[Federal Register Volume 71, Number 248 (Wednesday, December 27, 2006)]
[Proposed Rules]
[Pages 77690-77694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-22161]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[EPA-HQ-OAR-2006-0841; FRL-8261-8]


Regulation of Fuels and Fuel Additives: Extension of the 
Reformulated Gasoline Program to the East St. Louis, IL Ozone 
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Under section 211(k)(6) of the Clean Air Act, the 
Administrator of EPA shall require the sale of reformulated gasoline 
(RFG) in an ozone nonattainment area upon the application of the 
Governor of the State in which the nonattainment area is located. This 
notice proposes to extend the Act's prohibition against the sale of 
conventional (i.e., non-reformulated) gasoline in RFG areas to the 
Illinois portion of the St. Louis, Missouri-Illinois 8-hour ozone 
nonattainment area hereafter referred to as the East St. Louis, 
Illinois nonattainment area. The Agency proposes to implement this 
prohibition on May 1, 2007, for all persons other than retailers and 
wholesale purchaser-consumers (i.e., refiners, importers, and 
distributors). For retailers and wholesale purchaser-consumers, EPA 
proposes to implement the prohibition on June 1, 2007. On June 1, 2007, 
the East St. Louis ozone nonattainment area would be a covered area for 
all purposes in the federal RFG program. EPA seeks comment on 
alternative implementation dates it could establish if unexpected 
delays in issuing the final rule render the proposed implementation 
dates impractical.

DATES: Comments on this proposed rule must be received in writing by 
January 26, 2007. To request a public hearing, contact Kurt Gustafson 
at (202) 343-9219 or [email protected]. If a hearing is requested 
no later than January 16, 2007, a hearing will be held at a time and 
place to be published in the Federal Register. Persons wishing to 
testify at a public hearing must contact Kurt Gustafson at (202) 343-
9219, and submit copies of their testimony to the docket and to Kurt 
Gustafson at the addresses below, no later than 10 days prior to the 
hearing. After the hearing, the docket for this rulemaking will remain 
open for an additional 30 days to receive comments. If a hearing is 
held, EPA will publish a document in the Federal Register extending the 
comment period for 30 days after the hearing.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2006-0841, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     Mail: Air Docket, Environmental Protection Agency, 
Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, 
Attention Docket ID No. EPA-HQ-OAR-2006-0841. Comments may also be e-
mailed to [email protected]. 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.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2006-0841. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://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 http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, 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 http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you

[[Page 77691]]

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.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., 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 http://www.regulations.gov or in hard copy at the Air 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 Docket is (202) 566-1742.


    Note: The EPA Docket Center suffered damage due to flooding 
during the last week of June 2006. The Docket Center is continuing 
to operate. However, during the cleanup, there will be temporary 
changes to Docket Center telephone numbers, addresses, and hours of 
operation for people who wish to make hand deliveries or visit the 
Public Reading Room to view documents. Consult EPA's Federal 
Register notice at 71 FR 38147 (July 5, 2006) or the EPA Web site at 
 http://www.epa.gov/epahome/dockets.htm for current information on 
docket operations, locations and telephone numbers. The Docket 
Center's mailing address for U.S. mail and the procedure for 
submitting comments to www.regulations.gov are not affected by the 
flooding and will remain the same.


FOR FURTHER INFORMATION CONTACT: Kurt Gustafson, Transportation and 
Regional Programs Division (Mail Code 6406J), Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone 
number: 202-343-9219; fax number: 202-343-2800; e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION: In the ``Rules and Regulations'' section of 
today's Federal Register, we are setting forth this amendment to the 
federal RFG regulations as a direct final rule without prior proposal 
because we view this as a noncontroversial amendment and anticipate no 
adverse comment. We have explained our reasons for this approach 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 rule 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.
    This document concerns the amendment to EPA's regulations governing 
RFG and the prohibition of the sale of conventional gasoline supplied 
to the East St. Louis area of Illinois. For further information, 
including the regulatory language, please see the information provided 
in the direct final rule of the same title which is located in the 
``Rules and Regulations'' section of this Federal Register.

I. Public Participation and Effective Date

A. Public Comments

    Section 211(k)(6) states that, ``[u]pon the application of the 
Governor of a State, the Administrator shall apply the prohibition'' 
against the sale of conventional gasoline in any area of the State 
classified as marginal, moderate, serious, or severe for ozone. 
Although section 211(k)(6) provides EPA some discretion to establish 
the effective date for this prohibition, and allows EPA to consider 
whether there is sufficient domestic capacity to produce RFG in 
establishing the effective date, EPA does not have discretion to deny a 
Governor's request. Therefore, the scope of this action is limited to 
setting an effective date for East St. Louis' opt-in to the RFG 
program, and not to decide whether East St. Louis should in fact opt 
in. For this reason, EPA is only soliciting comments addressing the 
implementation date and whether there is sufficient capacity to produce 
RFG, and is not soliciting comments that support or oppose East St. 
Louis' participating in the program.
    EPA is proposing implementation dates for this rule of May 1, 2007, 
for all persons other than retailers and wholesale purchaser-consumers, 
and June 1, 2007 for retailers and purchaser-consumers. These dates 
coincide with the dates that regulated parties are to switch from 
producing or dispensing RFG with a wintertime formulation, to producing 
or dispensing VOC-controlled RFG for the summer ozone season. Section 
211(k)(6)(A) of the Act stipulates that the effective date of an RFG 
opt-in must be no later than one year after the application of the 
Governor is received. In this case, therefore, the effective date could 
be no later than July 10, 2007. EPA solicits comment on the proposed 
implementation dates, and also solicits comment on alternative 
implementation dates that could be used in the event that EPA is unable 
to issue a final rule quickly enough to use the proposed implementation 
dates.
    Persons with comments containing proprietary information must 
distinguish such information from other comments to the greatest extent 
and label it as ``Confidential Business Information.'' If a person 
making comments wants EPA to base the final rule in part on a 
submission labeled as confidential business information, then a non-
confidential version of the document which summarizes the key data or 
information should be placed in the public docket. Information covered 
by a claim of confidentiality will be disclosed by EPA only to the 
extent allowed by the procedures set forth in 40 CFR part 2. If no 
claim of confidentiality accompanies the submission when it is received 
by EPA, it may be made available to the public without further notice 
to the person making comments.

B. Public Hearing Procedures

    Any person desiring to present testimony regarding this proposed 
rule at the public hearing (see DATES) should notify the contact person 
listed above of such intent as soon as possible. A sign-up sheet will 
be available at the registration table the morning of the hearing for 
scheduling testimony for those who have not notified the contact 
person. This testimony will be scheduled on a first come, first served 
basis to follow the previously scheduled testimony. EPA suggests that 
approximately 50 copies of the statement or material to be presented be 
brought to the hearing for distribution to the audience. In addition, 
EPA would find it helpful to receive an advance copy of any statement 
or material to be presented at the hearing in order to give EPA staff 
adequate time to review such material before the hearing. Such advance 
copies should be submitted to the contact person listed above.
    The official record of the hearing will be kept open for 30 days 
following the hearing to allow submission of rebuttal and supplementary 
testimony. All such submittals should be directed to the Air Docket, 
Docket No. EPA-HQ-OAR-2006-0841 (see ADDRESSES).

[[Page 77692]]

    The Director of EPA's Transportation and Regional Programs 
Division, Office of Transportation and Air Quality, or her designee, is 
hereby designated Presiding Officer of the hearing. The hearing will be 
conducted informally and technical rules of evidence will not apply. 
Because a public hearing is designed to give interested parties an 
opportunity to participate in the proceeding, there are no adversary 
parties as such. Statements by participants will not be subject to 
cross examination by other participants. A written transcript of the 
hearing will be placed in the above docket for review. Anyone desiring 
to purchase a copy of the transcript should make individual 
arrangements with the court reporter recording the proceeding. The 
Presiding Officer is authorized to strike from the record statements 
which he/she deems irrelevant or repetitious and to impose reasonable 
limits on the duration of the statement of any witness. This 
information will be available for public inspection at the EPA Air 
Docket, Docket No. EPA-HQ-OAR-2006-0841 (see ADDRESSES).

II. Background

    The background for this proposal, including the text of the letter 
from the Governor of Illinois requesting that RFG requirements be 
applied in the East St. Louis ozone nonattainment area, is set forth in 
the companion direct final rule also published in today's Federal 
Register.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO. EPA notes that the 
economic impacts of the RFG program were assessed in EPA's Regulatory 
Impact Analysis for the 1994 RFG rules. See 59 FR 7810-7811 (February 
16, 1994). In that analysis the production cost of RFG was estimated to 
be 4 to 8 cents per gallon more than conventional gasoline. Since 
conventional gas regulations have evolved since that time to be more 
like RFG and since the State has a low RVP requirement that also more 
closely resembles RFG, EPA expects the costs of RFG in the East St. 
Louis area to be at the low end or lower than this range. Nonetheless, 
using the 4 to 8 cent per gallon estimate, the cost of the program in 
East St. Louis would be significantly lower than the trigger for a 
significant regulatory action.

B. Paperwork Reduction Act

    This action does not impose an information collection burden 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 (see 
59 FR 7716, February 16, 1994), and has assigned OMB control number 
2060-0277 (EPA ICR No. 1951.08).
    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.

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 that 
has not more than 1,500 employees (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.
    In promulgating the RFG and the related anti-dumping regulations 
for conventional gasoline, the Agency analyzed the impact of the 
regulations on small businesses. The Agency concluded that the 
regulations may possibly have some economic effect on a substantial 
number of small refiners, but that the regulations may 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). As stated in the preamble to the final 
RFG/anti-dumping rule, exempting small refiners from the RFG 
regulations would result in the failure of meeting CAA standards. 59 FR 
7810. However, since most small refiners are located in the mountain 
states or in California, which has its own RFG program, the vast 
majority of small refiners are unaffected by the federal RFG 
requirements (although all refiners of conventional gasoline are 
subject to the anti-dumping requirements). Moreover, all businesses, 
large and small, maintain the option to produce conventional gasoline 
to be sold in areas not obligated by the Act to receive RFG or those 
areas which have not chosen to opt into the RFG program. 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. The docket number is: EPA Air Docket 
A-92-12.
    Today's proposed rule will affect only those refiners, importers or 
blenders of gasoline that choose to produce or import RFG for sale in 
the East St. Louis ozone nonattainment area, and gasoline distributors 
and retail stations in those areas. As discussed above, EPA determined 
that, because of their location, the vast majority of small refiners 
would be unaffected by the RFG requirements. For the same reason, most 
small refiners will be unaffected by today's action. Other small 
entities, such as gasoline distributors and retail stations located in 
East St. Louis, which will become a covered area as a result of today's 
proposed rule, will be subject to the same requirements as those small 
entities which are located in current RFG covered areas. The Agency did 
not find the RFG regulations to significantly affect these entities. 
Based on this, EPA certifies that this proposed rule would not have a 
significant adverse impact on a substantial number of small entities.

[[Page 77693]]

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, 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.
    EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments, in the aggregate, or the private 
sector in any one year. Thus, today's proposed rule is not subject to 
the requirements of sections 202 and 205 of the UMRA. Although EPA does 
not believe that UMRA imposes requirements for this rulemaking, EPA 
notes that the environmental and economic impacts of the RFG program 
were assessed in EPA's Regulatory Impact Analysis for the 1994 RFG 
rules.

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 will 
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. The proposed rule would only 
impose requirements on certain refiners and other entities in the 
gasoline distribution system, and not on States. The requirements of 
the proposed rule will be enforced by the federal government at the 
national level. Thus, Executive Order 13132 does not apply to this 
proposed 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 9, 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.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. 
Today's proposed rule will affect only those refiners, importers or 
blenders of gasoline that choose to produce or import RFG for sale in 
the East St. Louis ozone nonattainment area, and gasoline distributors 
and retail stations in those areas. Thus, Executive Order 13175 does 
not apply to this rule.

G. Executive Order 13045: Protection of Children from Environmental 
Health & Safety Risks

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health 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 section 5-501 of 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.

H. Executive Order 13211: Actions that Significantly Effect Energy 
Supply

    This proposed rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it 
is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Section 12(d) of Public Law 104-113, directs us to 
use voluntary consensus standards in our regulatory activities unless 
it 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) developed or adopted by voluntary consensus standards 
bodies. The NTTAA directs us to provide Congress, through OMB, 
explanations when we decide not to use available and applicable 
voluntary consensus standards. This proposed rulemaking does not 
involve technical standards. Therefore, EPA is not considering the use 
of any voluntary consensus standards.

J. Statutory Authority

    The Statutory authority for the action proposed 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.

List of Subjects in 40 CFR Part 80

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


[[Page 77694]]


    Dated: December 20, 2006.
Stephen L. Johnson,
Administrator.
 [FR Doc. E6-22161 Filed 12-26-06; 8:45 am]
BILLING CODE 6560-50-P