[Federal Register Volume 71, Number 35 (Wednesday, February 22, 2006)]
[Proposed Rules]
[Pages 9070-9078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1611]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[EPA-HQ-OAR-2005-0170; FRL-8034-9]


Regulation of Fuels and Fuel Additives: Removal of Reformulated 
Gasoline Oxygen Content Requirement and Revision of Commingling 
Prohibition To Address Non-Oxygenated Reformulated Gasoline

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: In the Energy Policy Act of 2005 (Energy Act), Congress 
removed the oxygen content requirement for reformulated gasoline (RFG) 
in section 211(k) of the Clean Air Act (CAA). To be consistent with the 
current CAA Section 211(k), this rule would amend the fuels regulations 
at 40 CFR Part 80 to remove the oxygen content requirement for RFG. 
This rule also would remove requirements which were included in the 
regulations to implement and ensure compliance with the oxygen content 
requirement. In addition, this rule would extend the current 
prohibition against combining VOC-controlled RFG blended with ethanol 
with VOC-controlled RFG blended with any other type of oxygenate from 
January 1 through September 15, to also prohibit combining VOC-
controlled RFG blended with ethanol with non-oxygenated VOC-controlled 
RFG during that time period, except in limited circumstances authorized 
by the Act.
    In the ``Rules and Regulations'' section of the Federal Register, 
we are issuing these amendments to the RFG regulations as a direct 
final rule without prior proposal because we view them as 
noncontroversial amendments and anticipate no adverse comment. We have 
explained our reasons for these amendments in the preamble to the 
direct final rule. If we receive no adverse comment, we will not take 
further action on this proposed rule. If we receive adverse comment, we 
will withdraw the direct final fuel and it will not take effect. We 
will address all public comments in a subsequent final rule based on 
this proposed rule. We will not institute a second comment period on 
this action. Any parties interested in commenting must do so at this 
time.

DATES: Comments: Comments must be received on or before March 24, 2006. 
Under the Paperwork Reduction Act, comments on the information 
collection provisions must be received by OMB on or before March 24, 
2006.
    Hearings: If EPA receives a request from a person wishing to speak 
at a public hearing by March 9, 2006, a public hearing will be held on 
March 24, 2006. If a public hearing is requested, it will be held at a 
time and location to be announced in a subsequent Federal Register 
notice. To request to speak at a public hearing, send a request to the 
contact in FOR FURTHER INFORMATION CONTACT.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2005-0170 by one of the following methods:
    1. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    2. E-mail: Group [email protected]. Attention Docket ID No. 
OAR-2005-0170.
    4. Mail: Air and Radiation Docket, Environmental Protection Agency, 
Mailcode: 6406J, 1200 Pennsylvania Ave., NW., Washington, DC 20460. 
Please include a total of two copies. In addition, please mail a copy 
of your comments on the information collection provisions to the Office 
of Information and Regulatory Affairs, Office of Management and Budget 
(OMB), Attn: Desk Officer for EPA, 725 17th St. NW., Washington, DC 
20503.
    5. Hand Delivery: EPA Docket Center, Environmental Protection 
Agency, 1301 Constitution Avenue, NW., Room B102, Mail Code 6102T, 
Washington, DC 20460. Such deliveries are only accepted during the 
Docket's normal hours of operation, and special arrangements should be 
made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2005-0170. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' systems, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov 
your e-mail address will be automatically

[[Page 9071]]

captured and included as part of the comment that is placed in the 
public docket and made available on the Internet. If you submit an 
electronic comment, EPA recommends that you include your name and other 
contact information in the body of your comment and with any disk or 
CD-ROM you submit. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment. Electronic files should avoid the use of 
special characters, any form of encryption, and be free of any defects 
or viruses. For additional information about EPA's public docket visit 
the EPA Docket Center Home page at http://www.epa.gov/epahome/dockets.htm.
    We are only taking comment on issues related to the removal of the 
oxygen requirement for RFG and associated compliance requirements, and 
the provisions regarding the combining of ethanol blended RFG with non-
oxygenated RFG and provisions for retailers regarding the combining of 
ethanol blended RFG with non-ethanol blended RFG. Comments on any other 
issues or provisions in the RFG regulations are beyond the scope of 
this rulemaking.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air and Radiation Docket, 
EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, 
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
Air and Radiation Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Marilyn Bennett, Transportation and 
Regional Programs Division, Office of Transportation and Air Quality 
(6406J), Environmental Protection Agency, 1200 Pennsylvania Avenue, 
NW., Washington, DC 20460; telephone number: (202) 343-9624; fax 
number: (202) 343-2803; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION: For further information, please see the 
information provided in the direct final action that is located in the 
``Rules and Regulations'' section of this Federal Register publication.

I. General Information

A. Does This Action Apply To Me?

    Entities potentially affected by this action include those involved 
with the production and importation of conventional gasoline motor 
fuel. Regulated categories and entities affected by this action 
include:

------------------------------------------------------------------------
                       NAICS codes               Examples of potentially
       Category             a       SIC codes b     regulated parties
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Industry.............       324110         2911  Petroleum Refiners,
                                                  Importers.
Industry.............       422710         5171  Gasoline Marketers and
                                                  Distributors.
                            422720         5172
Industry.............       484220         4212  Gasoline Carriers.
                            484230        4213
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a North American Industry Classification System (NAICS).
b Standard Industrial Classification (SIC) system code.

    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 be potentially regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your entity is regulated by this action, you should carefully examine 
the applicability criteria of part 80, subparts D, E and F of title 40 
of the Code of Federal Regulations. If you have any question regarding 
applicability of this action to a particular entity, consult the person 
in the preceding FOR FURTHER INFORMATION CONTACT section above.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI). In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    2. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified.
    3. Docket Copying Costs. You may be charged a reasonable fee for 
photocopying docket materials, as provided in 40 CFR part 2.

C. Outline of This Preamble

I. General Information
II. Removal of the RFG Oxygen Content Requirement
III. Combining Ethanol Blended RFG With Non-Ethanol Blended RFG
IV. Environmental Effects of This Action
V. Statutory and Executive Order Reviews
VI. Statutory Provisions and Legal Authority

[[Page 9072]]

II. Removal of the RFG Oxygen Content Requirement

    Section 211(k) of the 1990 Amendments to the Clean Air Act (CAA) 
required reformulated gasoline (RFG) to contain oxygen in an amount 
that equals or exceeds 2.0 weight percent. CAA Section 211(k)(2)(B). 
Accordingly, EPA's current regulations require RFG refiners, importers 
and oxygenate blenders to meet a 2.0 or greater weight percent oxygen 
content standard. 40 CFR 80.41. Recently, Congress passed legislation 
which amends Section 211(k) of the CAA to remove the RFG oxygen 
requirement.\1\ To be consistent with the current CAA Section 211(k), 
today's proposed rule would modify the RFG regulations to remove the 
oxygen standard in Sec.  80.41.\2\
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    \1\ Energy Policy Act of 2005, Pub. L. 109-58 (HR6), section 
1504(a), 119 STAT 594, 1076-1077 (2005).
    \2\ The RFG regulations were promulgated under authority of CAA 
Section 211(c) as well as CAA Section 211(k). The regulations were 
adopted under Section 211(c) primarily for the purpose of applying 
the preemption provisions in section 211(c)(4). See 59 FR 7809 
(February 16, 1994.)
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    Today's proposed rule would also modify several other sections of 
the RFG regulations which contain provisions designed to implement and 
ensure compliance with the oxygen standard. The proposed modifications 
to the affected sections are listed in the following table:
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    \3\ The regulations also include oxygen minimum standards for 
simple model RFG and Phase I complex Model RFG, and an oxygen 
maximum standard for simple model RFG. See Sec. Sec.  80.41(a) 
through (d), and (g). These standards are no longer in effect and 
today's rule would not modify the regulations to remove these 
standards or compliance requirements relating to these standards, 
except where such requirements are included in provisions requiring 
other changes in today's rule.

Sec.   80.2(ii)...........................  Would remove oxygen in the
                                             definition of
                                             ``reformulated gasoline
                                             credit.'' With the removal
                                             of the oxygen standard,
                                             there would be no basis for
                                             the generation oxygen
                                             credits.
Sec.  Sec.   80.41(e) and (f) \3\.........  Would remove the per-gallon
                                             and averaged oxygen
                                             standard for Phase II
                                             Complex Model RFG
Sec.   80.41(o)...........................  Would remove the provisions
                                             relating to oxygen survey
                                             failures. With the removal
                                             of the oxygen standard,
                                             oxygen surveys would not
                                             longer be needed.
Sec.   80.41(q)...........................  Would remove reference to
                                             Sec.   180.41(o). Also
                                             would remove reference to
                                             oxygenate blenders since
                                             oxygenate blenders were
                                             subject only to adjusted
                                             standards in the case of an
                                             oxygen survey failure and
                                             not any other survey
                                             failure.
Sec.   80.65 heading......................  Would remove oxygenate
                                             blenders from the heading
                                             since oxygenate blenders
                                             were only responsible for
                                             demonstrating compliance
                                             with the oxygen standard
                                             which would be removed.
Sec.   80.65(c)...........................  Would remove requirements
                                             relating to compliance with
                                             the oxygen standard which
                                             would be removed.
Sec.   80.65(d)...........................  Would remove the designation
                                             requirement relating to
                                             oxygen content, remove the
                                             RBOB designation categories
                                             of ``any oxygenate'' and
                                             ``ether only,'and add a
                                             requirement for RBOB to be
                                             designated regarding the
                                             type and amount of
                                             oxygenate required to be
                                             added.
Sec.   80.65(e)...........................  Would remove the requirement
                                             for oxygen test results to
                                             be received prior to the
                                             gasoline leaving the
                                             refinery or importer
                                             facility since there would
                                             no longer be an oxygen per-
                                             gallon minimum standard.
Sec.   80.65(h)...........................  Would remove the requirement
                                             for oxygenate blenders to
                                             comply with the audit
                                             requirements under subpart
                                             F since they would no
                                             longer be a requirement to
                                             demonstrate compliance with
                                             the oxygen standard.
Sec.   80.67(a)...........................  Would remove the option to
                                             comply with the oxygen
                                             standard on average for
                                             oxygenate blenders since
                                             there no longer would be an
                                             oxygen standard. Also would
                                             remove provisions for
                                             refiners and importers to
                                             use gasoline that exceeds
                                             the average standard for
                                             oxygen to offset gasoline
                                             which does not achieve the
                                             average standard for
                                             oxygen.
Sec.   80.67(b)...........................  Would remove requirements
                                             relating to oxygenate
                                             blenders who meet the
                                             oxygen standard on average
                                             since there no longer would
                                             be an oxygen standard.
Sec.   80.67(f)...........................  Would remove requirements
                                             relating to compliance with
                                             the oxygen standard on
                                             average since there no
                                             longer would be an oxygen
                                             standard.
Sec.   80.67(g)...........................  Would remove requirements
                                             relating to compliance
                                             calculations for meeting
                                             the oxygen standard on
                                             average, since there no
                                             longer would be an oxygen
                                             standard. Also would remove
                                             requirements relating to
                                             the generation and use of
                                             oxygen credits.
Sec.   80.67(h)...........................  Would remove requirements
                                             relating to the transfer of
                                             oxygen credits.
Sec.   80.68(a) and (b)...................  Would remove references to
                                             oxygenate blenders since,
                                             with the removal of the
                                             requirement for oxygen
                                             survey, they would no
                                             longer be subject to survey
                                             requirements. Also would
                                             remove reference to oxygen
                                             regarding consequences of a
                                             failure to conduct a
                                             required survey.
Sec.   80.68(c)...........................  Would remove general survey
                                             requirements relating to
                                             oxygen surveys.
Sec.   80.73..............................  Would clarify the
                                             applicability of this
                                             section to oxygenate
                                             blenders.
Sec.   80.74(c)...........................  Would remove recordkeeping
                                             requirements for oxygenate
                                             blenders who comply with
                                             the oxygen standard on
                                             average, since they would
                                             no longer be required to
                                             demonstrate compliance with
                                             an oxygen standard. Also
                                             would remove reference to
                                             ``types'' of credits, since
                                             there would now only be one
                                             type of credit (i.e.,
                                             benzene.)
Sec.   80.74(d)...........................  Would revise this paragraph
                                             to clarify recordkeeping
                                             requirements for oxygenate
                                             blenders.
Sec.   80.75 heading and paragraph (a)....  Would remove reporting
                                             requirements for oxygenate
                                             blenders since they would
                                             no longer be required to
                                             demonstrate compliance with
                                             an oxygen standard.
Sec.   80.75(f)...........................  Would remove requirement for
                                             submitting oxygen averaging
                                             reports since there would
                                             no longer be a requirement
                                             to comply with the oxygen
                                             standard.
Sec.   80.75(h)...........................  Would remove credit transfer
                                             report requirements for
                                             oxygen credits, since
                                             oxygen credits would no
                                             longer be generated.
Sec.   80.75(i)...........................  Would remove requirement for
                                             oxygenate blenders to
                                             submit a report identifying
                                             each covered area that was
                                             supplied with averaged RFG,
                                             since they would no longer
                                             be required to demonstrate
                                             compliance with an oxygen
                                             standard.
Sec.   80.75(l)...........................  Would remove reporting
                                             requirement for oxygenate
                                             blenders who comply with
                                             the oxygen standard on a
                                             per-gallon basis, since
                                             they would no longer be
                                             required to demonstrate
                                             compliance with an oxygen
                                             standard.
Sec.   80.75(m)...........................  Would remove requirement for
                                             oxygenate blenders to
                                             submit a report of the
                                             audit required under Sec.
                                             80.65(h), since oxygenate
                                             blenders would no longer be
                                             required to comply with the
                                             audit requirement.
Sec.   80.75(n)...........................  Would remove requirement for
                                             oxygenate blenders to have
                                             reports signed and
                                             certified, since they would
                                             no longer be required to
                                             submit reports under this
                                             section.
Sec.   80.76(a)...........................  Would clarify registration
                                             requirements for oxygenate
                                             blenders.

[[Page 9073]]

 
Sec.   80.77(g)...........................  Would remove product
                                             transfer documentation
                                             requirement for oxygen
                                             content.
Sec.   80.77(i)...........................  Would remove requirement for
                                             RBOB to be identified on
                                             product transfer documents
                                             as suitable for blending
                                             with ``any-oxygenate,''
                                             ``ether-only,'' since these
                                             categories would be
                                             removed.
Sec.   80.78(a)...........................  Would remove the prohibition
                                             against producing and
                                             marketing RFG that does not
                                             meet the oxygen minimum
                                             standard since the oxygen
                                             standard would be removed.
                                             Also would remove
                                             requirements to meet the
                                             oxygen minimum standard
                                             during transition from RBOB
                                             to RFG in a storage tank.
                                             (Today's rule would also
                                             remove the provision in
                                             Sec.   80.78(a)(1)
                                             regarding compliance with
                                             the maximum oxygen standard
                                             in Sec.   80.41 for simple
                                             model RFG. See footnote 3.)
Sec.   80.79..............................  Would remove quality
                                             assurance requirement to
                                             test for compliance with
                                             the oxygen standard.
Sec.   80.81(b)...........................  Would remove exemptions for
                                             California gasoline survey
                                             and independent analysis
                                             requirements for oxygenate
                                             blenders since they would
                                             no longer be subject to
                                             these requirements.
Sec.   80.125(a), (c) and (d).............  Would remove attest
                                             engagement auditor
                                             requirements for oxygenate
                                             blenders, since they would
                                             no longer be required to
                                             conduct attest engagement
                                             audits.
Sec.   80.126(b)..........................  Would revise attest
                                             engagement definition of
                                             credit trading records to
                                             remove reference to oxygen
                                             credits.
Sec.   80.128(e)..........................  Would remove reference to
                                             RBOB designations of ``any-
                                             oxygenate'' and ``ether-
                                             only'' with regard to
                                             refiner and importer
                                             contracts with downstream
                                             oxygenate blenders, since
                                             these designations would be
                                             removed from the
                                             regulations.
Sec.   80.129.............................  Would remove and reserve
                                             this section which provided
                                             for alternative attest
                                             engagement procedures for
                                             oxygenate blenders, since
                                             they would no longer be
                                             required to conduct attest
                                             audits.
Sec.   80.130(a)..........................  Would remove requirement for
                                             a certified public
                                             accountant or an internal
                                             auditor certified by the
                                             Institute of Internal
                                             Auditors, Inc. to issue an
                                             attest engagement report to
                                             blenders, since they would
                                             no longer be required to
                                             conduct attest audits.
                                             Would remove requirement
                                             for blenders to provide a
                                             copy of the auditor's
                                             report to EPA.
Sec.   80.133(h)..........................  Would remove references to
                                             ``any-oxygenate'' and
                                             ``ether-only'' RBOB under
                                             Sec.   80.69(a)(8) since
                                             this section would be
                                             removed.
Sec.   80.134.............................  Would remove this section
                                             which provides attest
                                             procedures for oxygenate
                                             blenders since they would
                                             no longer be required to
                                             conduct attest audits.
 

    Today's proposed rule would also modify the provisions for 
downstream oxygenate blending in Sec.  80.69. Under the current 
regulations, some refiners and importers produce or import a product 
called ``reformulated gasoline blendstock for oxygenate blending,'' or 
RBOB, which is gasoline that becomes RFG upon the addition of an 
oxygenate. The refiner or importer of the RBOB determines the type(s) 
and amount (or range of amounts) of oxygenate that must be added to the 
RBOB. The RBOB is then transported to an oxygenate blender downstream 
from the refiner or importer who adds the type and amount of oxygenate 
designated for the RBOB by the refiner or importer. The RBOB refiner or 
importer includes the designated amount of oxygenate in its emissions 
performance compliance calculations for the RBOB, however, it is the 
oxygenate blender who actually adds the oxygenate to the RBOB to comply 
with the 2.0 weight percent oxygen standard for the RFG that is 
produced by blending oxygenate into the RBOB. The regulations require 
oxygenate blenders to conduct testing for oxygen content to ensure that 
each batch of RFG complies with the oxygen standard. With the removal 
of the oxygen standard, the current requirement for oxygenate blenders 
to conduct testing to ensure compliance with the oxygen standard would 
no longer be necessary. Accordingly, today's rule would modify Sec.  
80.69 to remove the requirement for oxygenate blenders to test RFG for 
compliance with the oxygen standard.
    Although there would no longer be an oxygen content requirement, we 
believe that many refiners and importers would want to continue to 
include oxygenate blended downstream in their emissions performance 
compliance calculations. As a result, the category of RBOB would be 
retained and RBOB refiners and importers would be required to comply 
with the contract and quality assurance (QA) oversight requirements in 
Sec.  80.69 for any RBOB produced or imported.\4\
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    \4\ EPA is developing a rule which would allow RBOB refiners and 
importers to use an alternative method of quality assurance (QA) 
oversight of downstream oxygenate blenders in lieu of the contract 
and QA requirements in Sec. Sec.  80.78(a)(6) and (a)(7). This 
alternative method consists of a QA sampling and testing survey 
program carried out by an independent surveyor pursuant to a survey 
plan approved by EPA. This alternative QA method is available to 
RBOB refiners and importers under enforcement discretion until the 
rule is promulgated, or December 31, 2007, whichever is earlier. See 
Letter to Edward H. Murphy, American Petroleum Institute, dated 
December 22, 2005, from Grant Y. Nakayama, Assistant Administrator, 
Office of Enforcement and Compliance Assurance, U.S. Environmental 
Protection Agency.
---------------------------------------------------------------------------

    Under the current regulations, RBOB refiners and importers are 
required to have a contract with the downstream oxygenate blender and 
conduct QA oversight testing of the oxygenate blending operation to 
ensure that the proper type and amount of oxygenate is added 
downstream. Section 80.69(a)(6) and (7). The regulations also provide 
that, in lieu of complying with these requirements, a refiner or 
importer may designate one of two generic categories of oxygenates to 
be added to the RBOB, and assume for purposes of its emissions 
compliance calculations that the minimum amount of oxygenate needed to 
result in RFG containing 2.0 weight percent oxygen will be added 
downstream. Section 80.69(a)(8). RBOB refiner or importer compliance 
with the contract and oversight requirements is not required in this 
situation because, as discussed above, the oxygenate blender has been 
required to meet the 2.0 weight percent oxygen standard and conduct 
testing designed to ensure that each batch of RFG complies with the 
oxygen standard.\5\ Where an RBOB refiner or importer wishes to include 
a larger amount of oxygenate in its compliance calculations (i.e, an 
amount that would result in RFG containing more than 2.0 weight percent 
oxygen), the refiner or importer must comply with the contract and 
oversight requirements in Sec.  80.69(a)(6) and (7) to ensure that the 
proper type and amount of oxygenate is added.
---------------------------------------------------------------------------

    \5\ For a discussion of the downstream oxygenate blending 
requirements, see the preamble to the RFG final rule at 59 FR 7770 
(February 16, 1994).
---------------------------------------------------------------------------

    Because oxygenate blenders would no longer be conducting testing to 
ensure compliance with the oxygen standard, we believe that RBOB 
refiner or importer compliance with the contract and QA oversight 
requirements would be necessary for RBOB designated to be blended with 
any amount of oxygenate, including an amount of oxygenate which would 
result in RFG containing 2.0 weight percent (or less) oxygen. As a 
result, today's rule would require RBOB refiners and importers to 
comply with the contract and QA oversight requirements in Sec.  80.69 
for any RBOB produced or imported. This approach is consistent with the 
oversight

[[Page 9074]]

requirements in Sec.  80.101(d)(4) for refiners and importers of 
conventional gasoline who wish to include oxygen added downstream from 
the refinery or importer in anti-dumping emissions compliance 
calculations.
    Although oxygenate blenders would no longer be subject to the 
oxygen standard and associated testing requirements, we believe that 
the current requirements for oxygenate blenders to be registered with 
EPA, to add the specific type(s) and amount (or range of amounts) of 
oxygenate designated for the RBOB, and to maintain records of their 
blending operation continue to be necessary in order to ensure 
compliance with, and facilitate enforcement of, the emissions 
performance standards for RFG produced by blending oxygenate with RBOB 
downstream. As a result, these oxygenate blender requirements would be 
retained.
    We anticipate that the effective date for the removal of the oxygen 
requirement would occur during 2006. As a result, refiners, importers 
and oxygenate blenders would be subject to the oxygen standard for the 
months in 2006 prior to the effective date of this rule. The current 
regulations allow parties to demonstrate compliance either on a per-
gallon basis or on an annual average basis. Parties wishing to base 
their compliance on the per-gallon requirements, would be able to 
formulate and sell RFG without oxygen after the effective date of the 
rule. EPA would interpret its regulations regarding annual averaging as 
follows. Parties would be able to demonstrate compliance based on the 
average oxygen content of RFG during the months prior to the effective 
date for the removal of the oxygen content requirement. In addition, 
any refiner, importer or oxygenate blender who is unable to meet the 
annual average oxygen standard in 2006 based on the months prior to the 
effective date for the removal of the oxygen content requirement would 
be able to include all of the oxygenated RFG it produces or imports 
during 2006 in its annual average compliance calculations.

III. Combining Ethanol Blended RFG With Non-Ethanol Blended RFG

    As discussed above, Section 211(k) required RFG to contain a 
minimum of 2.0 weight percent oxygen, and the current fuels regulations 
reflect this requirement. Refiners, importers and oxygenate blenders 
have used different oxygenates to meet this requirement. RFG that 
contains ethanol must be specially blended to account for the RVP 
``boost'' that ethanol provides, and the consequent possibility of 
increased VOC emissions. EPA's existing regulations prohibit the 
commingling of ethanol-blended RFG with RFG containing other oxygenates 
because the non-ethanol RFG is typically not able to be mixed with 
ethanol and still comply with the VOC performance standards. Since all 
RFG is currently required to contain oxygen, the regulations do not now 
contain a prohibition against combining ethanol-blended RFG with non-
oxygenated RFG. With the removal of the oxygen content requirement for 
RFG, EPA expects that refiners and importers will be producing some RFG 
without oxygen and some with ethanol or other oxygenates. Mixing 
ethanol-blended RFG with non-oxygenated RFG has the same potential to 
create an RVP ``boost'' for the non-oxygenated gasoline as mixing 
ethanol-blended RFG with RFG blended with other oxygenates. This is of 
particular concern regarding RFG because most refiners and importers 
comply with the RFG VOC emissions performance standard on an annual 
average basis calculated at the point of production or importation. All 
downstream parties are prohibited from marketing RFG which does not 
comply with a less stringent downstream VOC standard. However, even 
though the combined gasoline may meet the downstream VOC standard, 
combining ethanol-blended RFG with non-oxygenated RFG may cause some 
gasoline to have VOC emissions which are higher on average than the 
gasoline as produced or imported. Thus, today's rule would extend the 
commingling prohibition currently in the fuels regulations to include a 
prohibition against combining VOC-controlled ethanol-blended RFG with 
VOC-controlled non-oxygenated RFG during the period January 1 through 
September 15, with one exception, described below.
    The Energy Act contains a provision which specifically addresses 
the combining of ethanol-blended RFG with non-ethanol-blended RFG.\6\ 
This new provision allows retail outlets to sell non-ethanol-blended 
RFG which has been combined with ethanol-blended RFG under certain 
conditions. First, each batch of gasoline to be blended must have been 
``individually certified as in compliance with subsections (h) and (k) 
prior to being blended.'' Second, the retailer must notify EPA prior to 
combining the gasolines and identify the exact location of the retail 
outlet and specific tank in which the gasoline is to be combined. 
Third, the retailer must retain, and, upon request by EPA, make 
available for inspection certifications accounting for all gasoline at 
the retail outlet. Fourth, retailers are prohibited from combining VOC-
controlled gasoline with non-VOC-controlled gasoline between June 1 and 
September 15. Retailers are also limited with regard to the frequency 
in which batches of non-ethanol-blended RFG may be combined with 
ethanol-blended RFG. Retailers may combine such batches of RFG a 
maximum of two periods between May 1 and September 15. Each period may 
be no more than 10 consecutive calendar days. Today's rule would 
implement this provision of the Energy Act.
---------------------------------------------------------------------------

    \6\ Energy Policy Act of 2005, Pub. L. 109-58 (HR6), section 
1513, 119 STAT 594, 1088-1090 (2005).
---------------------------------------------------------------------------

    This provision will typically be used by retail stations to change 
from the use of RFG containing ethanol to RFG not containing ethanol or 
vice versa. (Such a change is usually referred to as a ``tank 
turnover.'') Such blending can result in additional VOC emissions, 
perhaps resulting in gasoline that does not comply with downstream VOC 
standards. The Energy Act is unclear as to when the gasoline in the 
tank where blending occurs must be in compliance with the downstream 
VOC standard.
    EPA has already promulgated regulations setting out a methodology 
for making tank turnovers. 40 CFR 80.78(a)(10). EPA believes retailers 
and wholesale purchaser-consumers should have additional flexibility 
during the time that they are converting their tanks from one type of 
RFG to another, while minimizing the time period during which non-
compliant gasoline is present in their tanks and being sold. Today's 
changes would provide additional flexibility to the regulated parties 
by interpreting the Energy Act to provide retailers and wholesale 
purchaser-consumers with relief from compliance with the downstream VOC 
standard during the ten-day blending period, but requiring that the 
gasoline in the tank thereafter be in compliance or be deemed in 
compliance with the downstream VOC standard.
    To provide assurance that gasoline is in compliance with the 
downstream VOC standard after the ten-day period, we propose that there 
be two options available for retailers and wholesale purchaser-
consumers. Under the first option, the retailer may add both ethanol-
blended RFG and non-ethanol-blended RFG to the same tank an unlimited 
number of times during the ten-day period, but must test the gasoline 
in the tank at the end of the ten-day period to make sure that the RFG 
is in compliance with the VOC standard. Under the second option, the

[[Page 9075]]

retailer must draw the tank down as much as practicable at the start of 
the ten-day period, before RFG of another type is added to the tank, 
and add only RFG of one type to the tank during the ten-day period. 
That is, the retailer may not add both ethanol-blended RFG and non-
ethanol-blended RFG to the tank during the ten-day period, but may add 
only one of these types of RFG. EPA believes that when retailers and 
wholesale purchaser-consumers use this second option it is likely that 
their gasoline will comply with the downstream VOC standard at the end 
of the ten-day period, so that testing will not be necessary. We also 
believe that this approach is compatible with current practices of most 
retailers and wholesale purchaser-consumers, and expect that most will 
find it preferable to testing at the end of the ten-day period.
    The commingling provisions apply at a retail level such that each 
retailer may take advantage of a maximum of two ten-day blending 
periods between May 1 and September 15 of each calendar year. Thus, the 
options described above would be available to each retail outlet for 
each of two ten-day periods during the VOC control period. During each 
ten-day period the options would be available for all tanks at that 
retail outlet.
    Regarding the requirement that each batch of gasoline to be blended 
must have been individually certified as in compliance with subsections 
(h) and (k), EPA notes that all gasoline in compliance with RFG 
requirements is deemed certified under Section 211(k) pursuant to Sec.  
80.40(a). Section 211(h) addresses RVP requirements for gasoline, but 
EPA does not have a program to certify gasoline as in compliance with 
this provision. For purposes of the commingling exception for retail 
outlets which would be incorporated in the regulations at Sec.  
80.78(a)(8), EPA would deem gasoline that is in compliance with the 
regulatory requirements implementing Section 211(h) to be certified 
under that section. Regarding the requirement that retailers retain and 
make available to EPA upon request ``certifications'' accounting for 
all gasoline at the retail outlet, EPA would deem this requirement 
fulfilled where the retailer retains and makes available to EPA, upon 
request, the product transfer documentation required under Sec.  80.77 
for all gasoline at the retail outlet.
    Under today's proposed rule, the provisions blended RFG would also 
apply to wholesale purchaser-consumers. Like retailers, wholesale 
purchaser-consumers are parties who dispense gasoline into vehicles, 
and EPA interprets the Energy Act reference to retailers as applying 
equally to them. As a result, wholesale purchaser-consumers would be 
treated in the same manner as retailers under this rule. This is 
consistent with the manner in which wholesale purchaser-consumers have 
been treated in the past under the fuels regulations.
    Most of the provisions of this proposed rule are necessary to 
implement amendments to the Clean Air Act included in the Energy Act 
that eliminate the RFG oxygen content requirement and allow limited 
commingling of ethanol-blended and non-ethanol-blended RFG. The 
extension of the general commingling prohibition in the fuels 
regulations to cover non-oxygenated RFG, and the provisions requiring 
refiners and importers to conduct oversight of downstream blenders 
adding oxygen to RBOB, are necessary because of the Energy Act 
amendments, but would be issued pursuant to authority of CAA Section 
211(k). Both provisions would extend current programs to reflect the 
presence of non-oxygenated RFG, and are designed to enhance 
environmental benefits of the RFG program at reasonable cost to 
regulated parties.

IV. Environmental Effects of This Action

    We anticipate that little or no environmental impact would occur as 
a result of today's action to remove the oxygenate requirement for RFG. 
The RFG standards consist of content and emission performance 
standards. Refiners and importers would have to continue to meet all 
the emission performance standards for RFG whether or not the RFG 
contains any oxygenate. This includes both the VOC and NOX 
emission performance standards, as well as the air toxics emission 
performance standards which were tightened in the mobile source air 
toxics (MSAT) rule in 2001.\7\ New MSAT standards currently under 
development are anticipated to achieve even greater air toxics emission 
reductions.
---------------------------------------------------------------------------

    \7\ 66 FR 17230 (March 29, 2001).
---------------------------------------------------------------------------

    We have analyzed the potential impacts on emissions that could 
result from removal of the oxygenate requirement in the context of 
requests for waivers of the Federal oxygen requirement.\8\ We found 
that changes in ethanol use could lead to small increases in some 
emissions and small decreases in others while still meeting the RFG 
performance standards. These potential impacts are associated with the 
degree to which ethanol would continue to be blended into RFG after 
removal of the oxygen requirement. Past analyses have projected 
significant use of ethanol in RFG in California despite removal of the 
oxygenate requirement.\9\ Given current gasoline prices and the 
tightness in the gasoline market, the favorable economics of ethanol 
blending, a continuing concern over MTBE use by refiners, the emission 
performance standards still in place for RFG, and the upcoming 
renewable fuels mandate,\10\ we believe that ethanol will continue to 
be used in RFG after the oxygen requirement is removed, and that as 
MTBE is phased out, it is likely to be replaced with ethanol to a large 
degree despite the removal of the oxygenate requirement. As a result, 
we believe that the removal of the oxygenate mandate would have little 
or no environmental impact in the near future. We will be looking at 
the long term effect of oxygenate use in the context of the rulemaking 
to implement the renewable fuels mandate.
---------------------------------------------------------------------------

    \8\ See e.g., California Oxygen Waiver Decision, EPA420-S-05-005 
(June 2005); Analysis of and Action on New York Department of 
Conservation's Request for a Waiver of the Oxygen Content 
Requirement in Federal Reformulated Gasoline, EPA420-D-05-06 (June 
2005).
    \9\ Technical Support Document: Analysis of California's Request 
for Waiver of the Reformulated Gasoline Oxygen Content Requirement 
for California Covered Areas, EPA420-R-01-016 (June 2001).
    \10\ Energy Policy Act of 2005, Pub. L. 109-58 (HR6), section 
1501, 119 STAT 594, 1067-1076, (2005).
---------------------------------------------------------------------------

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the 
Agency must determine whether the regulatory action 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

[[Page 9076]]

    (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 proposed rule does not satisfy the 
criteria stated above. As a result, this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review. Today's proposed rule would remove 
certain requirements for all refiners, importers and oxygenate blenders 
of RFG. Although small additional costs may be incurred by some 
refiners and importers as a result of this rule, on balance, this rule 
is expected to greatly reduce overall compliance costs for all 
refiners, importers and oxygenate blenders. This rule would also 
provide options for retailers to commingle certain compliant gasoline 
which otherwise would be prohibited from being commingled. Although 
there may be small compliance costs associated with one of these 
options, we believe that the additional flexibility provided by this 
option would reduce overall compliance costs for these parties.

B. Paperwork Reduction Act

    The modifications to the RFG information collection requirements in 
this rule have been submitted for approval to the Office of Management 
and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. The modifications to the RFG information collection requirements 
are not enforceable until OMB approves them.
    This rule would have the effect of reducing the burdens on certain 
regulated parties under the reformulated gasoline regulations. All 
parties currently subject to the requirement to submit and annual 
oxygen averaging report would no longer be required to submit such 
report, resulting in an estimated total burden reduction of 100 hours 
and $6,500 (100 parties x 1 report/yr x 1 hr/report x $65/hr). 
Oxygenate blenders currently subject to the following requirements 
would no longer be subject to these requirements and associated 
burdens:
    RFG batch reports: Total 2500 hours, $162,500(25 blenders x 100 
reports/yr x 1 hr/report x $65/hr) plus $600,000 in purchased services;
    RFG annual report: Total 25 hours, $1,625(25 blenders x 1 report/yr 
x 1 hr/report x $65/hr);
    RFG survey reports: Total 500 hours, $32,500(25 blenders x 1 
report/yr x 20 hrs/report x $65/hr) plus $1,200,000 for purchased 
services:
    RFG attest engagement reports: Total 3000 hours, $195,000(25 
blenders x 1 report/yr x 120 hrs/report x $65/hr) plus $250,000 for 
purchased services.
    The estimated total reduction in burdens for this rule is 6,125 
hours and $398,125, plus $2,050,000 in purchased services.
    Small testing costs may be associated with one of the options for 
gasoline retailers to commingle compliance gasolines. However, these 
testing costs are expected to be minimal and would be greatly 
outweighed by the flexibility provided by the option to commingle 
compliant gasolines.
    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 numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is 
approved by OMB, the Agency will publish a technical amendment to 40 
CFR part 9 in the Federal Register to display the OMB control number 
for the approved information collection requirements contained in this 
proposed rule.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, EPA certifies that this action would not have a 
significant economic impact on a substantial number of small entities. 
In determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule.
    This proposed rule would remove certain requirements for all 
refiners, importers and oxygenate blenders of RFG, including small 
business refiners, importers and oxygenate blenders. Specifically, this 
rule would remove the burden on refiners, importers and oxygenate 
blenders to comply with the RFG oxygen requirement and associated 
compliance requirements. Although in certain situations some refiners 
and importers, including some small refiners and importers, may be 
required to conduct additional oversight of oxygenate blenders, we 
believe that the relief from the burden of complying with the oxygen 
requirement would more than outweigh the burden of having to conduct 
any additional oversight. This rule also would provide options for 
gasoline retailers, including small gasoline retailers, to commingle 
certain compliant gasoline which otherwise would be prohibited from 
being commingled. Although there may be small compliance costs 
associated with one of these options, we believe that the additional 
flexibility provided by this option would reduce overall compliance 
costs for these parties. We have therefore concluded that today's 
proposed rule would relieve regulatory burden for all small entities 
subject to the RFG regulations. We continue to be interested in the 
potential impacts of the

[[Page 9077]]

proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and 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, and 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 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 proposed 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 that would result in 
expenditures of $100 million or more. This proposed rule would affect 
gasoline refiners, importers and oxygenate blenders by removing the 
oxygen content requirement for RFG and associated compliance 
requirements. This rule also would allow gasoline retailers an option 
to commingle certain compliant gasoline which otherwise would be 
prohibited from being commingled. As a result, this rule would have the 
overall effect of reducing the burden of the RFG regulations on these 
regulated parties. Therefore, the requirements of the Unfunded Mandates 
Act do not apply to this action.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It would 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This rule would remove the 
oxygen standard for RFG and provide gasoline retailers the option to 
commingle certain compliance gasolines that otherwise would be 
prohibited from being commingled. The requirements of the rule would be 
enforced by the federal government at the national level. Thus, 
Executive Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It would not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
This rule would apply to gasoline refiners and importers who supply 
RFG, and to other parties downstream in the gasoline distribution 
system. Today's action contains certain modifications to the federal 
requirements for RFG, and would not impose any enforceable duties on 
communities of Indian tribal governments. Thus, Executive Order 13175 
does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under the Order has the potential to influence 
the regulation. This proposed rule is not subject to Executive Order 
13045 because it is not economically significant and does not establish 
an environmental standard intended to mitigate health or safety risks.

H. Executive Order 13211: Acts That Significantly Affect Energy Supply, 
Distribution, or Use

    This proposed rule would not be an economically ``significant 
energy action'' as defined in Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it would 
not have a significant adverse effect on the supply, distribution, or 
use of energy. This rule would eliminate the oxygen content requirement 
for RFG and associated compliance requirements. This change would have 
the effect of reducing burdens on suppliers of RFG, which, in turn, may 
have a positive effect on gasoline supplies. RFG refiners and blenders 
may continue to use oxygenates at their discretion where and

[[Page 9078]]

when it is most economical to do so. With the implementation of the 
renewable fuels standard also contained in the Energy Act, the blending 
of ethanol, in particular, into gasoline is expected to increase 
considerably, not decrease. Therefore, despite this action to remove 
the oxygenate mandate in RFG, when viewed in the context of companion 
energy legislation, overall use of oxygenates is expected to increase 
in the future. This rule also would allow gasoline retailers to 
commingle certain compliant gasolines which otherwise would be 
prohibited from being commingled. This also may have a positive effect 
on gasoline supplies.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 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 proposed rule does not establish new technical standards 
within the meaning of the NTTAA. Therefore, EPA did not consider the 
use of any voluntary consensus standards.

VI. Statutory Provisions and Legal Authority

    The statutory authority for the actions in today's proposed rule 
comes from sections 211(c), 211(k) and 301(a) of the CAA.

List of Subjects in 40 CFR Part 80

    Environmental protection, Air pollution control, Fuel additives, 
Gasoline, Motor vehicle pollution, Reporting and recordkeeping 
requirements.

    Dated: February 14, 2006.
Stephen L. Johnson,
Administrator.
[FR Doc. 06-1611 Filed 2-21-06; 8:45 am]
BILLING CODE 6560-50-P