can be 
effective. For the latter case, the opt-out becomes effective no less 
than 90 days (or later if requested) after the Agency approves a 
revision to the state plan replacing RFG with another control. Opt-out 
petitions received after December 31, 1997 are treated differently. See 
62 FR 54552 (October 20, 1997).

B. Arizona Opt-In and Opt-Out of RFG for the Phoenix Area

    By letter dated January 17, 1997, the Governor of the State of 
Arizona applied to EPA to include the Phoenix moderate ozone 
nonattainment area in the federal RFG program.2 The Governor 
requested an implementation date of June 1, 1997. Pursuant to the 
Governor's letter and the provisions of section 211(k)(6) of the Clean 
Air Act, and after holding a public hearing in Phoenix on March 18, 
1997, EPA adopted regulations on May 28, 1997, that applied the 
requirement to sell RFG to the Phoenix area. 62 FR 30260 (June 3, 
1997).3
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    \2\ EPA reclassified the Phoenix area from moderate to serious 
nonattainment for ozone on November 6, 1997 (62 FR 60001).
    \3\ See Notice of Proposed Rulemaking at 62 FR 7197 (February 
18, 1997); and Notice of public hearing at 62 FR 11405 (March 12, 
1997).
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    Arizona subsequently enacted legislation which authorized the 
establishment of a State cleaner burning gasoline program which would 
become effective June 1, 1998. By letter dated September 12, 1997, the 
Governor of the State of Arizona applied to EPA to opt-out of the 
federal RFG program for the Phoenix area. The Governor requested the 
specific opt-out effective date of June 1, 1998, to ensure that the 
federal RFG program would be maintained in the Phoenix area until the 
State RFG regulations became effective. Thus, the Governor requested 
that EPA approve the State's opt-out petition and set the opt-out 
effective date only upon EPA approval of the SIP revision containing 
the Arizona RFG regulations and the waiver request.
    EPA's Office of Air and Radiation (OAR) responded to the Governor's 
petition by letter dated October 3, 1997. EPA stated in the letter that 
the Governor's petition provided the information required by the Opt-
out Rule and that OAR would work with Region IX to process the SIP 
revision as quickly as possible in order to provide the opt-out 
effective date requested.

II. Action

    In this rule, EPA is amending Sec. 80.70(m) to reflect that Phoenix 
will not be a covered area in the federal RFG program as of June 10, 
1998. In a separate notice published elsewhere in this issue of the 
Federal Register, EPA is announcing its approval of the Governor's 
petition and the opt-out effective date. The opt-out effective date for 
the Phoenix area is June 10, 1998. This June 10, 1998, opt-out 
effective date applies to retailers, wholesale purchaser-consumers, 
refiners, importers, and distributors. For a further discussion see 63 
FR 6653, February 10, 1998.
    In today's final action, EPA is amending Sec. 80.70(m) to reflect 
that Phoenix will not be a covered area in the federal RFG program as 
of June 10, 1998. This amendment will conform the regulations with 
EPA's approval of the Governor of Arizona's petition to opt-out of the 
federal reformulated gasoline (RFG) program for the Phoenix area, and 
removal of the requirement to sell federal RFG in the Phoenix serious 
ozone nonattainment area as of June 10, 1998.

III. Public Participation

    EPA is issuing this final rule without prior notice and comment. 
The rulemaking procedures provided in section 307(d) of the Act do not 
apply when the Agency for good cause finds that the notice and comment 
procedures under section 307(d) of the Act are impracticable, 
unnecessary, or contrary to the public interest. CAA section 307(d)(1). 
This expedited rulemaking procedure is based on the fact that EPA is 
amending the CFR today to reflect the approval of Arizona's opt-out 
petition, based on criteria in EPA regulations for opting out of the 
federal RFG program.
    EPA is simply making a ministerial change to the list of RFG 
covered areas in the CFR so the list of covered areas in 40 CFR 80.70 
will conform to EPA's approval of the Phoenix opt-out request. That 
approval is a separate action and is not the subject of this rule. For 
these reasons, EPA finds that notice and comment procedures under 
section 307(d)(1) of the Act are unnecessary. EPA also finds these 
circumstances provide good cause under 5 U.S.C. 553(d) for this 
expedited effective date.

IV. Environmental Impact

    Although Arizona has decided to opt-out of the federal RFG program 
for the Phoenix area, Arizona is replacing the RFG program with a State 
clean fuel program in its SIP. Under the Arizona fuel program, refiners 
may provide either a federal RFG-like fuel or a California RFG-like 
fuel. The state fuel program is expected to achieve air quality 
benefits similar to those achieved by federal RFG. Thus, the Phoenix 
area will continue to benefit from the use of a clean burning gasoline. 
The type of gasoline used in an area does affect its air quality. 
Gasoline vapors and vehicle exhaust contain VOCs and NOX 
that react in the atmosphere in the presence of sunlight and heat to 
produce ozone, a major component of smog. Vehicles also release toxic 
emissions, one of which (benzene) is a known human carcinogen. Cleaner 
burning gasolines, such as federal and California RFG contain less of 
the ingredients that contribute to these harmful forms of air 
pollution. Consequently, these gasolines reduce the exposure of the 
U.S. public overall to ozone and certain air toxics.
    Cleaner burning gasolines such as federal and California RFG 
generally provide reductions in ozone-forming VOC emissions, toxic 
emissions, and NOX emissions. Reductions in VOCs are 
environmentally significant because of the associated reductions in 
ozone formation and in secondary formation of

[[Page 43048]]

particulate matter, with the associated improvements in human health 
and welfare. Exposure to ground-level ozone (or smog) can damage 
sensitive lung tissue, reduce lung function, cause lung inflammation, 
increase susceptibility to respiratory infection, and increase 
sensitivity of asthmatics to allergens (e.g., pollen) and other 
bronchoconstrictors. Symptoms from short-term exposure to ozone include 
coughing, eye and throat irritation, and chest pain. Animal studies 
suggest that long-term exposure (months to years) to ozone can damage 
lung tissue and may lead to chronic respiratory illness.
    Toxic emissions from motor vehicles have been estimated to account 
for roughly half of the total exposure of the urban U.S. population to 
toxic air emissions. Reductions in emissions of toxic air pollutants 
are environmentally important because they carry significant benefits 
for human health and welfare primarily by reducing the number of cancer 
cases each year. The reduction of benzene provides the majority of air 
toxics emission reductions from RFG. New monitoring data from the 1995 
EPA Air Quality Trends Report shows that in RFG areas, benzene was 
reduced by 43 percent. A number of adverse non-cancer health effects, 
such as eye, nose, and throat irritation, have also been associated 
with exposure to elevated levels of these air toxics.

V. Statutory Authority

    The Statutory authority for the action today is granted to EPA by 
sections 211(c) and (k), 301, and 307 of the Clean Air Act, as amended; 
42 U.S.C. 7545(c) and (k), 7601, 7607; and 5 U.S.C. 553(b).

VI. Regulatory Flexibility

    The Agency has determined that the rule being issued today is not 
subject to the Regulatory Flexibility Act (RFA), which generally 
requires an agency to conduct a regulatory flexibility analysis of any 
significant impact the rule will have on a substantial number of small 
entities. By its terms, the RFA applies only to rules subject to 
notice-and-comment rulemaking requirements under the Administrative 
Procedure Act (APA) or any other statute. Today's rule is not subject 
to notice and comment requirements under the APA or any other statute. 
As described above, EPA has determined that there is good cause for 
exempting this action from notice and comment requirements under 
section 307(d) of the Act. The Agency nonetheless has assessed the 
potential of this rule to adversely impact small entities. EPA has 
determined that this action will not have a significant economic impact 
on a substantial number of small entities. Today's final rule is a 
ministerial action to conform the list of covered areas in EPA 
regulations to reflect the effective date of EPA's approval of 
Phoenix's opt-out petition. This ministerial revision of the list of 
covered areas in the CFR does not have a significant impact on a 
substantial number of small entities, since it simply reflects the 
effective date of EPA's approval of the RFG opt-out petition for 
Phoenix. Because EPA's action to set the effective date for the opt out 
was not a rulemaking, it was not subject to the RFA. Nonetheless, EPA 
has determined that setting the effective date of EPA's approval of 
Phoenix's opt-out petition does not have a significant impact on a 
substantial number of small entities. EPA's approval of the opt-out 
petition, as well as today's rule conforming the list of covered areas 
to reflect the effective date of that approval, will affect only those 
refiners, importers or blenders of gasoline and gasoline distributors 
and retail stations that chose to produce, import, or sell RFG in the 
Phoenix ozone nonattainment area during the period that Phoenix was a 
covered area in the federal RFG program (July 3, 1997-June 10, 1998). 
These entities will no longer be required to comply with federal RFG 
requirements in the Phoenix area. Instead, for federal purposes, these 
entities will be subject to the federal anti-dumping and volatility 
requirements. Compliance with these requirements will be less 
burdensome than compliance with the federal RFG requirements.

VII. Executive Order 12866

    Under Executive Order 12866,4 the Agency must determine 
whether a regulation is ``significant'' and therefore subject to Office 
of Management and Budget (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:
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    \4\ See 58 FR 51735 (October 4, 1993).
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    (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 of 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 
this Executive Order.5
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    \5\ Id. At section 3(f) (1)-(4).
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    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.

VIII. Paperwork Reduction Act

    This action does not add any new requirements under the provisions 
of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. OMB has approved 
the information collection requirements contained in the final RFG/
antidumping rule and has assigned OMB control number 2060-0277 (EPA ICR 
No. 1951.03).
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information. An Agency may not 
conduct or sponsor, and a person is not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number. The OMB control number for EPA's regulations are listed 
in 40 CFR part 9 and 48 CFR Chapter 15.

IX. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA''), 
Pub. L. 104-4, establishes requirements for Federal agencies to assess 
the effects of their regulatory actions on State, local, or tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, or tribal governments in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to

[[Page 43049]]

identify and consider a reasonable number of regulatory alternatives 
and adopt the least costly, most cost-effective, or least burdensome 
alternative that achieves the objectives of the rule. The provisions of 
section 205 do not apply when they are inconsistent with applicable 
law. Moreover, section 205 allows EPA to adopt an alternative other 
than the least costly, most cost-effective, or least burdensome 
alternative if the Administrator publishes with the final rule an 
explanation why that alternative was not adopted. Before EPA 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including tribal governments, it 
must have developed under section 203 of the UMRA a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    Today's final rule contains no Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local or 
tribal governments or the private sector. The rule imposes no 
enforceable duty on any State, local or tribal governments or the 
private sector.

X. Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action to amend the CFR to reflect the removal 
of the federal RFG program from the Phoenix ozone nonattainment area 
must be filed in the United States Court of Appeals for the appropriate 
circuit by October 13, 1998. Filing a petition for reconsideration by 
the Administrator of this final rule does not affect the finality of 
this rule for the purposes of judicial review, nor does it extend the 
time within which a petition for judicial review may be filed, and 
shall not postpone the effectiveness of such rule or action. This 
action may not be challenged later in proceedings to enforce its 
requirements (see section 307(b)(2).)

XI. Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. However, section 808 provides that any rule for which 
the issuing agency for good cause finds (and incorporates the finding 
and a brief statement of reasons therefor in the rule) that notice and 
public procedure thereon are impracticable, unnecessary or contrary to 
the public interest, shall take effect at such time as the agency 
promulgating the rule determines. 5 U.S.C. 808(2). As stated 
previously, EPA has made such a good cause finding, including the 
reasons therefor, and established the date of publication as the 
effective date of this rule. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. The rule is 
not a major rule as defined by 5 U.S.C. 804(2).

XII. Children's Health Protection

    This final rule is not subject to E.O. 13045, entitled ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it does not involve decisions on 
environmental health risks or safety risks that may disproportionately 
affect children.

List of Subjects in 40 CFR Part 80

    Environmental protection, Fuel additives, Gasoline, Imports, 
Labeling, Motor vehicle pollution, Penalties, Reporting and 
recordkeeping requirements.

    Dated: July 31, 1998.
Carol M. Browner,
Administrator.

    40 CFR part 80 is amended as follows:

PART 80--[AMENDED]

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

    Authority: Secs. 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 adding two sentences to the end of 
paragraph (m) to read as follows:


Sec. 80.70  Covered areas.

* * * * *
    (m) * * * The Phoenix, Arizona ozone nonattainment area is a 
covered area until June 10, 1998. As of June 10, 1998, the Phoenix area 
will no longer be a covered area.

[FR Doc. 98-21212 Filed 8-10-98; 8:45 am]
BILLING CODE 6560-50-P