Regulation of Fuels and Fuel Additives: Removal of Reformulated Gasoline Oxygen Content Requirement for California Gasoline and Revision of Commingling Prohibition To Address Non-Oxygenated Reformulated Gasoline in California, 9064-9070 [06-1614]
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9064
Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Proposed Rules
apply. This rule does not impose an
information collection burden under the
provisions of Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 61
Environmental protection, Air
pollution control, Radionuclides,
Reporting, and recordkeeping
requirements.
Dated: January 27, 2006.
Julie M. Hagensen,
Acting Regional Administrator, Region 10.
[FR Doc. E6–2472 Filed 2–21–06; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 80
[EPA–HQ–OAR–2005–0170; FRL–8035–3]
Regulation of Fuels and Fuel
Additives: Removal of Reformulated
Gasoline Oxygen Content Requirement
for California Gasoline and Revision of
Commingling Prohibition To Address
Non-Oxygenated Reformulated
Gasoline in California
Environmental Protection
Agency (EPA).
ACTION: Notice of proposed rulemaking.
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AGENCY:
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). The
Energy Act specified that this change
was to be immediately effective in
California, and that it would be effective
270 days after enactment for the rest of
the country. This proposed rule would
amend the fuels regulations to remove
the oxygen content requirement for RFG
for gasoline produced and sold for use
in California, thereby making the fuels
regulations consistent with amended
Section 211(k). In addition, for gasoline
produced and sold for use in California,
this rule would extend the current
prohibition against combining VOCcontrolled 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 nonoxygenated VOC-controlled RFG during
that time period, except in limited
circumstances authorized by the Act.
The removal of the RFG oxygen
content requirement and revision of the
commingling prohibition for gasoline
produced and sold for use in all areas
of the country is being published in a
separate rulemaking that would have a
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later effective date than this California
specific rulemaking.
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. https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
2. E-mail: Group A-AND-RDOCKET@epa.gov. 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
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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 https://
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 https://
www.regulations.gov or e-mail. The
https://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 https://
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
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 homepage at https://
www.epa.gov/epahome/dockets.htm.
We are only taking comment on issues
related to the removal of the oxygen
requirement for RFG produced and sold
for use in California, and the provisions
regarding the combining of ethanol
blended California RFG with nonoxygenated California RFG and
provisions for retailers regarding the
combining of ethanol blended California
RFG with non-ethanol blended
California 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 https://
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,
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Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Proposed Rules
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in https://
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,
Category
Industry ....
Industry ....
Industry ....
a North
NAICS
codes a
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:
mbennett@epa.gov.
SUPPLEMENTARY INFORMATION: For
further information, please see the
SIC codes b
324110
422710
422720
484220
484230
2911
5171
5172
4212
4213
9065
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:
Examples of potentially regulated parties
Petroleum Refiners, Importers.
Gasoline Marketers and Distributors.
Gasoline Carriers.
American Industry Classification System (NAICS).
Industrial Classification (SIC) system code.
b Standard
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.
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B. What Should I Consider as I Prepare
My Comments for EPA?
1. Submitting CBI. Do not submit this
information to EPA through https://
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.
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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 for California Gasoline
III. Combining Ethanol Blended RFG With
Non-Ethanol Blended RFG
IV. Environmental Effects of This Action
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V. Statutory and Executive Order Reviews
VI. Statutory Provisions and Legal Authority
II. Removal of the RFG Oxygen Content
Requirement for California Gasoline
Section 211(k) of the 1990
Amendments to the 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 amended Section 211(k) of the
CAA to remove the RFG oxygen
requirement.1 The Energy Act specified
that this change was to be immediately
effective in California, and that it would
be effective 270 days after enactment for
the rest of the country. To make the
fuels rules consistent with the current
Section 211(k), today’s rule would
modify the RFG regulations to remove
the oxygen standard in § 80.41 for
gasoline produced and sold for use in
California.2 (Modifications to the RFG
regulations to remove the oxygen
standard for gasoline produced and sold
for use in all areas of the country are
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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being published in a separate
rulemaking.)
Today’s rule also would modify other
provisions of the RFG regulations which
§§ 80.41(e) and (f) ..............
§ 80.41(o) ............................
§ 80.78(a) ............................
§ 80.79 ................................
§ 80.81(d) ............................
§ 80.81(e) ............................
§ 80.81(h) ............................
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The modifications to the affected
sections are listed in the following table:
Would remove the per-gallon and averaged oxygen standards for Phase II Complex Model RFG for gasoline
produced and sold for use in California.3
Would add a provision which specifies that the requirements in § 80.41(o) do not apply to California gasoline.
Would remove the prohibition against producing and marketing California RFG that does not meet the oxygen
minimum standard since the oxygen standard has been removed. Also would remove requirements for California gasoline to meet the oxygen minimum standard during transition from RBOB to RFG in a storage
tank. (Today’s rule also would remove the provision in § 80.78(a)(1) regarding compliance with the maximum oxygen standard in § 80.41 for simple model RFG. See footnote 3.)
Would remove quality assurance requirement to test California gasoline for compliance with the oxygen
standard.
Would remove requirement for oxygenate blenders to exclude California gasoline from compliance calculations since oxygenate blenders are no longer required to demonstrate compliance with a standard.
Would remove § 80.81(e)(2) which required refiners, importers and oxygenate blenders to provide written notification to EPA to produce or import gasoline certified under Title 13 of the California Code of Regulations, sections 2265 or 2266, or to comply with an oxygen content compliance survey option, since these requirements related to ensuring compliance with the Federal RFG oxygen content standard. Also removes
reference to oxygenate blenders in § 80.81(e)(3) regarding withdrawal of California gasoline exemptions for
parties who have violated California or federal RFG regulations.
Would remove provisions for oxygenate blenders to use California test methods for purposes of compliance
testing, since oxygenate blenders are no longer required to conduct testing for compliance with the oxygen
standard.
III. Combining Ethanol Blended
California RFG With Non-Ethanol
Blended California 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 ethanolblended 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
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 §§ 80.41(a)
through (d), and (g). These standards are no longer
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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 nonoxygenated RFG may cause some
gasoline to have VOC emissions which
are higher on average than the gasoline
as produced or imported. Thus, with
regard to gasoline produced and sold for
use in California, 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.4 Under this
new provision, retail outlets are allowed
to sell non-ethanol-blended RFG which
has been combined with ethanolblended 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-VOCcontrolled 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
ten consecutive calendar days. This
proposed rule would implement this
provision of the Energy Act for
California gasoline. A separate rule will
implement this provision for the rest of
the country, with a later effective date
coinciding with the removal of the RFG
oxygen content requirement for such
areas.
This new provision will typically be
used by retail outlets 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,
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.
4 Energy Policy Act of 2005, Pub. L. 109–58
(HR6), section 1513, 119 STAT 594, 1088–1090
(2005).
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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,
today’s regulations would provide two
options for retailers and wholesale
purchaser-consumers. Under the first
option, the retailer may add both
ethanol-blended RFG and non-ethanolblended 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
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 would
apply at a retail level such that each
retailer may take advantage of a
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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 § 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 incorporated today in
§ 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 § 80.77
for all gasoline at the retail outlet.
Under this proposed rule, the
provisions which allow retailers to sell
non-ethanol-blended California RFG
that has been combined with ethanolblended California RFG would also
apply to wholesale purchaserconsumers. 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 purchaserconsumers are 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 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 is necessary
because of the Energy Act amendments,
but is issued pursuant to authority of
CAA Section 211(k). This provision
extends the current program to reflect
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the presence of non-oxygenated RFG,
and is 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 proposed 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 2001.5 New
MSAT standards currently under
development are anticipated to achieve
even greater air toxics emission
reductions.
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.6 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.7
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,8 we believe that ethanol will
continue to be used in RFG in California
after the oxygen requirement is
5 66
FR 17230 (March 29, 2001).
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).
7 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).
8 Energy Policy Act of 2005, Pub. L. 109–58
(HR6), section 1501, 119 STAT 594, 1067–1076,
(2005).
6 See
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removed. 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.
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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
(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 direct
final 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 rule would remove certain
requirements for all refiners, importers
and oxygenate blenders of RFG in
California. As a result, this rule is
expected to greatly reduce overall
compliance costs for all refiners,
importers and oxygenate blenders of
California RFG. This rule also would
provide options for gasoline retailers in
California to commingle certain
compliant gasolines 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
This proposed action would not
impose any new information collection
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burden. Refiners, importers and
oxygenate blenders of California RFG
are exempt from the reporting and
recordkeeping requirements under the
RFG regulations. 40 CFR 80.81.
Therefore, the removal of the oxygen
requirement for California RFG would
not have any ICR implications for
refiners, importers and oxygenate
blenders of California RFG. Small
testing costs may be associated with one
of the options for California gasoline
retailers to commingle compliant
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. The Office of
Management and Budget (OMB) has
previously approved the information
collection requirements contained in the
existing regulations in 40 CFR Part 80
under the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.
and has assigned OMB control number
2060–0277, EPA ICR number 1591.15. A
copy of the OMB approved Information
Collection Request (ICR) may be
obtained from Susan Auby, Collection
Strategies Division; U.S. Environmental
Protection Agency (2822T); 1200
Pennsylvania Ave., NW., Washington,
DC 20460 or by calling (202) 566–1672.
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 Procedures Act or any
other statute unless the agency certifies
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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 rule on small entities, small
entity is defined as: (1) A small business
as defined by the Small Business
Administration’s 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 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
proposed rule on small entities.’’ 5
U.S.C. 603 and 604. Thus, an agency
may conclude 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
California 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. This rule also
would provide options for gasoline
retailers to commingle certain compliant
gasolines which otherwise would be
prohibited from being commingled.
Although one option requires some
compliance testing, the testing costs are
expected to be minimal. As a result, we
have concluded that this proposed rule,
overall, would relieve regulatory burden
for small entities subject to the RFG
regulations. We continue to be
interested in the potential impacts of the
proposed rule on small entities and
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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 costeffective 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.
This 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 will result in
expenditures of $100 million or more.
This rule would affect gasoline refiners,
importers and oxygenate blenders by
removing the oxygen content
requirement for RFG and associated
compliance requirements, and would
allow gasoline retailers options for
commingling compliant gasolines which
otherwise would be prohibited from
being commingled. This rule would
have the overall effect of reducing the
burden of the RFG regulations on these
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14:42 Feb 21, 2006
Jkt 208001
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 burden on regulated parties
of having to comply with the oxygen
standard for RFG in California, and
would allow gasoline retailers to
commingle certain compliant gasolines
which otherwise would be prohibited
from being commingled. 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,
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9069
as specified in Executive Order 13175.
This rule would apply to gasoline
refiners, importers, oxygenate blenders
and retailers who supply RFG in
California. This 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 is not 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 does not have a
significant adverse effect on the supply,
distribution, or use of energy. This rule
would eliminate the oxygen content
requirement for RFG in California. 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
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
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Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Proposed Rules
ethanol, in particular, into gasoline is
expected to increase considerably, not
decrease. Therefore, despite this action
to remove the oxygenate mandate for
RFG in California, 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’’), Pub. L. 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 would 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 direct final rule comes from
sections 211(c), 211(k) and 301(a) of the
CAA.
List of Subjects in 40 CFR Part 80
cprice-sewell on PROD1PC66 with PROPOSALS
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. 06–1614 Filed 2–21–06; 8:45 am]
BILLING CODE 6560–50–P
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15:03 Feb 21, 2006
Jkt 208001
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 NonOxygenated Reformulated Gasoline
Environmental Protection
Agency (EPA).
ACTION: Notice of proposed rulemaking.
AGENCY:
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 VOCcontrolled 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
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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. https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
2. E-mail: Group A-AND-RDOCKET@epa.gov. 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 email address will be automatically
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]]>Agencies
[Federal Register Volume 71, Number 35 (Wednesday, February 22, 2006)]
[Proposed Rules]
[Pages 9064-9070]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1614]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[EPA-HQ-OAR-2005-0170; FRL-8035-3]
Regulation of Fuels and Fuel Additives: Removal of Reformulated
Gasoline Oxygen Content Requirement for California Gasoline and
Revision of Commingling Prohibition To Address Non-Oxygenated
Reformulated Gasoline in California
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
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). The Energy Act specified
that this change was to be immediately effective in California, and
that it would be effective 270 days after enactment for the rest of the
country. This proposed rule would amend the fuels regulations to remove
the oxygen content requirement for RFG for gasoline produced and sold
for use in California, thereby making the fuels regulations consistent
with amended Section 211(k). In addition, for gasoline produced and
sold for use in California, 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.
The removal of the RFG oxygen content requirement and revision of
the commingling prohibition for gasoline produced and sold for use in
all areas of the country is being published in a separate rulemaking
that would have a later effective date than this California specific
rulemaking.
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. https://www.regulations.gov. Follow the on-line instructions for
submitting comments.
2. E-mail: Group A-AND-R-DOCKET@epa.gov. 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
https://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 https://
www.regulations.gov or e-mail. The https://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 https://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
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 homepage at https://www.epa.gov/
epahome/dockets.htm.
We are only taking comment on issues related to the removal of the
oxygen requirement for RFG produced and sold for use in California, and
the provisions regarding the combining of ethanol blended California
RFG with non-oxygenated California RFG and provisions for retailers
regarding the combining of ethanol blended California RFG with non-
ethanol blended California 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 https://
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,
[[Page 9065]]
will be publicly available only in hard copy. Publicly available docket
materials are available either electronically in https://
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: mbennett@epa.gov.
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 SIC codes Examples of potentially
Category \a\ \b\ regulated parties
------------------------------------------------------------------------
Industry............. 324110 2911 Petroleum Refiners,
Importers.
Industry............. 422710 5171 Gasoline Marketers and
Distributors.
422720 5172 .......................
Industry............. 484220 4212 Gasoline Carriers.
484230 4213 .......................
------------------------------------------------------------------------
\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
https://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 for California
Gasoline
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
II. Removal of the RFG Oxygen Content Requirement for California
Gasoline
Section 211(k) of the 1990 Amendments to the 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
amended Section 211(k) of the CAA to remove the RFG oxygen
requirement.\1\ The Energy Act specified that this change was to be
immediately effective in California, and that it would be effective 270
days after enactment for the rest of the country. To make the fuels
rules consistent with the current Section 211(k), today's rule would
modify the RFG regulations to remove the oxygen standard in Sec. 80.41
for gasoline produced and sold for use in California.\2\ (Modifications
to the RFG regulations to remove the oxygen standard for gasoline
produced and sold for use in all areas of the country are
[[Page 9066]]
being published in a separate rulemaking.)
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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.)
---------------------------------------------------------------------------
Today's rule also would modify other provisions of the RFG
regulations which relate to the removal of the oxygen content
requirement for gasoline produced and sold for use in California. The
modifications to the affected sections are listed in the following
table:
---------------------------------------------------------------------------
\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. Sec. 80.41(e) and (f)............. Would remove the per-gallon
and averaged oxygen
standards for Phase II
Complex Model RFG for
gasoline produced and sold
for use in California.\3\
Sec. 80.41(o)........................... Would add a provision which
specifies that the
requirements in Sec.
80.41(o) do not apply to
California gasoline.
Sec. 80.78(a)........................... Would remove the prohibition
against producing and
marketing California RFG
that does not meet the
oxygen minimum standard
since the oxygen standard
has been removed. Also
would remove requirements
for California gasoline to
meet the oxygen minimum
standard during transition
from RBOB to RFG in a
storage tank. (Today's rule
also would 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 California gasoline
for compliance with the
oxygen standard.
Sec. 80.81(d)........................... Would remove requirement for
oxygenate blenders to
exclude California gasoline
from compliance
calculations since
oxygenate blenders are no
longer required to
demonstrate compliance with
a standard.
Sec. 80.81(e)........................... Would remove Sec.
80.81(e)(2) which required
refiners, importers and
oxygenate blenders to
provide written
notification to EPA to
produce or import gasoline
certified under Title 13 of
the California Code of
Regulations, sections 2265
or 2266, or to comply with
an oxygen content
compliance survey option,
since these requirements
related to ensuring
compliance with the Federal
RFG oxygen content
standard. Also removes
reference to oxygenate
blenders in Sec.
80.81(e)(3) regarding
withdrawal of California
gasoline exemptions for
parties who have violated
California or federal RFG
regulations.
Sec. 80.81(h)........................... Would remove provisions for
oxygenate blenders to use
California test methods for
purposes of compliance
testing, since oxygenate
blenders are no longer
required to conduct testing
for compliance with the
oxygen standard.
III. Combining Ethanol Blended California RFG With Non-Ethanol Blended
California 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, with regard to gasoline
produced and sold for use in California, 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.\4\
Under this new provision, retail outlets are allowed 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 ten consecutive calendar days. This proposed
rule would implement this provision of the Energy Act for California
gasoline. A separate rule will implement this provision for the rest of
the country, with a later effective date coinciding with the removal of
the RFG oxygen content requirement for such areas.
---------------------------------------------------------------------------
\4\ Energy Policy Act of 2005, Pub. L. 109-58 (HR6), section
1513, 119 STAT 594, 1088-1090 (2005).
---------------------------------------------------------------------------
This new provision will typically be used by retail outlets 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,
[[Page 9067]]
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, today's regulations
would provide two options 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
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 would 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 incorporated today in 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 this proposed rule, the provisions which allow retailers to
sell non-ethanol-blended California RFG that has been combined with
ethanol-blended California 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 are 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 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 is necessary because of the
Energy Act amendments, but is issued pursuant to authority of CAA
Section 211(k). This provision extends the current program to reflect
the presence of non-oxygenated RFG, and is 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 proposed 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.\5\ New MSAT standards currently under
development are anticipated to achieve even greater air toxics emission
reductions.
---------------------------------------------------------------------------
\5\ 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.\6\ 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.\7\ 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,\8\ we believe that ethanol will continue to be
used in RFG in California after the oxygen requirement is
[[Page 9068]]
removed. 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.
---------------------------------------------------------------------------
\6\ 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).
\7\ 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).
\8\ 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
(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 direct final 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 rule would
remove certain requirements for all refiners, importers and oxygenate
blenders of RFG in California. As a result, this rule is expected to
greatly reduce overall compliance costs for all refiners, importers and
oxygenate blenders of California RFG. This rule also would provide
options for gasoline retailers in California to commingle certain
compliant gasolines 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
This proposed action would not impose any new information
collection burden. Refiners, importers and oxygenate blenders of
California RFG are exempt from the reporting and recordkeeping
requirements under the RFG regulations. 40 CFR 80.81. Therefore, the
removal of the oxygen requirement for California RFG would not have any
ICR implications for refiners, importers and oxygenate blenders of
California RFG. Small testing costs may be associated with one of the
options for California gasoline retailers to commingle compliant
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. The Office of Management and Budget
(OMB) has previously approved the information collection requirements
contained in the existing regulations in 40 CFR Part 80 under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2060-0277, EPA ICR number 1591.15. A
copy of the OMB approved Information Collection Request (ICR) may be
obtained from Susan Auby, Collection Strategies Division; U.S.
Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW.,
Washington, DC 20460 or by calling (202) 566-1672.
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
Procedures 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 rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's 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 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 proposed rule on small entities.'' 5 U.S.C. 603
and 604. Thus, an agency may conclude 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 California 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. This rule also would provide
options for gasoline retailers to commingle certain compliant gasolines
which otherwise would be prohibited from being commingled. Although one
option requires some compliance testing, the testing costs are expected
to be minimal. As a result, we have concluded that this proposed rule,
overall, would relieve regulatory burden for small entities subject to
the RFG regulations. We continue to be interested in the potential
impacts of the proposed rule on small entities and
[[Page 9069]]
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.
This 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 will result in
expenditures of $100 million or more. This rule would affect gasoline
refiners, importers and oxygenate blenders by removing the oxygen
content requirement for RFG and associated compliance requirements, and
would allow gasoline retailers options for commingling compliant
gasolines which otherwise would be prohibited from being commingled.
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
burden on regulated parties of having to comply with the oxygen
standard for RFG in California, and would allow gasoline retailers to
commingle certain compliant gasolines which otherwise would be
prohibited from being commingled. 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, importers, oxygenate
blenders and retailers who supply RFG in California. This 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 is not 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 does not have a
significant adverse effect on the supply, distribution, or use of
energy. This rule would eliminate the oxygen content requirement for
RFG in California. 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 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
[[Page 9070]]
ethanol, in particular, into gasoline is expected to increase
considerably, not decrease. Therefore, despite this action to remove
the oxygenate mandate for RFG in California, 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''), Pub. L. 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 would 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 direct final
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. 06-1614 Filed 2-21-06; 8:45 am]
BILLING CODE 6560-50-P
