[Federal Register Volume 64, Number 41 (Wednesday, March 3, 1999)]
[Rules and Regulations]
[Pages 10366-10371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5233]



[[Page 10365]]

_______________________________________________________________________

Part IV





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 80



Regulation of Fuels and Fuel Additives: Extension of the Reformulated 
Gasoline Program to the St. Louis, Missouri Moderate Ozone 
Nonattainment Area; Final Rule

  Federal Register / Vol. 64, No. 41 / Wednesday, March 3, 1999 / Rules 
and Regulations  

[[Page 10366]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[FRL-6306-1]


Regulation of Fuels and Fuel Additives: Extension of the 
Reformulated Gasoline Program To the St. Louis, Missouri Moderate Ozone 
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Under section 211(k)(6) of the Clean Air Act, as amended 
(Act), the Administrator of EPA must require the sale of reformulated 
gasoline (RFG) in ozone nonattainment areas upon the application of the 
governor of the state in which the nonattainment area is located. This 
final action extends the Act's prohibition against the sale of 
conventional (i.e., non-reformulated) gasoline in RFG areas to the St. 
Louis, Missouri moderate ozone nonattainment area. The Agency will 
implement this prohibition on May 1, 1999, for all persons other than 
retailers and wholesale purchaser-consumers (i.e., refiners, importers, 
and distributors). For retailers and wholesale purchaser-consumers, 
EPA's final action implements the prohibition on June 1, 1999, as 
requested by Governor Mel Carnahan of the state of Missouri. On June 1, 
1999, the St. Louis ozone nonattainment area will be a covered area for 
all purposes in the federal RFG program.

DATES: This final rule is effective February 25, 1999.

ADDRESSES: Materials relevant to this document have been placed in 
Docket A-98-38. 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 from 8:00 a.m. to 5:30 p.m. A reasonable fee may be charged 
for copying docket materials.
    An identical docket is also located in EPA's Region VII office in 
Docket A-98-38. The docket is located at 726 Minnesota Avenue, Kansas 
City, Kansas, 66101. In Region VII contact Wayne G. Leidwanger at (913) 
551-7607 or Royan Teter at (913) 551-7609. 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.

FOR FURTHER INFORMATION CONTACT: Karen Smith at U.S. Environmental 
Protection Agency, Office of Air and Radiation, 401 M Street, SW 
(6406J), Washington, DC 20460, (202) 564-9674.

SUPPLEMENTARY INFORMATION: Under section 211(k)(6) of the Clean Air 
Act, as amended (Act), the Administrator of EPA must require the sale 
of reformulated gasoline in an ozone nonattainment area classified as 
Marginal, Moderate, Serious, or Severe upon the application of the 
governor of the state in which the nonattainment area is located. This 
final action extends the prohibition set forth in section 211(k)(5) 
against the sale of conventional (i.e., non-reformulated) gasoline to 
the St. Louis, Missouri moderate ozone nonattainment area. The Agency 
is finalizing the implementation date of the prohibition described 
herein to take effect on May 1, 1999 for all persons other than 
retailers and wholesale purchaser-consumers (i.e., refiners, importers, 
and distributors). For retailers and wholesale purchaser-consumers, EPA 
is finalizing the implementation of the prohibition described herein to 
take effect June 1, 1999 as requested by Governor Mel Carnahan of the 
state of Missouri. As of the implementation date for retailers and 
wholesale purchaser-consumers, the St. Louis ozone nonattainment area 
will be a covered area for all purposes in the federal RFG program.
    The final preamble and regulatory language are also available 
electronically from the EPA internet Web site. This service is free of 
charge, except for any cost you already incur for internet 
connectivity. A copy of the Federal Register version is made available 
on the day of publication on the primary Web site listed below. The EPA 
Office of Mobile Sources also publishes these final notices on the 
secondary Web site listed below.

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)
    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, supply or distribute motor gasoline. Regulated 
categories and entities include:

------------------------------------------------------------------------
 Category/examples regulated
          entities              U.S. NAICS title          NAIC code
------------------------------------------------------------------------
Petroleum Refiners..........  Petroleum Refiners..  324110.
Motor vehicle gasoline        Petroleum Bulk        422710.
 distributors.                 Stations and
                               Terminals.
Motor vehicle gasoline        Petroleum and         4227, 422720.
 distributors.                 Petroleum Products
                               Wholesalers.
Retailers...................  Gasoline Stations...  447, 4471.
------------------------------------------------------------------------

    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 is 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.
    The remainder of this final rulemaking is organized in the 
following sections:

I. Background
    A. Clean Air Act Opt-in Provision
    B. EPA Procedures and Missouri Opt-In Request
II. Action
III. Response to Comments
    A. Comments Regarding Gasoline Supply
    B. Comments on State Oxygen Content Standard
    C. Comments on Regulatory Flexibility Analysis
IV. Environmental Impact
V. Administrative Designation and Regulatory Analysis
    A. Executive Order 12866
    B. Regulatory Flexibility
    C. Executive Order 12875: Enhancing Intergovernmental 
Partnerships
    D. Executive Order 13084: Consultation and Coordination with 
Indian Tribal Governments
    E. Unfunded Mandates

[[Page 10367]]

    F. Paperwork Reduction Act
    G. Children's Health Protection
    H. National Technology Transfer and Advancement Act of 1995 
(NTTAA)
    I. Statutory Authority
    J. Judicial Review
    K. Submission to Congress

I. Background

A. Clean Air Act Opt-in Provision

    As part of the Clean Air Act Amendments of 1990, Congress added a 
new subsection (k) to section 211 of the Act. Subsection (k) prohibits 
the sale of gasoline that EPA has not certified as reformulated 
(``conventional gasoline'') in the nine worst ozone nonattainment areas 
beginning January 1, 1995. Section 211(k)(10)(D) defines the areas 
covered by the reformulated gasoline (RFG) program as the nine ozone 
nonattainment areas having a 1980 population in excess of 250,000 and 
having the highest ozone design values during the period 1987 through 
1989.\1\ Under section 211(k)(10)(D), any area reclassified as a severe 
ozone nonattainment area under section 181(b) is also to be included in 
the RFG program, such as Sacramento, California. EPA first published 
final regulations for the RFG program on February 16, 1994. See 59 FR 
7716.
---------------------------------------------------------------------------

    \1\ Applying these criteria, EPA has determined the nine covered 
areas to be the metropolitan areas including Los Angeles, Houston, 
New York City, Baltimore, Chicago, San Diego, Philadelphia, Hartford 
and Milwaukee.
---------------------------------------------------------------------------

    Other ozone nonattainment areas may be included in the program at 
the request of the Governor of the state in which the area is located. 
Section 211(k)(6)(A) provides that upon the application of a Governor, 
EPA shall apply the prohibition against selling conventional gasoline 
in ``any area in the State classified under subpart 2 of Part D of 
Title I as a Marginal, Moderate, Serious or Severe'' ozone 
nonattainment area. Subparagraph 211(k)(6)(A) further provides that EPA 
is to apply the prohibition as of the date the Administrator ``deems 
appropriate, not later than January 1, 1995, or 1 year after such 
application is received, whichever is later.'' In some cases the 
effective date may be extended for such an area as provided in section 
211(k)(6)(B) based on a determination by EPA that there is 
``insufficient domestic capacity to produce'' RFG. Finally, EPA is to 
publish a governor's application in the Federal Register.
    Although section 211(k)(6) provides EPA discretion to establish the 
effective date for this prohibition to apply to such areas, EPA does 
not have discretion to deny a Governor's request. Therefore, the scope 
of EPA's Notice of Proposed Rulemaking (NPRM) was limited to proposing 
an effective date for St. Louis' opt-in to the RFG program. EPA 
solicited comments addressing the proposed implementation date and 
stated in the NPRM that it was not soliciting comments that supported 
or opposed St. Louis' participating in the RFG program.

B. EPA Procedures and Missouri Opt-in Request

    EPA received an application July 13, 1998 from the Honorable Mel 
Carnahan, Governor of the State of Missouri, for the St. Louis moderate 
ozone nonattainment area to be included in the reformulated gasoline 
program. The Governor requested an implementation date of June 1, 1999. 
EPA published the Governor's letter in the Federal Register, as 
required by section 211(k)(6). On September 15, 1998 (63 FR 49317) EPA 
proposed to extend the RFG program to the St. Louis moderate ozone 
nonattainment area by setting two implementation dates. EPA proposed an 
effective date of May 1, 1999 for refiners, importers, and distributors 
and June 1, 1999 for retailers and wholesale purchaser-consumers. Today 
EPA is taking final action on that NPRM and establishing these 
effective dates for St. Louis' opt in to the RFG program.
    After publication of the NPRM, EPA did not receive a request for a 
public hearing. Since EPA did not receive a request for a public 
hearing, the scheduled hearing was canceled and the comment period 
ended on October 15, 1998.

II. Action

    Pursuant to the governor's letter and the provisions of section 
211(k)(6), EPA is today adopting regulations that apply the 
prohibitions of subsection 211(k)(5) to the St. Louis, Missouri 
moderate ozone nonattainment area as of May 1, 1999, for all persons 
other than retailers and wholesale purchaser-consumers. This date 
applies to the refinery level and all other points in the distribution 
system other than the retail level. For retailers and wholesale 
purchaser-consumers, EPA is adopting regulations that apply the 
prohibitions of subsection 211(k)(5) to the St. Louis, Missouri ozone 
nonattainment area on June 1, 1999. As of the June 1, 1999 
implementation date, this area will be treated as a covered area for 
all purposes of the federal RFG program.
    EPA believes the implementation dates adopted today not only 
respond to the Governor's request, but also achieve a reasonable 
balance between requiring the earliest possible start date to achieve 
air quality benefits in St. Louis and providing adequate lead time for 
industry to prepare for program implementation. These dates are 
consistent with the State's request that EPA require that RFG be sold 
in the St. Louis area at the beginning of the high ozone season, which 
begins June 1. These dates will provide environmental benefits by 
allowing St. Louis to achieve VOC reduction benefits for the 1999 VOC 
control season.
    EPA has concluded, based on its analysis of available information, 
including public comments received and discussed below (see III. 
Response to Comments), that the refining and distribution industry's 
capacity to supply federal RFG to St. Louis this summer exceeds the 
estimated demand. EPA has also concluded that the implementation dates 
adopted today provide adequate lead time to industry to set up storage 
and sales agreements to ensure supply of RFG to the St. Louis moderate 
ozone nonattainment area.

III. Response to Comments

    Only one party, an association representing the interests of 
independent gasoline marketers, submitted comments on the proposed 
rulemaking. The comments addressed three particular concerns. EPA is 
responding to each of these comments in this section.

A. Comments Regarding Gasoline Supply

    First, the commentor stated that EPA ignored the fact that the St. 
Louis metropolitan statistical area (MSA) extends into Illinois, an 
area that has its own summertime gasoline control (a Reid Vapor 
Pressure control of 7.2 psi). The commentor expressed concern that 
gasoline shortages in the St. Louis area could result from EPA's 
granting of the opt-in request, due to the need to supply three 
different gasolines (conventional gasoline, reformulated gasoline and 
conventional gasoline meeting the IL summertime gasoline standard) to 
the St. Louis MSA and surrounding counties.
    Section 211(k)(6)(A) provides the Administrator broad discretion to 
establish an appropriate effective date for opt-in areas. The effective 
date shall be no later than one year after the governor's request to 
opt in is received, which in this case would be July 13, 1999. Factors 
EPA generally considers in setting effective dates include, but are not 
limited to, supply logistics, cost, potential price spikes, the number 
of current and potential suppliers for that market, whether such 
suppliers have experience producing RFG or the capability to produce 
RFG, intent of

[[Page 10368]]

suppliers to withdraw from the market, availability of adequate 
gasoline volumes, and the amount of lead time needed by suppliers and 
the distribution industry to set up storage and sales agreements to 
ensure supply. By evaluating these factors, EPA can make a 
determination as to whether industry's capacity to supply RFG for an 
opt-in area meets or exceeds the demand.
    As the commentor noted, under section 211(k)(6)(B) the 
Administrator may determine, after consultation with the Secretary of 
Energy, that there is ``insufficient domestic capacity'' to produce 
RFG. EPA is not making such a determination in this case. EPA has 
consulted with the Department of Engergy (DOE) and has concluded that 
there is adequate domestic capability to produce RFG to meet the 
current demand nationwide as well as the addition of the St. Louis area 
in the summer of 1999. The commentor provided no evidence to the 
contrary and no comments were received from bulk terminal operators 
concerned about storage capacity or supply.
    Based on the Energy Information Administration's (EIA) preliminary 
calculations (Docket A-98-38, II-D-02) using survey data and demand 
estimates, there are adequate RFG supplies for the areas currently 
considering opting in to the program. An estimated 63 thousand barrels 
per day of gasoline are required in St. Louis which could be covered by 
industry's current capacity to supply roughly an extra 300 thousand 
barrels per day of RFG in the eastern half of the U.S.
    EIA's information also demonstrates that St. Louis has the capacity 
to store about 25 days supply of gasoline and distillate, well within 
the industry standard of between 20 and 29 days supply of gasoline and 
distillate. The area has a 3,200 thousand-barrel storage capacity.
    The Missouri Department of Natural Resources convened a fuels 
summit in June 1998 to discuss various fuels options. EPA notes that no 
comments regarding supply concerns were made during the fuels summit 
held in St. Louis June 15-16, 1998. The final report issued by the 
facilitator of the fuels summit described the stakeholders' conclusions 
that RFG offered the benefit of continuity and stability, that the 
product is already in production, and that surplus capacity is 
available (see Docket A-98-38, II-D-03).
    The commentor expressed concern that the price differential between 
gasoline meeting Illinois' summertime RVP standard and RFG would lead 
to marketers providing different gasolines to meet each requirement. 
EPA data from the 1998 RFG compliance surveys indicates that RFG sold 
in the southern region of the country, on average, meets the 7.2 p.s.i 
standard that applies in East St. Louis. In any event, EPA believes 
that refiners can produce a single fuel which will meet both the low 
RVP requirements of the East St. Louis area and the fuel specifications 
of the RFG program. In addition, EPA notes that, in this action, it is 
simply setting an effective date for the St. Louis opt in, and does not 
have the discretion under Section 211(k)(6) to deny the governor's 
request to opt in. Therefore, even if a price differential would result 
in marketers' choosing to provide different gasolines to the Missouri 
portion of the St. Louis metropolitan area than to the Illinois 
portion, that result would not provide a basis for EPA's denial of the 
governor's request. Moreover, EPA is setting the effective date for the 
opt in close to one year from receipt of the governor's request. 
Postponing the effective date for two months (i.e., to approximately 
one year from receipt of the request) would likely not affect any price 
differential that may exist, and would result in the loss of important 
and needed emissions reductions for the summer of 1999.

B. Comments on State Oxygen Content Standard

    The commentor's second issue of concern is Missouri's interest in 
modifying or adopting a state regulation to increase the oxygenate 
content in RFG during the winter months for the five Missouri counties 
which have opted into the program. The commentor states that permitting 
Missouri to establish a 2.7% oxygenate requirement would essentially 
mandate the use of ethanol during the winter months. The commentor 
argues that this action would violate the Clean Air Act Amendments and 
also violates EPA's own stated policy regarding federal preemption and 
neutrality in oxygenate use.
    Missouri's adoption of state fuel controls in addition to its opt-
in to RFG is not relevant to establishing the effective date of the RFG 
program in St. Louis, which is the action being taken today. The agency 
does not have discretion under the Act to second guess the state's 
policy choice and deny the opt-in. Moreover, EPA has no authority to 
approve or disapprove a state fuel regulation if the state does not 
seek approval for the regulation through a section 211(c)(4)(C) waiver 
or ask that the regulation be approved into their state implementation 
plan. Therefore, the issue of whether the state decides to 
independently pursue an oxygenate requirement on top of the RFG program 
is not an issue in this rulemaking.

C. Comments on Regulatory Flexibility Analysis

    Finally, the commentor questions EPA's decision not to prepare a 
regulatory flexibility analysis in connection with this rulemaking. The 
commentor argues that if RFG is introduced in the Missouri counties of 
the St. Louis MSA without an examination of the potential supply impact 
on surrounding ozone nonattainment areas and attainment counties, many 
small businesses, including independent gasoline marketers, will be 
adversely affected and gasoline prices will rise.
    As noted in Section VI. B of this final rule, EPA has determined 
that its establishment of the effective date of May 1, 1999, for the 
St. Louis RFG opt in does not have a significant economic impact on a 
substantial number of small businesses. In promulgating the RFG and 
anti-dumping regulations, the Agency analyzed the impact of the 
regulations on small businesses. The Agency concluded that the 
regulations would not significantly affect small entities, such as 
gasoline blenders, terminal operators or service stations. See 59 FR 
7810-7811 (February 16, 1994). Moreover, all businesses, large and 
small, maintain the option to produce conventional gasoline to be sold 
in areas not covered by the RFG program. In addition, EPA does not have 
discretion to deny the governor's opt in request, but simply to set an 
effective date as described in Section 211(k)(6). Therefore, the impact 
relevant for this action is the impact, if any, on small entities of 
setting the effective date of May 1, 1999, not the impact of the 
State's decision to opt into the RFG program.
    The association commenting on this rulemaking challenged EPA's 
assertion in the NPRM that it is not necessary to prepare an additional 
regulatory flexibility analysis in connection with this rule. The 
association, which represents small independent gasoline marketers 
(retail outlets), argued that these small entities would experience a 
significant negative economic impact as a result of this proposed rule. 
They went on to say that if the EPA does not perform a more in-depth 
analysis of the gasoline supply consequences of the Missouri opt-in 
petition to assure that available supplies of all three St. Louis area 
fuels will be adequate, then the economic impact on a substantial 
number of small entities will be enormous.

[[Page 10369]]

    In response to this comment with respect to EPA's responsibility 
under the Regulatory Flexibility Act, it is important to first outline 
the requirements to refiners, bulk terminal operators and small 
retailers under the RFG program.
    Refiners carry the greatest level of burden when an area chooses to 
opt into the RFG program. Refiners must carry out a program of 
independent sample collection and analysis to establish the gasoline 
parameters reported to EPA. The independent lab must collect every 
sample. However, the refiner can have the lab test 100% of the samples 
or 10% of the samples and test the remainder themselves.
    Refiners are also required to meet regulations for segregating RFG 
from conventional gasoline and other blendstocks which may require some 
additional tankage. Product transfer documents must accompany RFG 
batches to assure its compliance with EPA regulations. It is important 
to note that no refiners commented on this rulemaking. In fact, during 
the fuel summit the RFG option was highlighted for its ease of 
implementation (See Air Docket, A-98-39, II-D-03).
    Bulk terminals have some oversight regulations including the 
maintenance of product transfer documents for up to five years. Bulk 
terminals are also responsible for segregation of RFG from conventional 
gasoline and other blendstocks. Bulk terminals are required to follow 
EPA regulations for the transition from winter time to summer time 
gasoline. As the presumptive liability is the same for refiners, 
terminal owners and retailers, some bulk terminals may choose to 
conduct their own quality assurance testing. No bulk terminal operators 
or owners commented on this final rule.
    It remains EPA's position that compliance with the requirements of 
the RFG rule creates only minimal burdens for gasoline retailers. 
Retailers have no reporting requirements, although they are required to 
maintain product transfer documents for five years. Maintaining product 
transfer documents is a customary business practice as the same 
documents are maintained for relevant tax purposes. Unlike other 
parties, retailers have no quality assurance testing requirements. 
Among other things, retailers are required to ensure a smooth 
transition between winter time and summer time gasoline, however this 
requirement is also necessary under the requirements of EPA's 
volatility regulations so no modification to current practices is 
necessary. Retailers are also prohibited from commingling RFG 
containing Methyl Tertiary Butyl Ether (MTBE) with RFG containing 
ethanol. Retailers must also assure that conventional gasoline (CG) is 
not sold in an opt-in area. This can be achieved by carefully 
monitoring product transfer documents and refusing any gasoline which 
is labeled as conventional gasoline.
    For the St. Louis area in particular, the Agency does not agree 
with the commentor's arguments regarding supply concerns and their 
effect on small entities. As described in Section III.A. of this 
notice, EPA has concluded that there will be sufficient supplies of RFG 
to meet the demand in St. Louis. Our most recent analysis indicates 
that the St. Louis area maintains a capacity to store 4.63 million 
barrels of product at five companies operating bulk terminal facilities 
in the St. Louis area.2 Since the commentor's concern about 
small entity impacts is based on concerns about adequate supplies, 
EPA's conclusion that adequate supply does exist supports the Agency's 
finding that setting the effective date of May 1, 1999, for the St. 
Louis opt in does not have a significant impact on a substantial number 
of small entities. A complete analysis of the effect of the RFG/anti-
dumping regulations on small businesses is contained in the Regulatory 
Flexibility Analysis which was prepared for the RFG and anti-dumping 
rulemaking, and can be found in the docket for that rulemaking (Docket 
No. A-92-12).
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    \2\ The Petroleum Terminal Encyclopedia, 1997, published by Oil 
Price Information Service
---------------------------------------------------------------------------

IV. Environmental Impact

    The federal RFG program provides reductions in ozone-forming VOC 
emissions, air toxics, and starting in 2000, oxides of nitrogen 
(NOX). Reductions in VOCs and NOX are 
environmentally significant because they lead to reductions in ozone 
formation and in secondary formation of particulate matter, with the 
associated improvements in human health and welfare. Exposure to 
ground-level ozone (or smog) can cause respiratory problems, chest 
pain, and coughing and may worsen bronchitis, emphysema, and asthma. 
Studies suggest that long-term exposure (months to years) to ozone can 
damage lung tissue and may lead to chronic respiratory illness. 
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.
    Missouri's modeling estimates that once federal RFG is required to 
be sold in St. Louis, VOC emissions will be cut by an additional 5.53 
tons/day over the VOC reductions from its current low volatility (RVP) 
gasoline requirement of 7.0 psi. In addition, all vehicles will have 
improved emissions and the area will also get reductions in toxic 
emissions.

V. Administrative Designation and Regulatory Analysis

A. Executive Order 12866

    Under Executive Order 12866,3 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:
---------------------------------------------------------------------------

    \3\ See 58 FR 51735 (October 4, 1993).
---------------------------------------------------------------------------

    (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.4
---------------------------------------------------------------------------

    \4\ Id. at section 3(f)(1)-(4).
---------------------------------------------------------------------------

    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.

B. Regulatory Flexibility

    EPA has determined that it is not necessary to prepare a regulatory 
flexibility analysis in connection with this rule. EPA has also 
determined that this rule would not have a significant economic impact 
on a substantial number of small entities.
    In promulgating the RFG and the related anti-dumping regulations, 
the Agency analyzed the impact of the regulations on small businesses. 
The Agency concluded that the regulations could have some economic 
effect on a substantial number of small refiners, but that the 
regulations would not significantly affect other small entities, such 
as gasoline blenders, terminal operators, service stations and ethanol 
blenders. See 59 FR 7810-7811 (February 16, 1994). A complete

[[Page 10370]]

analysis of the effect of the RFG/anti-dumping regulations on small 
businesses is contained in the Regulatory Flexibility Analysis which 
was prepared for the RFG and anti-dumping rulemaking, and can be found 
in the docket for that rulemaking (Docket No. A-92-12).
    Today's rule will affect only those refiners, importers or blenders 
of gasoline that choose to produce or import RFG for sale in the St. 
Louis ozone nonattainment area, and gasoline distributors and retail 
stations in those areas. EPA has determined that, because of their 
location, the vast majority of small refiners would be unaffected by 
the RFG requirements. Most small refiners are located in the mountain 
states or in California, which has its own RFG program, therefore, the 
vast majority of small refiners are unaffected by the federal RFG 
requirements finalized today.
    Other small entities, such as gasoline distributors and retail 
stations located in St. Louis, which will become a covered area as a 
result of today's action, will be subject to the same requirements as 
those small entities which are located in current RFG covered areas. 
The St. Louis area is currently served by five companies operating bulk 
terminal facilities in the St. Louis area. EPA has not evaluated 
whether any of these companies would be considered small under the RFA. 
Nonetheless, given the minimal regulatory burdens and the small number 
of bulk terminal companies potentially subject to these RFG 
requirements, EPA believes today's action will not result in a 
significant impact on a substantial number of small bulk terminals. As 
for gasoline retailers, as stated earlier, EPA's position remains that 
the RFG rule creates only minimal burdens. The EPA believes that even 
in the aggregate (i.e., considering all impacts on all of the types of 
business potentially subject to regulation by today's action), approval 
of the St. Louis opt-in request will not result in a significant impact 
on a substantial number of small entities. Based on the foregoing 
information, EPA certifies that this final rule does not have a 
significant adverse impact on a substantial number of small entities.

C. Executive Order 12875: Enhancing Intergovernmental Partnerships

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, copies of any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of State, local and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.''
    Today's rule does not create a mandate on State, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of Executive 
Order 12875 do not apply to this rule.

D. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Today's final rule does not 
create a mandate for any tribal governments. The rule does not impose 
any enforceable duties on these entities. Today's rule will affect only 
those refiners, importers or blenders of gasoline that choose to 
produce or import RFG for sale in the St. Louis ozone nonattainment 
area, and gasoline distributors and retail stations in those areas. 
Accordingly, the requirements of section 3(b) of Executive Order 13084 
do not apply to this rule.

E. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``UMRA''), P.L. 104-4, EPA must prepare a budgetary impact statement 
to accompany any general notice of proposed rulemaking or final rule 
that includes a Federal mandate which may result in estimated costs to 
State, local, or tribal governments in the aggregate, or to the private 
sector, of $100 million or more in any one year. Under Section 205, for 
any rule subject to Section 202 EPA generally must select the least 
costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Under Section 203, before establishing any regulatory 
requirements that may significantly or uniquely affect small 
governments, EPA must take steps to inform and advise small governments 
of the requirements and enable them to provide input.
    EPA has determined that today's rule does not trigger the 
requirements of UMRA. The rule does not include a Federal mandate that 
may result in estimated annual costs to State, local or tribal 
governments in the aggregate, or to the private sector, of $100 million 
or more, and it does not establish regulatory requirements that may 
significantly or uniquely affect small governments.

F. 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. The Office of 
Management and Budget (OMB) has approved the information collection 
requirements that apply to the RFG/anti-dumping program, and has 
assigned OMB control number 2060-0277 (EPA ICR NO. 1591.10).
    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

[[Page 10371]]

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 numbers for EPA's regulations are listed in 40 CFR Part 
9 and 48 CFR Chapter 15.

G. Children's Health Protection

    This rule is not subject to E.O. 13045, entitled ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62FR19885, 
April 23, 1997), because it does not involve decisions on environmental 
health risks or safety risks that may disproportionately affect 
children. This action will reduce Nox and VOC emissions which are 
precursors to ozone. This action will benefit children.

H. National Technology Transfer and Advancement Act of 1995 (NTTAA)

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Pub L. No. 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This rulemaking does not involve technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards.

I. Statutory Authority

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

J. Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action to extend the federal RFG program to the 
St. Louis ozone nonattainment area must be filed in the United States 
Court of Appeals for the appropriate circuit by [date of 
Administrator's signature + 60 days]. 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 my 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)).

K. Submission to Congress

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, 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 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 80

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

    Dated: February 25, 1999.
Carol M. Browner,
Administrator.

    40 CFR part 80 is amended as follows:

PART 80--REGULATION OF FUELS AND FUEL ADDITIVES

    1. The authority citation for part 80 is revised 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 paragraph (n) to read as 
follows:


Sec. 80.70  Covered areas.

* * * * *
    (n) The prohibitions of section 211(k)(5) of the act will apply to 
all persons other than retailers and wholesale purchaser-consumers on 
May 1, 1999. The prohibitions of section 211(k)(5) of the act will 
apply to retailers and wholesale purchaser-consumers on June 1, 1999. 
As of the effective date for retailers and wholesale purchaser-
consumers, the St. Louis, Missouri ozone nonattainment area is a 
covered area. The geographical extent of the covered area listed in 
this paragraph shall be the nonattainment boundaries for the St. Louis 
ozone nonattainment area as specified in 40 CFR 81.326.

[FR Doc. 99-5233 Filed 3-2-99; 8:45 am]
BILLING CODE 6560-50-P