Boutique Fuels List under Section 1541(b) of the Energy Policy Act, 78192-78199 [E6-22313]
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78192
Federal Register / Vol. 71, No. 249 / Thursday, December 28, 2006 / Notices
aggregate, to be less protective of public
health and welfare than applicable
Federal standards.
CARB also demonstrated continuing
existence of compelling and
extraordinary conditions, justifying the
state’s need for its own motor vehicle
pollution control program. Because EPA
has not received adverse public
comment challenging the need for
CARB’s own motor vehicle pollution
control program, I cannot deny the
waiver based on a lack of a compelling
and extraordinary conditions.
CARB stated in its request letters that
the amendments do not raise any
concerns of inadequate leadtime or
impose any inconsistent certification
requirements. EPA received information
during this proceeding that questioned:
whether the advance-technology partialzero-emission vehicles (ATPZEVs)
provisions of the ZEV requirements
were of a type not consistent with
§ 202(a), and whether the partial-zeroemission vehicle (PZEV) and fuel-cell
vehicle (FCV) provisions of the ZEV
requirements were not consistent with
§ 202(a) due to considerations of
technological feasibility, lead time, and
cost. EPA finds that the party opposing
the within-the-scope confirmation and
the waiver of federal preemption has not
met its burden of proof that the ZEV
amendments are inconsistent with
§ 202(a). I cannot find that CARB’s ZEV
regulations, as noted, would cause the
California motor vehicle emission
standards to be inconsistent with
§ 202(a).
As explained further in the Decision
Document, EPA also received comment
that CARB’s ZEV regulations raise ‘‘new
issues’’ which require EPA to consider
CARB’s within-the-scope request under
the criteria for a full waiver of federal
preemption. EPA finds that the party
opposing the within-the-scope
confirmation has not met its burden of
proof that the ZEV amendments raise
new issues and therefore I cannot find
that the within-the-scope confirmation
should be denied on this basis.
Therefore I confirm that CARB’s ZEV
amendments as they affect the 2006 and
earlier MYs, as noted above, are withinthe-scope of existing waivers of federal
preemption. I also find that the ZEV
amendments as they affect the 2006 and
earlier MYs meet the criteria for a full
waiver and thus I alternatively grant a
waiver of federal preemption for these
MYs. I also grant a waiver of federal
preemption of CARB’s ZEV
amendments as they affect the 2007
through 2011 MYs. As explained further
in the Decision Document, EPA is not
making any determinations regarding a
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20:03 Dec 27, 2006
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waiver of federal preemption applicable
to 2012 and later MYs.
CARB did not seek a within-the-scope
confirmation of the 2007 MY as part of
its initial request to EPA. However,
CARB later requested EPA to consider
the 2007 MY provisions (with the
exception of the LDT2 requirement) as
within-the-scope. While EPA did
request comment regarding CARB’s
within-the-scope request for the 2003–
2006 MYs, EPA has not done so for the
2007 MY. As explained in the Decision
Document, EPA does not believe that a
further official request for comment is
needed at this time. Because the 2007
MY provisions are very similar to the
2005–2006 MY provisions, I confirm
that the 2007 MY requirements (with
the exception of the LDT2 requirement)
are within-the-scope of previous
waivers of federal preemption.
However, any party that wishes to object
to this determination may file such
objection as indicated in the DATES and
ADDRESSES section above. Upon receipt
of a timely objection, EPA will consider
scheduling a public hearing to
reconsider these findings in a
subsequent Federal Register Notice.
A full explanation of EPA’s decision,
including our review of comments
received in opposition to CARB’s
request, is contained in a Decision
Document which may be obtained as
explained above.
My decision will affect not only
persons in California but also the
manufacturers outside the State who
must comply with California’s
requirements in order to produce
nonroad engines and vehicles for sale in
California. For this reason, I hereby
determine and find that this is a final
action of national applicability.
As with past waiver decisions, this
action is not a rule as defined by
Executive Order 12866. Therefore, it is
exempt from review by the Office of
Management and Budget as required for
rules and regulations by Executive
Order 12866.
In addition, this action is not a rule
as defined in the Regulatory Flexibility
Act, 5 U.S.C. 601(2). Therefore, EPA has
not prepared a supporting regulatory
flexibility analysis addressing the
impact of this action on small business
entities.
Finally, the Administrator has
delegated the authority to make
determinations regarding waivers under
section 209(b) of the Act to the Assistant
Administrator for Air and Radiation.
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Dated: December 21, 2006.
William L. Wehrum,
Acting Assistant Administrator for Air and
Radiation.
[FR Doc. E6–22314 Filed 12–27–06; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OAR–2006–0340; FRL–8262–6]
Boutique Fuels List under Section
1541(b) of the Energy Policy Act
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
SUMMARY: The Energy Policy Act of 2005
(EPAct) includes a number of provisions
addressing state boutique fuel programs.
Section 1541(b) of this Act requires
EPA, in consultation with the
Department of Energy, to determine the
total number of fuels approved into all
state implementation plans (SIPs) as of
September 1, 2004, under section
211(c)(4)(C) of the Clean Air Act (CAA).
The EPAct also requires us to publish a
list of such fuels, including the states
and Petroleum Administration for
Defense District (PADD) in which they
are used, for public review and
comment. On June 6, 2006, we
published a draft list based upon a ‘‘fuel
type approach’’ along with an
explanation of our rationale in
developing it. We also published an
alternative list based upon a ‘‘state
specific approach.’’ In this notice we are
finalizing the list of total number of
fuels approved into all SIPs as of
September 1, 2004, based upon the fuel
type approach. This notice also
addresses comments that we received
on the proposed draft notice and list.
FOR FURTHER INFORMATION CONTACT:
Anne Pastorkovich, Environmental
Protection Agency, MC 6406J, 1200
Pennsylvania Ave., NW, Washington,
DC 20460; telephone number: 202–343–
9623; fax number: 202–343–2801; email
address: pastorkovich.annemarie@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Under the Clean Air Act (CAA), state
fuel programs respecting a fuel
characteristic or component that we
have regulated under section 211(c) (1)
are preempted.1 EPA may waive
preemption through approval of the fuel
program into a State Implementation
Plan (SIP). Approval into the SIP
1 See CAA section 211(c)(4)(A), 42 U.S.C.
7545(c)(4)(A).
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requires a demonstration that the state
fuel program is necessary to achieve the
National Ambient Air Quality Standards
(NAAQS) that the plan implements.2
‘‘Necessary’’ means that no other
measures exist that would bring about
timely attainment or that other measures
exist and are technically possible to
implement, but are unreasonable or
impracticable.3 These state fuels
programs, which are often referred to as
‘‘boutique’’ fuel programs because they
differ from the federal fuel required in
the area, have been adopted by the state
to address a specific local air quality
issue. One issue presented by boutique
fuels is that when events (such as
hurricanes or pipeline and refinery
breakdowns) lead to fuel supply
shortages, varying fuel standards can
complicate the process of quickly
solving the supply interruption.
The Energy Policy Act of 2005
(EPAct) amends the CAA by placing
additional restrictions on our authority
to waive preemption by approving a
state fuel into the SIP. These restrictions
are:
• We cannot approve a state fuel if it
would cause the total number of fuels
approved into SIPs to increase above the
number approved as of September 1,
2004.
• In cases where our approval would
not increase the total number of such
fuels, because the total number of fuels
in SIPs at that point is below the
number of fuels as of September 1, 2004,
then our approval requires a finding,
after consultation with the Department
of Energy (DOE), that the new fuel will
not cause supply or distribution
interruptions or have a significant
adverse impact on fuel producibility in
the affected or contiguous areas.4
• We cannot approve a state fuel into
a SIP unless the fuel is already in an
existing SIP within that PADD, with the
exception of a 7.0 psi RVP fuel.5 EPA’s
approval of a 7.0 psi RVP fuel would,
however, be subject to the other EPAct
restrictions.
As these restrictions make clear, how
we determine the total number of fuels
on the list may greatly affect states’
2 NAAQS are standards for ambient levels of
certain air pollutants (e.g. ground-level ozone) and
are designed to protect public health and welfare.
3 See CAA section 211(c)(4)(C)(i), 42 U.S.C.
7545(c)(4)(C)(i).
4 See CAA section 211(v)(4)(C)(v)(IV), 42 U.S.C.
7545(c)(4)(C)(v)(IV).
5 See CAA section 211(c)(4)(C)(v)(V), 42 U.S.C.
7545(c)(4)(C)(v)(V). For a pictorial depiction of the
PADD map, please refer to ‘‘Petroleum
Administration for Defense Districts’’ at https://
www.eia.doe.gov/pub/oil_gas/petroleum/
analysis_publications/oil_market_basics/
paddmap.htm.
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ability to have future boutique fuels
programs approved into SIPs.
Section 1541(b) of the EPAct also
requires us, in consultation with the
Department of Energy (DOE), to
determine the total number of fuels
approved into all state implementation
plans (SIPs) as of September 1, 2004,
under section 211(c)(4)(C), and publish
a list of such fuels, including the state
and PADD in which they are used for
public review and comment. On June 6,
2006, we published a draft list of state
fuels approved into SIPs under section
211(c)(4)(C) as of September 1, 2004 for
public review and comment.6 The
notice included our draft interpretation
of the various EPAct boutique fuels
provisions described above. As we
discussed in the notice, the EPAct is
ambiguous as to the meaning of ‘‘total
number of fuels.’’ We provided two
proposed interpretations for developing
the list. The first proposed approach
was the ‘‘fuel type approach.’’ As
explained in the notice, this approach
would treat each type or kind of fuel as
a separate fuel, without respect to the
number of different state
implementation plans that include this
fuel type. For example, all state fuels
with a Reid Vapor Pressure of 7.8
pounds per square inch (psi) would be
considered as one fuel in determining
the total number of fuels approved as of
September 1, 2004.7 While several states
had a 7.8 psi RVP program on that date,
they would not be treated as different
fuels in determining the ‘‘total number
of fuels,’’ but as different states using a
single fuel type. This approach resulted
in a draft list with seven different fuel
types. 71 FR 32533.
We also provided an alternative
interpretation, called the ‘‘state specific
approach.’’ Under this approach, each
individual state using a type or kind of
fuel in a SIP would be considered a
separate fuel. For example, each state
having a 7.8 psi RVP fuel in its SIP
could be treated as having a separate
fuel for purposes of determining the
‘‘total number of fuels.’’ The state
specific interpretation would lead to as
many fuels as there are state fuel
programs in the various PADDs and, as
proposed, would have resulted in 15
different fuels.8 71 FR 32533–34.
6 See ‘‘Draft Boutique Fuels List Under Section
1541(b) of the Energy Policy Act and Request for
Public Comment—Notice.’’ 71 FR 32532, 32533
(June 6, 2006).
7 Reid Vapor Pressure is the common measure of
fuel volatility. Volatility is the tendency of fuel to
evaporate.
8 For a more detailed description of the ‘‘fuel type
approach’’ and the ‘‘state specific approach,’’ see 71
FR 32532, 32533–34. Also see the tables
corresponding to these approaches on pages 32535–
36 of that notice.
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78193
A. Our Final Interpretation of the EPAct
Boutique Fuel Provisions
In today’s notice, we are adopting the
fuel type interpretation. We are
determining the total number of state
fuels approved into SIPs under section
211(c)(4)(C) as of September 1, 2004
based on the fuel type interpretation.
We will use both the fuel type
interpretation and the final list of fuels
in implementing the three EPAct criteria
for future decisions on approval of a
state fuel into a SIP. Specifically, these
criteria present the following
restrictions on our ability to approve
future state fuels into SIPs:
• We cannot approve a state fuel into
a SIP under section 211(c)(4)(C) if it
would cause the total number of fuel
types on the list to increase above the
number approved on September 1,
2004.9 Under the fuel type
interpretation, our approval of a state
7.8 psi RVP program, for example,
would not cause an increase in the
number of fuel types on the list because
that type of RVP program is already on
the list.
• In cases where our approval of a
fuel would increase the total number of
fuels types on the list but not above the
number approved as of September 1,
2004, because the total number of fuel
types in SIPs is below the number of
fuels types as of September 1, 2004, we
are required to make a finding after
consultation with the DOE that the fuel
does not cause supply or distribution
interruptions or have a significant
adverse impact on fuel producibility in
the affected or contiguous areas. Under
the fuel type interpretation, where there
is ‘‘room’’ on the list, we may approve
a state fuel program, after consultation
with the DOE, and a finding that the
state fuel will not cause either supply or
distribution interruptions or have a
significant adverse impact on fuel
producibility in either the affected or
contiguous areas.
• We cannot approve a state fuel into
a SIP unless that fuel type is already in
a SIP in the applicable PADD, with the
exception of the 7.0 psi RVP fuel type.10
Under the fuel type interpretation that
we are adopting today, the PADD
restriction would not extend to our
approval of a 7.0 psi RVP fuel, although
our approval of a 7.0 psi RVP fuel
would remain subject to the other EPAct
restrictions, discussed above. See also
Section I.C. below for a further
discussion of our interpretation and
9 See CAA section 211(c)(4)(C)(v)(I), 42 U.S.C.
7545(c)(4)(C)(v)(I).
10 See CAA section 211(c)(4)(C)(v)(V), 42 U.S.C.
7545(c)(4)(C)(v)(V).
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implementation of the PADD restriction
provision in PADD 5.
B. List of Fuel Types
We have also modified the draft list
in response to comments that we
received on the proposed notice, and it
now contains a total of 8 different fuel
types. See Section III, below, for the
final List of State Fuels approved under
section 211(c)(4)(C) as of September 1,
2004.
(i) 9.0 psi RVP Fuel Type
In proposing the draft list of boutique
fuels, we recognized that there were a
few states that had 9.0 psi RVP fuel
programs approved into their SIPs as of
September 1, 2004. We explained,
however, that we do not believe that we
should include a 9.0 psi RVP fuel type
on the boutique fuels list required by
EPAct. We explained that we were
obligated to publish a list based on the
total number of fuels approved into SIPs
under section 211(c)(4)(C) as of
September 1, 2004, and also required to
remove a fuel that is ‘‘identical to a
Federal fuel formulation implemented
by the Administrator,’’ from the list.11
Because the current federal RVP
requirement in all of these northeastern
states is 9.0 psi RVP, and was as of
September 1, 2004, reading the EPAct
provisions literally would require EPA
to include a 9.0 psi RVP fuel type on the
list but to remove it from the list at the
same time. We proposed to exclude the
9.0 psi RVP fuel type from the list in
order to avoid this illogical outcome. As
we further explained in the notice, we
do not believe that the 9.0 psi RVP fuel
type would be viewed as contributing to
the proliferation of ‘‘fuel islands’’ that
Congress was concerned about.12 We
continue to believe that the appropriate
way to reconcile these apparently
conflicting provisions is to exclude the
9.0 psi RVP fuel type from the list. We
do not believe that adoption of the fuel
type interpretation affects our decision
not to list the 9.0 psi RVP fuel type.
We received two comments
concerning our treatment of the 9.0 psi
RVP fuel type. Our response to these
comments can be found in ‘‘Section II.
Comment Summary and Response,’’
below.
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(ii) Arizona Clean Burning Gasoline
(CBG)
Under our proposed fuel type
interpretation, we listed the total
number of fuels based on the kind or
type of fuel approved into a SIP as of
11 See CAA section 211(c)(4)(C)(v)(III), 42 U.S.C.
7545(c)(4)(C)(v)(III).
12 See 71 FR 32532, 32534.
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September 1, 2004. 71 FR 32533. We
also determined the fuel type or kind
based on the required specific fuel
components, specifications, or limits of
each fuel type (for example, 7.8 psi RVP,
7.2 psi RVP or 7.0 psi RVP). At proposal
therefore, we listed 7.0 psi RVP as a fuel
type with Arizona as one of the 5 states
that uses this fuel type. We also listed
Arizona Clean Burning Gasoline (CBG)
as a separate fuel type. We received two
comments on our proposal. Both
commenters recommended that we list
Arizona CBG as two types of fuels,
namely summertime and wintertime
CBG. Both commenters said that
specifications for CBG were different in
winter, which was described as the
period beginning November 2–March
31, and summer, which was described
as the remaining portions of the
calendar year. Also one commenter
stated that both summer and winter
CBG have different specifications for
RVP, sulfur, aromatics, olefins, E200
and E300.
In today’s notice, we are listing
Arizona CBG as two fuel types—
summer CBG and non-summer CBG.
(See section III below for our final list
of the fuel types). We agree with the
commenters that Arizona’s CBG
program has several components,
specifications or limits for summer CBG,
such as the 7.0 psi RVP requirement,
that are different from non-summer
CBG. We also believe summer CBG
requirements, which have been adopted
by Arizona to address ozone
nonattainment, include the 7.0 psi RVP
requirement. We are therefore listing
summer CBG as one fuel type, because
it has specifications that are different
from non-summer CBG. We have
removed Arizona from the list as one of
the states that uses the 7.0 psi fuel type.
We believe that our decision to list CBG
as two fuel types is similar to our listing
of the Atlanta 7.0 psi RVP with sulfur
provisions as a separate fuel type. At
proposal we also specified the control
period for Arizona’s 7.0 psi RVP
program as June 1-September 30. In
today’s notice, we are specifying May 1–
September 30 as the time period for the
CBG summer control period, in order to
correspond with the start date of
Arizona’s summer CBG control period
(May 1) and the end date of Arizona’s
7.0 psi RVP control period (September
30).
One consequence of our decision to
list Arizona CBG as two fuel types is
that states in PADD 5 seeking to adopt
state fuel programs would now have a
wider choice of fuel types for purposes
of addressing local air quality problems.
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(iii) RVP Fuel Types that Do Not
Provide a 1.0 psi Waiver for EthanolBlended Gasoline
In our draft list published June 6,
2006, we did not list any of the RVP
programs that do not provide a 1.0 psi
waiver for ethanol-blended gasoline as
separate fuel types. More specifically,
we proposed listing the 7.8 psi RVP
program for western Pennsylvania, and
the 7.0 psi RVP program for El Paso,
Texas as part of the 7.8 psi and 7.0 psi
fuel types respectively. Both programs
explicitly do not provide a 1.0 psi
waiver for ethanol blends, and we have
approved this requirement into the
respective SIPs.13 We received two
comments supporting our proposed
decision not to list these fuel programs
as separate fuel types, and one comment
inquiring as to why EPA made no
mention of RVP waivers for 10%
ethanol-gasoline blends. Our response
to these comments can be found in
‘‘Section II. Comment Summary and
Response,’’ below.
Listing fuel programs as separate fuel
types depending on whether they allow
or do not allow a 1.0 psi waiver for
ethanol-blended gasoline would have
several consequences. First, states in the
same PADD as either Pennsylvania and
Maine (PADD 1), or Texas (PADD 3),
that want to adopt 7.8 psi RVP
programs, would not be able to adopt a
7.8 psi RVP program in their SIP that
allows a 1.0 psi waiver for ethanolblended gasoline, because there is no
7.8 psi RVP program approved in any
SIP in either PADD 1 or 3 that allows
a 1.0 psi waiver for ethanol blends.
Conversely, states in PADD 2 that want
to adopt a 7.8 psi RVP program would
only be able to adopt a 7.8 psi RVP
program that allows a 1.0 psi waiver for
ethanol-blended gasoline, because there
is no RVP program approved in a SIP in
PADD 2 that does not allow a 1.0 psi
waiver for ethanol blends.
Another consequence of listing
separate fuel types for areas that do not
allow a 1.0 psi ethanol waiver is that we
would have to decide how to treat the
7.0 psi RVP fuel type under EPAct. The
EPAct treats the 7.0 psi RVP fuel type
differently from other fuel types by
allowing EPA to approve a state 7.0 psi
RVP fuel even if no other states in the
same PADD already have a 7.0 psi RVP
fuel approved in their SIP (see Section
I.C. below). The EPAct does not specify
whether future approvals of 7.0 psi RVP
SIP fuels should be allowed with a 1.0
13 Most SIPs explicitly allow the 1.0 psi waiver
for ethanol-blended gasoline. However, some SIPs
are silent regarding the 1.0 psi waiver for ethanolblended gasoline, and our understanding is that
these SIPs do not allow for such a waiver.
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psi ethanol waiver, without a 1.0 psi
ethanol waiver, or whether states should
be able to choose whether or not they
want to allow a 1.0 psi ethanol waiver.14
We are not listing RVP programs as
separate fuel types according to whether
or not they allow the 1.0 psi ethanol
waiver. We believe that listing SIP fuels
in this manner would reduce fuel
fungibility and reduce states’ flexibility,
which are contrary to Congressional
intent. As explained above, one
consequence of such a listing is that a
state in PADD 1 that wants to adopt a
7.8 psi RVP program into their SIP
could not allow the 1.0 psi ethanol
waiver because there is no RVP program
in a SIP in PADD 1 that allows a 1.0 psi
waiver for ethanol-blended gasoline. We
believe that if a state in PADD 1 adopts
a 7.8 psi fuel program that does not
allow a 1.0 psi waiver for ethanolblended gasoline, refiners would be
required to either not blend ethanol into
gasoline in the area covered by the new
SIP, or supply a special sub-RVP
blendstock which, when blended with
ethanol, would meet the 7.8 psi RVP
standard. If refiners choose to supply a
special blendstock, which meets the 7.8
psi RVP standard when blended with
ethanol, the blendstock would have to
be produced and transported separately
from all other fuels. We believe this
would run counter to EPAct’s intention
of promoting fuel fungibility.
Additionally, because the exception
allowed for 7.0 psi RVP fuel programs
makes no mention as to whether new
7.0 psi RVP fuel programs should be
permitted with or without the 1.0 psi
ethanol waiver, we believe that
Congress was primarily concerned with
classifying fuel types according to RVP
limits, instead of whether or not they
allowed the 1.0 psi ethanol waiver. We
therefore, believe that listing fuel types
solely according to RVP limits is most
consistent with Congress’s intent to
improve fuel fungibility.
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C. Removal of Fuel Types from the List
We are required to remove a fuel from
the published list of fuels if the fuel is
either identical to a federal fuel or is
removed from the SIP into which it is
approved.15 At proposal we explained
14 It is important to note that this discussion of
approval of state fuel programs with or without a
1.0 psi waiver for ethanol blends has no impact on
EPA’s federal RVP program. In the federal RVP
program there is a 1.0 psi waiver for ethanol blends,
subject to the provisions for exclusion of the 1.0 psi
waiver adopted in EPAct. Section 211(h)(4), (5).
EPA’s interpretation of the section 211(c)(4)(C)
boutique fuels provisions above has no impact on
the federal RVP program adopted under the
provisions of section 211(h).
15 See CAA section 211(c)(4)(C)(v)(III), 42 U.S.C.
7545(c)(4)(C)(v)(III).
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that under the fuel type interpretation,
a fuel type would be removed from the
list only if that fuel type was either
identical to a federal fuel or removed
from all SIPs with that type of fuel
program. 71 FR 32534. We also
proposed how we would implement the
provision relating to removal of a fuel
from the published list.16 71 FR 32535.
We received two comments on our
proposed implementation of this
provision to remove a fuel from the
published list. Our response to these
comments can be found in ‘‘Section II.
Comment Summary and Response,’’
below.
In today’s notice we are adopting the
fuel type interpretation, and as
proposed we will be removing a fuel
from the list if it is either identical to
a federal fuel or if it is removed from all
SIPs into which it is approved. Our
removal of a fuel type that either ceases
to exist in any SIP or that is identical
to a federal fuel formulation may create
‘‘room’’ on the list, and subsequently,
subject to the three restrictions
discussed above, we can approve a
‘‘new fuel’’ type into a SIP.
D. Approval of a ‘‘New Fuel’’
The EPAct provides that before
approving a ‘‘new fuel’’ into a SIP,
where there is room on the list for
additional fuels, we must make a
finding, after consultation with the
DOE, on the impact of the ‘‘new fuel’’
on fuel supply, distribution, and
producibility. We also addressed the
EPAct use of the term ‘‘new fuel’’, under
the fuel type interpretation.17 We
explained that the term ‘‘new fuel’’ may
be somewhat problematic under the fuel
type interpretation. A new fuel type
would be a fuel type that is not already
on the list, however, the PADD
restriction would preclude the approval
of a new fuel type if that fuel type is not
already approved into a SIP in the
applicable PADD.18 At proposal, we
explained that because there is an
exception to the PADD restriction for a
7.0 psi RVP program, we could under
limited circumstances give meaning to
the term ‘‘new fuel’’ under the proposed
fuel type interpretation.19 We received
one comment on our proposed
implementation of this provision for the
addition of a ‘‘new fuel’’ to the
16 See
71 FR 32532, 32534.
CAA section 211(c)(4)(C)(v)(IV), 42 U.S.C.
7545(c)(4)(C)(v)(IV).
18 See CAA section 211(c)(4)(C)(v)(IV), 42 U.S.C.
7545(c)(4)(C)(v)(V) and 71 FR 32532, 32534.
19 Congress exempted 7.0 psi RVP programs from
the PADD restriction. While the other EPAct
provisions on boutique fuels do apply to 7.0 psi
RVP programs, the specific limitation on PADD
usage in section 211(c)(4)(C)(v)(V) does not apply.
Also see 71 FR 32532, 32534.
17 See
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published list. Our response to this
comment can be found in ‘‘Section II.
Comment Summary and Response,’’
below.
In today’s notice, we are adopting the
fuel type interpretation, and as
proposed, we will give meaning to the
term ‘‘new fuel’’ under the limited
circumstances where a state seeks to
adopt a 7.0 psi RVP program. At such
a time, we also expect to make a finding
on the impact of the ‘‘new fuel’’ on fuel
supply, distribution, and producibility,
after consultation with the DOE.
We also believe that we could give
meaning to the term ‘‘new fuel’’ where
states within PADD 5 seek our approval
to adopt a fuel program that has been
approved into California’s SIP. See our
discussion of the PADD restriction,
California Air Resources Board (CARB)
fuels, and states in PADD 5 in Section
I.D. below. We believe that under this
additional limited circumstance, where
states in PADD 5 are seeking to adopt
CARB fuels approved into California’s
SIP, and there is room on the list for a
new fuel type, we could give meaning
to the term ‘‘new fuel’’ to include a
CARB fuel program, under the fuel type
interpretation that we are adopting
today. At such a time, we will also make
a finding on the impact of the ‘‘new
fuel’’ on fuel supply, distribution, and
producibility, after consultation with
the DOE.
E. The PADD Restriction
The EPAct constrains our approval of
‘‘any fuel unless that fuel’’ was already
approved into at least one SIP in the
applicable PADD as of the date of our
consideration of a state’s request.20 At
proposal we explained that for a state
fuel program to be approved into a SIP
in the future, the effect of the PADD
restriction is that the fuel type must
have been approved into a SIP in that
PADD as of the date of our
consideration of a state’s request (with
the exception of 7.0 psi RVP
programs).21 We explained in the notice
that the PADD restriction places a strong
constraint on our future approval of
‘‘boutique fuels’’ because it effectively
limits state fuels to both the types of
fuels currently in existence, and to the
PADDs in which they are currently
found.22 We also received several
comments on our treatment of CARB
fuels. Our response to these comments
can be found below in section II.B.
In today’s notice we are adopting the
fuel type interpretation and finalizing a
20 See CAA section 211(c)(4)(C)(v)(V), 42 U.S.C.
7545(c)(4)(C)(v)(V).
21 See 71 FR 32532, 32534.
22 See 71 FR 32532, 32534–32535.
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list of fuel types under this
interpretation. Moreover, as proposed,
we can approve a state fuel program if
the fuel type (except for 7.0 psi RVP
programs) has been approved into a SIP
in the applicable PADD as of the date of
our consideration of a state’s request.
Additionally, because we are allowed to
approve a fuel if it is ‘‘approved in at
least one [SIP] in the applicable
[PADD],’’ we believe that there is a
limited circumstance in PADD 5 where
we could approve a fuel type that is in
a SIP in that PADD although such a fuel
type is not on the list that we have
published today.23 Our approval would
however, be subject to the three
restrictions we have listed and
discussed earlier. If our approval will
not cause an increase in the number of
fuel types above those approved as of
September 1, 2004, i.e., if there is ‘‘room
on the list,’’ we could approve for states
within PADD 5 a fuel program that is in
California’s SIP, without violating the
PADD restriction. CARB fuels are
approved into California’s SIP, but
because the approval is not under CAA
section 211(c)(4)(C) we have not placed
CARB fuels on the list of fuels we are
publishing today. Under the PADD
restriction provision, however, we are
only required to approve a fuel if it is
‘‘approved in at least one [SIP] in the
applicable [PADD].’’ We would,
therefore, not be prohibited from
approving CARB fuels for states within
PADD 5, because CARB fuels are
approved into a SIP in the applicable
PADD. As earlier explained, adoption
and approval of CARB fuels, however,
remains subject to our meeting the three
restrictions we have listed and
discussed, above.
We continue to believe that under the
fuel type interpretation, states would
generally adopt fuels programs but only
in those limited cases where that fuel
type is already found in their PADD. We
also continue to believe that this
interpretation addresses the ‘‘fuel
islands’’ concerns, while continuing to
preserve an important degree of
flexibility and choice of states in
developing air pollution control
programs.
sroberts on PROD1PC70 with NOTICES
II. Comment Summary and Response
We received thirteen sets of
comments on the boutique fuels notice.
These comments were submitted to the
public docket. Our responses to
comments are as follows:
23 CAA section 211(c)(4)(C)(v)(V), 42 U.S.C.
7545(c)(4)(C)(v)(V)
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A. Comments on the Fuel Type
Approach versus the State Specific
Approach.
Comment: The Fuel Type Approach is
Preferred. All commenters supported
the fuel type approach except one who
expressed no opinion. No commenter
supported a state-specific approach.
Response: We agree that the fuel type
approach is preferable for several
reasons. The fuel type approach will
implement the intent of the EPAct,
while preserving some choice for states
in meeting the NAAQS.
B. Comments Regarding State Fuel
Programs Not Included on the Draft
State Boutique Fuels List
Comment: Arizona Clean Burning
Gasoline (CBG) should be listed as two
separate fuel types. Two commenters
suggested that we list Arizona CBG as
two fuel types on the list—summer CBG
and winter CBG. According to one
commenter, this is because the Arizona
CBG has specifications for RVP, sulfur,
aromatics, olefins, E200 and E300
during summer that are different from
the specifications for winter. The
commenter also stated that the summer
specifications address the ozone
NAAQS, while the winter specifications
address the CO NAAQS, and that the
differing fuel specifications results in
‘‘unique supply and distribution
issues.’’ Another commenter stated that
we had failed to ‘‘adequately
characterize Arizona CBG which is
actually two different fuels depending
on the time of year involved.’’
Response: We agree that Arizona CBG
should be listed as two separate fuel
types. Arizona requires winter CBG to
meet a set of specific standards for RVP,
sulfur, aromatics, olefins, T50, T90 and
oxygen. Arizona, however, allows
summer CBG to either meet the same set
of specific standards (for sulfur,
aromatics, olefins, T50, T90 and
oxygen), or alternatively meet
performance standards for emissions
reductions in VOC and NOX. As
explained in Section 1.A, above,
summer CBG includes specification for
7.0 psi RVP. Thus, because CBG has
components, specifications or limits for
summertime that are different from nonsummertime specifications, we are
listing CBG as two fuel types. In today’s
notice, therefore, we are listing
summertime CBG, which includes the
7.0 psi RVP requirement and nonsummertime CBG. (See Section III,
below, for our list of the fuels approved
into all SIPs as of September 1, 2004).
We have also changed the dates in the
table to reflect compliance dates for
these two fuel types. We believe that the
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practical effect of adding a second fuel
type for Arizona CBG is small, although
we note that for states in PADD 5 this
changes one fuel type (CBG) into two
fuel types (summer and non-summer
CBG) for consideration of approval to
their SIPs for purposes of addressing
local air quality issues.
Comment: State RVP programs that do
not provide a 1.0 psi RVP waiver for
ethanol-blended gasoline should be
listed as separate programs. Two state
fuels programs (western Pennsylvania
and El Paso, Texas) do not provide a 1.0
psi RVP waiver for ethanol-blended
gasoline in their RVP fuel programs.
Two commenters stated that these fuel
programs should not be listed as
separate fuel types. Also, one
commenter stated that EPA made no
mention of RVP waivers for 10%
ethanol-gasoline blends and the impact
these may have on the list of fuel types.
Response: As explained above, we are
not listing the 7.8 psi RVP western
Pennsylvania program and 7.0 psi RVP
El Paso, Texas programs that do not
allow the 1.0 psi waiver for ethanol
blended gasoline as two separate fuel
types. As also explained in the
preamble, we believe that listing fuel
types according to whether they do or
do not allow a 1.0 psi ethanol waiver
would run contrary to Congress’s
intention to improve fuel fungibility
through the boutique fuel list. As further
explained in the preamble, because the
PADD restriction exception allowed for
7.0 psi RVP fuel programs makes no
mention as to whether new 7.0 psi RVP
fuel programs should be permitted with
or without the 1.0 psi ethanol waiver,
we do not believe that Congress
intended use of this criteria for listing
fuel types.
Comment: ‘‘Historical’’ 9.0 psi RVP
programs should be on the list. In 1989
we set nationwide RVP standards for
gasoline sold during the summer, in two
phases. Phase I applied to 1990 and
1991, and Phase II applied to 1992 and
later years. Generally, we set the RVP
level at 10.5 psi and 9.0 psi in the
northern states, under Phase I and II,
respectively.24 Between 1989 and 1992,
some northeastern states also adopted
9.0 psi RVP programs, which we
approved into their SIPs under section
211(c)(4)(C). These 9.0 psi RVP
programs remain in the SIPs of several
northeastern states. Two commenters
supported our decision to not include
these 9.0 psi RVP fuel programs on the
list. However, one commenter suggested
that we should include these programs
on the boutique fuels list and that
failure to include them would not fulfill
24 See
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40 CFR 80.27(a)(1) and (2).
28DEN1
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Congressional intent. This commenter
also stated that listing the 9.0 psi RVP
fuel type and then subsequently
removing the 9.0 psi RVP fuel type
would provide ‘‘room’’ on the list for
the adoption of another state fuel
program for the northeastern states, or
more specifically states in PADD 1.
Response: We do not believe that the
9.0 psi RVP fuel type should be
included on the list. We proposed not
to list the 9.0 psi RVP programs as a way
of reconciling the somewhat conflicting
provisions requiring us to list fuels and
to remove fuels that were identical to
federal fuel programs. At proposal, we
explained that we were obligated to
publish a list based on the total number
of fuels approved into SIPs under
section 211(c)(4)(C) as of September 1,
2004, and also required to remove a fuel
that is ‘‘identical to a Federal fuel
formulation implemented by the
Administrator’’ from the list. We further
explained that reading these provisions
literally would require us to
simultaneously include 9.0 psi RVP on
the list we are publishing today and at
the same time to remove it from the list.
We concluded that although several of
these 9.0 psi RVP programs remain in
the SIPs of some northeastern states,
Congress would not have intended such
an illogical approach, primarily because
the 9.0 psi RVP program could not be
viewed as contributing to the
proliferation of ’fuel islands.’’ 25 We
continue to believe that we should not
list 9.0 psi RVP as a fuel type on the list,
and in today’s notice we are not
including 9.0 psi RVP as a fuel type on
the list.
We also do not believe that listing and
then removing the 9.0 psi RVP fuel type
would provide for the adoption of a new
state fuel type for states in PADD 1. As
mentioned previously, the PADD
restriction strongly constrains our future
approval of ‘‘boutique fuels’’ because
states are limited to the types of fuels
already approved into SIPs in their
PADDs, with the exception of the 7.0 psi
RVP fuel type. Adding a 9.0 psi RVP
fuel type to the list and then removing
it would not change this. States in
PADD 1 would still be limited to
adopting a fuel already in a SIP in their
PADD or a 7.0 psi RVP fuel. Therefore,
we have not included 9.0 psi RVP
programs in the boutique fuels list
published today.
Comment: CARB fuels should be
included on the Boutique Fuels list.
Some commenters indicated that the
CARB reformulated gasoline (RFG), and
diesel programs should be included on
25 See 71 FR 32534 for a more detailed discussion
of our treatment of 9.0 RVP fuel programs.
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20:03 Dec 27, 2006
Jkt 211001
the list. One commenter believed that
the list should include CARB RFG and
diesel programs, and questioned our
decision not to list these programs.
Other commenters stated that although
CARB RFG and diesel programs have
not been approved into a SIP under
section 211(c)(4)(C), they should be
included on the list because they
present the same logistical issues as
boutique fuel programs. Another
commenter urged us to inform Congress
of our lack of authority to address CARB
RFG and diesel programs under section
211(c)(4)(C) if we believed we lacked
such authority.
Response: CAA section
211(c)(4)(C)(v)(II) requires us to
determine and publish the ‘‘total
number of fuels’’ approved into all SIPs,
under section 211(c)(4) as of September
1, 2004. We believe this provision
specifically refers to state fuels
programs ‘‘approved’’ into SIPs under
section 211(c)(4)(C). With such specific
language, we do not believe that
Congress intended us to include CARB
fuel programs that are approved into a
SIP under section110, based upon the
‘‘allowance’’ from preemption provided
under section 211(c)(4)(B), instead of
‘‘approved’’ under section 211(c)(4)(C).
We also note that under limited
circumstances, such as when there is
room on the list, adoption by a state in
PADD 5 of CARB RFG or diesel fuels
programs would not violate the PADD
restriction. See our discussion in
Section 1.D, above. Such adoption and
approval, however, would remain
subject to the other restrictions on our
authority to approve state fuels.
Comment: State Oxygenated fuels
should be included on the Boutique
Fuels list Some commenters indicated
that Congress intended that EPA should
include state oxygenated fuels programs
on the boutique fuels list, even though
they acknowledged that these programs
are not approved into SIPs under
section 211(c)(4)(C). Similarly, a
commenter noted that Nevada’s
oxygenated fuels program contains an
ethanol mandate that should be
included on the list. This commenter
also noted that the Nevada program
includes a 9.0 psi RVP cap in winter.
Response: Section 211(c)(4)(C)(v)(II)
requires us to determine the total
number of fuels we have approved into
all SIPs, under section 211(c)(4)(C), as of
September 1, 2004 and publish a list of
such fuels. We believe this provision
specifically refers to state fuels
programs ‘‘approved’’ into SIPs under
section 211(c)(4)(C). With such specific
language, we do not believe that
Congress intended us to include
oxygenated fuels programs that were not
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78197
approved into SIPs under section
211(c)(4)(C), but, rather, were approved
under sections 110 and 211(m). Since
the Nevada ethanol requirement is part
of an oxygenated fuels program that we
approved under sections 110 and
211(m), we do not believe it should be
included on the boutique fuels list we
are adopting today. Also, since there are
no federal wintertime RVP controls, the
Nevada wintertime RVP cap is not
preempted and is not approved into the
SIP under section 211(c)(4)(C), and we
do not believe it should be included on
the boutique fuels list we are adopting
today.
Comment: State biofuel mandates
should be included on the Boutique
Fuels list. Some commenters stated that
the list should include fuels required by
state biofuel mandates.
Response: Section 211(c)(4)(C)(v)(II)
requires us to determine the total
number of fuels we have approved into
all SIPs, under section 211(c)(4)(C), as of
September 1, 2004. We believe this
provision is very specific in referring to
state fuels programs ‘‘approved’’ into
SIPs under section 211(c)(4)(C). Since
the ethanol and biofuel mandates
(including biodiesel) that the
commenters reference were not
approved into a SIP under section
211(c)(4)(C) as of September 1, 2004,
they should not be placed on the list.
C. Addition and Removal of a Fuel Type
From the List
Comment: Two commenters noted
that beginning in 2007 there should be
an opportunity to consolidate the
boutique fuel list by eliminating the
unique gasoline sulfur requirements for
Atlanta, Georgia. According to the
commenters, beginning in 2007 early
sulfur credits under the Tier 2 gasoline
sulfur program will have been
exhausted and Atlanta and other parts
of the country would be receiving the
same gasoline with regard to sulfur
content. The Atlanta program would
simply be listed as one of the states
using the 7.0 psi RVP fuel type.
Response: As discussed above, we
must remove a fuel from the list when
the fuel type is ‘‘identical to a Federal
fuel formulation implemented by the
Administrator.’’26 Considering removal
of the Atlanta program from the list, at
this stage, however, would be
premature.
Comment: One commenter
recommended that EPA clarify the
procedure for adding a fuel to the list.
The commenter inquired as to whether
EPA would approve either a new fuel
26 See CAA section 211(c)(4)(C)(v)(III), 42 U.S.C.
7545(c)(4)(C)(v)(III)
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only for use in PADD 1 or one that
could be used in any other PADD
subsequent to removal of a fuel type
such as the ‘‘summer 7.0 psi RVP
gasoline with sulfur provisions,’’ which
the commenter noted is currently in use
only in PADD 1. The commenter also
inquired as to whether a state in PADD
3 could substitute ‘‘summer 7.0 psi RVP
gasoline with sulfur provisions’’ fuel
type with another new fuel type. The
commenter further inquired as to
whether such a substitution would
violate the PADD restriction in section
211(c)(4)(C)(v)(V).
Response: In sections I.B. and C. of
the preamble, we discussed how we
may remove a fuel type from the list,
and approve a ‘‘new fuel’’ into a SIP
under EPAct. In section I.D. of the
preamble we also discussed how the
PADD restriction in section
211(c)(4)(C)(v)(V) places a strong
constraint on our future approval of
‘‘boutique fuels’’ by effectively limiting
state fuels to both the types of fuels
currently in existence, and to the
PADDs in which they are currently
found, with the exception of 7.0 psi RVP
fuel type. We expect that if the ‘‘summer
7.0 psi RVP gasoline with sulfur
provisions’’ fuel type in PADD 1 is
removed from the list, the only fuels
types we may approve into a SIP in
PADD 3 would be fuel types that are
approved into SIPs in PADD 3 as of the
date of our consideration of a state’s
request to approve a fuel type.
D. Consultation with DOE
Comment: One commenter stated that
EPA’s consultations with DOE should
be part of the public record.
Response: We agree with this
comment. We did consult with DOE
Staff as part of the development of the
June 6, 2006 notice and the draft
boutique fuels list it announced. We
have docketed DOE’s concurrence with
the approach proposed. We have also
consulted with DOE staff on developing
today’s notice and the list it adopts and
we have docketed DOE’s concurrence
with this final notice.
sroberts on PROD1PC70 with NOTICES
E. General Comments
Comment: EPA should explain how
the list will be affected by a request
from a state governor not to allow the
1.0 psi ethanol waiver as permitted by
section 211(h)(5) of EPAct.
Response: As mentioned earlier in the
preamble, our approval of state fuel
programs with or without a 1.0 psi
waiver for ethanol blended gasoline
does not have any impact on federal
RVP programs, which are authorized by
section 211(h). For areas covered by
federal RVP programs, section 211(h)(4)
of the Clean Air Act allows a 1.0 psi
RVP waiver for gasoline blends
containing 10% ethanol. Section
211(h)(5) also permits the governor of a
state to petition EPA to remove the 1.0
psi RVP waiver if the state provides
documentation that the 1.0 psi ethanol
waiver increases emissions. The EPA’s
interpretation of section 211(c)(4)(C)
above, has no impact on such federal
RVP programs.
Comment: EPA should provide a more
nuanced analysis of fuel categories that
considers how fuel properties fall into a
hierarchy of substitutability that affects
supply flexibility, both from a
perspective of vehicle impacts as well as
legal constraints. For example, a state
requiring gasoline with a 7.8 RVP limit
also can legally allow gasoline with a
7.2 or 7.0 RVP limit.
Response: Fuels that meet more
stringent standards than those required
by a SIP may be supplied as compliant
fuel in any SIP covered area. Evaluating
SIP fuels from a perspective of vehicle
impacts is outside the scope of today’s
Notice.
Comment: EPA approval of state fuels
should include supply impacts of all
unique fuels, such as California fuels,
state winter oxygenate fuels, statemandated biofuels, federal RFG, and
federal RVP-controlled fuels. Several
commenters recommended that, when
reviewing the supply impacts of a
proposed SIP fuel, EPA consider all
unique fuels, such as California fuels,
state winter oxygenate fuels, statemandated biofuels, federal RFG, and
federal RVP-controlled fuels, even if
these fuels are not on the boutique fuel
list that we are publishing in today’s
notice. Commenters also urged EPA to
include these unique fuel requirements
in the § 1509 Fuel Harmonization Study
that EPA and DOE are currently
preparing for Congress.
Response: As explained above, before
approving a ‘‘new fuel’’ into a SIP,
where there is ‘‘room’’ on the list, EPA
is required to make a finding, after
consultation with the DOE, on the
impact of the ‘‘new fuel’’ on fuel supply,
distribution, and producibility. In
reviewing the supply implications of a
‘‘new fuel,’’ EPA agrees that it is
reasonable to consider all fuels in the
area although such fuels are not on the
boutique fuels list. The supply
implications of a ‘‘new fuel’’ can best be
understood by evaluating them in the
context of the other fuel requirements
applicable to fuel distributed in that
area. Therefore, we believe it is
appropriate to consider ‘‘unlisted’’ fuels
such as biofuels or oxygenated gasoline
when determining whether or not a
‘‘new fuel’’ will present supply or
distribution interruptions or will have a
significant adverse impact on fuel
producibility in the affected or
contiguous areas. We also recognize that
including these ‘‘unlisted’’ fuels in the
EPAct section1509 fuel harmonization
study is appropriate.
Comment: One commenter said that
EPA should allow more time for states
to demonstrate attainment with the 8
hour ozone NAAQS and the PM2.5
NAAQS. Allowing states more time will
enable them to realize the benefits of
federal fuels programs that have not yet
been fully implemented (low sulfur
gasoline and ultra-low sulfur diesel),
and lessen the pressure on individual
states to add motor fuel controls to their
SIPs to demonstrate attainment.
Response: Determining timelines for
states to demonstrate attainment with
the various NAAQS is outside the scope
of today’s Notice.
III. Publication of the Boutique Fuel
List
A list of the eight (8) fuel types
approved into SIPs under section
211(c)(4)(C) as of September 1, 2004, the
states, and the PADD they are used in
is set forth in the following Table.
Please note that this table varies from
the draft table for the fuel type
interpretation published in the June 6,
2006 notice, which contained seven fuel
types. Specifically, we have divided the
Arizona CBG program into summer and
non-summer. The Arizona summer CBG
program includes the 7.0 psi RVP
requirement that appeared on the draft
table, but covers all the CBG
requirements applicable between May 1
and September 30.
TOTAL NUMBER OF FUELS APPROVED IN STATE IMPLEMENTATION PLANS (SIPS) UNDER CAA SECTION 211(C)(4)(C) AS
OF SEPTEMBER 1, 2004
Type of fuel control
PADD
RVP of 7.8 psi 1 ........................................................
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1
1
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3–PA
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TOTAL NUMBER OF FUELS APPROVED IN STATE IMPLEMENTATION PLANS (SIPS) UNDER CAA SECTION 211(C)(4)(C) AS
OF SEPTEMBER 1, 2004—Continued
Type of fuel control
PADD
Region–state
2
2
3
2
2
2
3
3
1
3
5
5
5
RVP of 7.2 psi ...........................................................
RVP of 7.0 psi ...........................................................
RVP of 7.0 with gasoline sulfur provisions ...............
Low Emission Diesel .................................................
Cleaner Burning Gasoline (Summer) ........................
Cleaner Burning Gasoline (non-Summer) .................
Winter Gasoline (aromatics & sulfur) ........................
5–IN
5–MI
6–TX (May 1-Oct. 1)*
5–IL
7–KS
7–MO
4–AL
6–TX
4–GA
6–TX
9–AZ (May 1–Sept 30)
9–AZ (Oct 1–Apr 30)
9–NV
* Dates listed in parentheses refer to summer gasoline programs with different RVP control periods from the federal RVP control period, which
runs from June 1 through September 15.
Dated: December 21, 2006.
Stephen L. Johnson,
Administrator.
[FR Doc. E6–22313 Filed 12–27–06; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[ FRL–8263–7]
Request for Member Nominees to the
Proposed Adaptation for ClimateSensitive Ecosystems and Resources
Advisory Committee (ACSERAC)
Environmental Protection
Agency (EPA).
ACTION: Notice; Request for nominations
to the proposed Adaptation for ClimateSensitive Ecosystems and Resources
Advisory Committee (ACSERAC).
sroberts on PROD1PC70 with NOTICES
AGENCY:
SUMMARY: As required by section 9(a)(2)
of the Federal Advisory Committee Act,
we are giving notice that EPA is inviting
nominations for membership on the
proposed Adaptation for ClimateSensitive Ecosystems and Resources
Advisory Committee (ACSERAC). The
purpose of this proposed Committee is
to provide advice on the conduct of a
study titled, ‘‘Preliminary Review of
Adaptation Options for ClimateSensitive Ecosystems and Resources,’’ to
be conducted as part of the U.S. Climate
Change Science Program (CCSP). This
assessment is part of a comprehensive
set of assessments identified by the
CCSP’s Strategic Plan for the Climate
Change Science Program. The proposed
ACSERAC will advise on the specific
issues that should be addressed in the
assessment, appropriate technical
approaches, the type and usefulness of
information to decision makers, the
content of the final assessment report,
compliance with the Information
VerDate Aug<31>2005
20:03 Dec 27, 2006
Jkt 211001
Quality Act, and other matters
important to the successful achievement
of the objectives of the study. EPA has
determined that this proposed federal
advisory committee is in the public
interest and will assist the Agency in
performing its duties under the Clean
Water Act, Clean Air Act, and the
Global Climate Protection Act. The draft
prospectus for the study is on the CCSP
Web site at https://
www.climatescience.gov/Library/sap/
sap4-4/sap4-4prospectus-final.htm.
Proposed committee membership will
total approximately ten (10) persons,
who will serve as Special Government
Employees or Regular Government
Employees. The membership of the
proposed committee will include a
balanced representation of interested
persons with professional and personal
qualifications and experience to
contribute to the functions of the
proposed committee. In selecting
members EPA will consider individuals
from the Federal Government, State
and/or local governments, Tribes, the
scientific community, nongovernmental organizations and the
private sector with expertise,
experience, knowledge and interests
essential to, or affected by, the
successful completion of the study. Any
interested person or organization may
submit a nomination. Nominations
should be identified by name,
occupation, organization, position,
address, and telephone number, and
must include a complete resume of the
nominee’s background, experience and
expertise, and any other information
considered relevant. Additional avenues
and resources will be utilized by EPA in
the solicitation of nominees. Copies of
the Committee Charter will be filed with
the appropriate congressional
committees and the Library of Congress.
PO 00000
Frm 00072
Fmt 4703
Sfmt 4703
Nominations should be received
by January 18, 2007.
ADDRESSES: Submit nominations to
Joanna Foellmer (8601D), National
Center for Environmental Assessment,
Immediate Office, U.S. Environmental
Protection Agency, 1200 Pennsylvania
Avenue, NW., Washington, DC 20460;
Telephone: (202) 564–3208; e-mail
address: Foellmer.joanna@epa.gov.
FOR FURTHER INFORMATION CONTACT:
Joanna Foellmer (8601D), National
Center for Environmental Assessment,
Immediate Office, U.S. Environmental
Protection Agency, 1200 Pennsylvania
Avenue, NW., Washington, DC 20460;
Telephone:
(202) 564–3208; e-mail address:
Foellmer.joanna@epa.gov. The Agency
will not formally acknowledge or
respond to suggestions.
SUPPLEMENTARY INFORMATION: The
purpose of the proposed committee is to
provide advice on the conduct of the
study titled, ‘‘Preliminary Review of
Adaptation Options for ClimateSensitive Ecosystems and Resources,’’ to
be conducted as part of the U.S. Climate
Change Science Program (CCSP). This
study will focus on adaptation to
anticipated impacts of climate change
on federally owned and managed lands
and waters. Within the context of the
assessment’s prospectus, the proposed
ACSERAC will advise on the specific
issues to be addressed, appropriate
technical approaches, the type and
usefulness of information to decision
makers, the content of the final
assessment report, compliance with the
Information Quality Act, and other
matters important to the successful
achievement of the objectives of the
study. Individuals and organizations
interested in submitting nominations for
membership should familiarize
themselves with the final prospectus for
DATES:
E:\FR\FM\28DEN1.SGM
28DEN1
]]>Agencies
[Federal Register Volume 71, Number 249 (Thursday, December 28, 2006)]
[Notices]
[Pages 78192-78199]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-22313]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2006-0340; FRL-8262-6]
Boutique Fuels List under Section 1541(b) of the Energy Policy
Act
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Energy Policy Act of 2005 (EPAct) includes a number of
provisions addressing state boutique fuel programs. Section 1541(b) of
this Act requires EPA, in consultation with the Department of Energy,
to determine the total number of fuels approved into all state
implementation plans (SIPs) as of September 1, 2004, under section
211(c)(4)(C) of the Clean Air Act (CAA). The EPAct also requires us to
publish a list of such fuels, including the states and Petroleum
Administration for Defense District (PADD) in which they are used, for
public review and comment. On June 6, 2006, we published a draft list
based upon a ``fuel type approach'' along with an explanation of our
rationale in developing it. We also published an alternative list based
upon a ``state specific approach.'' In this notice we are finalizing
the list of total number of fuels approved into all SIPs as of
September 1, 2004, based upon the fuel type approach. This notice also
addresses comments that we received on the proposed draft notice and
list.
FOR FURTHER INFORMATION CONTACT: Anne Pastorkovich, Environmental
Protection Agency, MC 6406J, 1200 Pennsylvania Ave., NW, Washington, DC
20460; telephone number: 202-343-9623; fax number: 202-343-2801; email
address: pastorkovich.anne-marie@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Under the Clean Air Act (CAA), state fuel programs respecting a
fuel characteristic or component that we have regulated under section
211(c) (1) are preempted.\1\ EPA may waive preemption through approval
of the fuel program into a State Implementation Plan (SIP). Approval
into the SIP
[[Page 78193]]
requires a demonstration that the state fuel program is necessary to
achieve the National Ambient Air Quality Standards (NAAQS) that the
plan implements.\2\ ``Necessary'' means that no other measures exist
that would bring about timely attainment or that other measures exist
and are technically possible to implement, but are unreasonable or
impracticable.\3\ These state fuels programs, which are often referred
to as ``boutique'' fuel programs because they differ from the federal
fuel required in the area, have been adopted by the state to address a
specific local air quality issue. One issue presented by boutique fuels
is that when events (such as hurricanes or pipeline and refinery
breakdowns) lead to fuel supply shortages, varying fuel standards can
complicate the process of quickly solving the supply interruption.
---------------------------------------------------------------------------
\1\ See CAA section 211(c)(4)(A), 42 U.S.C. 7545(c)(4)(A).
\2\ NAAQS are standards for ambient levels of certain air
pollutants (e.g. ground-level ozone) and are designed to protect
public health and welfare.
\3\ See CAA section 211(c)(4)(C)(i), 42 U.S.C. 7545(c)(4)(C)(i).
---------------------------------------------------------------------------
The Energy Policy Act of 2005 (EPAct) amends the CAA by placing
additional restrictions on our authority to waive preemption by
approving a state fuel into the SIP. These restrictions are:
We cannot approve a state fuel if it would cause the total
number of fuels approved into SIPs to increase above the number
approved as of September 1, 2004.
In cases where our approval would not increase the total
number of such fuels, because the total number of fuels in SIPs at that
point is below the number of fuels as of September 1, 2004, then our
approval requires a finding, after consultation with the Department of
Energy (DOE), that the new fuel will not cause supply or distribution
interruptions or have a significant adverse impact on fuel
producibility in the affected or contiguous areas.\4\
---------------------------------------------------------------------------
\4\ See CAA section 211(v)(4)(C)(v)(IV), 42 U.S.C.
7545(c)(4)(C)(v)(IV).
---------------------------------------------------------------------------
We cannot approve a state fuel into a SIP unless the fuel
is already in an existing SIP within that PADD, with the exception of a
7.0 psi RVP fuel.\5\ EPA's approval of a 7.0 psi RVP fuel would,
however, be subject to the other EPAct restrictions.
---------------------------------------------------------------------------
\5\ See CAA section 211(c)(4)(C)(v)(V), 42 U.S.C.
7545(c)(4)(C)(v)(V). For a pictorial depiction of the PADD map,
please refer to ``Petroleum Administration for Defense Districts''
at https://www.eia.doe.gov/pub/oil_gas/petroleum/analysis_
publications/oil_market_basics/paddmap.htm.
---------------------------------------------------------------------------
As these restrictions make clear, how we determine the total number
of fuels on the list may greatly affect states' ability to have future
boutique fuels programs approved into SIPs.
Section 1541(b) of the EPAct also requires us, in consultation with
the Department of Energy (DOE), to determine the total number of fuels
approved into all state implementation plans (SIPs) as of September 1,
2004, under section 211(c)(4)(C), and publish a list of such fuels,
including the state and PADD in which they are used for public review
and comment. On June 6, 2006, we published a draft list of state fuels
approved into SIPs under section 211(c)(4)(C) as of September 1, 2004
for public review and comment.\6\ The notice included our draft
interpretation of the various EPAct boutique fuels provisions described
above. As we discussed in the notice, the EPAct is ambiguous as to the
meaning of ``total number of fuels.'' We provided two proposed
interpretations for developing the list. The first proposed approach
was the ``fuel type approach.'' As explained in the notice, this
approach would treat each type or kind of fuel as a separate fuel,
without respect to the number of different state implementation plans
that include this fuel type. For example, all state fuels with a Reid
Vapor Pressure of 7.8 pounds per square inch (psi) would be considered
as one fuel in determining the total number of fuels approved as of
September 1, 2004.\7\ While several states had a 7.8 psi RVP program on
that date, they would not be treated as different fuels in determining
the ``total number of fuels,'' but as different states using a single
fuel type. This approach resulted in a draft list with seven different
fuel types. 71 FR 32533.
---------------------------------------------------------------------------
\6\ See ``Draft Boutique Fuels List Under Section 1541(b) of the
Energy Policy Act and Request for Public Comment--Notice.'' 71 FR
32532, 32533 (June 6, 2006).
\7\ Reid Vapor Pressure is the common measure of fuel
volatility. Volatility is the tendency of fuel to evaporate.
---------------------------------------------------------------------------
We also provided an alternative interpretation, called the ``state
specific approach.'' Under this approach, each individual state using a
type or kind of fuel in a SIP would be considered a separate fuel. For
example, each state having a 7.8 psi RVP fuel in its SIP could be
treated as having a separate fuel for purposes of determining the
``total number of fuels.'' The state specific interpretation would lead
to as many fuels as there are state fuel programs in the various PADDs
and, as proposed, would have resulted in 15 different fuels.\8\ 71 FR
32533-34.
---------------------------------------------------------------------------
\8\ For a more detailed description of the ``fuel type
approach'' and the ``state specific approach,'' see 71 FR 32532,
32533-34. Also see the tables corresponding to these approaches on
pages 32535-36 of that notice.
---------------------------------------------------------------------------
A. Our Final Interpretation of the EPAct Boutique Fuel Provisions
In today's notice, we are adopting the fuel type interpretation. We
are determining the total number of state fuels approved into SIPs
under section 211(c)(4)(C) as of September 1, 2004 based on the fuel
type interpretation. We will use both the fuel type interpretation and
the final list of fuels in implementing the three EPAct criteria for
future decisions on approval of a state fuel into a SIP. Specifically,
these criteria present the following restrictions on our ability to
approve future state fuels into SIPs:
We cannot approve a state fuel into a SIP under section
211(c)(4)(C) if it would cause the total number of fuel types on the
list to increase above the number approved on September 1, 2004.\9\
Under the fuel type interpretation, our approval of a state 7.8 psi RVP
program, for example, would not cause an increase in the number of fuel
types on the list because that type of RVP program is already on the
list.
---------------------------------------------------------------------------
\9\ See CAA section 211(c)(4)(C)(v)(I), 42 U.S.C.
7545(c)(4)(C)(v)(I).
---------------------------------------------------------------------------
In cases where our approval of a fuel would increase the
total number of fuels types on the list but not above the number
approved as of September 1, 2004, because the total number of fuel
types in SIPs is below the number of fuels types as of September 1,
2004, we are required to make a finding after consultation with the DOE
that the fuel does not cause supply or distribution interruptions or
have a significant adverse impact on fuel producibility in the affected
or contiguous areas. Under the fuel type interpretation, where there is
``room'' on the list, we may approve a state fuel program, after
consultation with the DOE, and a finding that the state fuel will not
cause either supply or distribution interruptions or have a significant
adverse impact on fuel producibility in either the affected or
contiguous areas.
We cannot approve a state fuel into a SIP unless that fuel
type is already in a SIP in the applicable PADD, with the exception of
the 7.0 psi RVP fuel type.\10\ Under the fuel type interpretation that
we are adopting today, the PADD restriction would not extend to our
approval of a 7.0 psi RVP fuel, although our approval of a 7.0 psi RVP
fuel would remain subject to the other EPAct restrictions, discussed
above. See also Section I.C. below for a further discussion of our
interpretation and
[[Page 78194]]
implementation of the PADD restriction provision in PADD 5.
---------------------------------------------------------------------------
\10\ See CAA section 211(c)(4)(C)(v)(V), 42 U.S.C.
7545(c)(4)(C)(v)(V).
---------------------------------------------------------------------------
B. List of Fuel Types
We have also modified the draft list in response to comments that
we received on the proposed notice, and it now contains a total of 8
different fuel types. See Section III, below, for the final List of
State Fuels approved under section 211(c)(4)(C) as of September 1,
2004.
(i) 9.0 psi RVP Fuel Type
In proposing the draft list of boutique fuels, we recognized that
there were a few states that had 9.0 psi RVP fuel programs approved
into their SIPs as of September 1, 2004. We explained, however, that we
do not believe that we should include a 9.0 psi RVP fuel type on the
boutique fuels list required by EPAct. We explained that we were
obligated to publish a list based on the total number of fuels approved
into SIPs under section 211(c)(4)(C) as of September 1, 2004, and also
required to remove a fuel that is ``identical to a Federal fuel
formulation implemented by the Administrator,'' from the list.\11\
Because the current federal RVP requirement in all of these
northeastern states is 9.0 psi RVP, and was as of September 1, 2004,
reading the EPAct provisions literally would require EPA to include a
9.0 psi RVP fuel type on the list but to remove it from the list at the
same time. We proposed to exclude the 9.0 psi RVP fuel type from the
list in order to avoid this illogical outcome. As we further explained
in the notice, we do not believe that the 9.0 psi RVP fuel type would
be viewed as contributing to the proliferation of ``fuel islands'' that
Congress was concerned about.\12\ We continue to believe that the
appropriate way to reconcile these apparently conflicting provisions is
to exclude the 9.0 psi RVP fuel type from the list. We do not believe
that adoption of the fuel type interpretation affects our decision not
to list the 9.0 psi RVP fuel type.
---------------------------------------------------------------------------
\11\ See CAA section 211(c)(4)(C)(v)(III), 42 U.S.C.
7545(c)(4)(C)(v)(III).
\12\ See 71 FR 32532, 32534.
---------------------------------------------------------------------------
We received two comments concerning our treatment of the 9.0 psi
RVP fuel type. Our response to these comments can be found in ``Section
II. Comment Summary and Response,'' below.
(ii) Arizona Clean Burning Gasoline (CBG)
Under our proposed fuel type interpretation, we listed the total
number of fuels based on the kind or type of fuel approved into a SIP
as of September 1, 2004. 71 FR 32533. We also determined the fuel type
or kind based on the required specific fuel components, specifications,
or limits of each fuel type (for example, 7.8 psi RVP, 7.2 psi RVP or
7.0 psi RVP). At proposal therefore, we listed 7.0 psi RVP as a fuel
type with Arizona as one of the 5 states that uses this fuel type. We
also listed Arizona Clean Burning Gasoline (CBG) as a separate fuel
type. We received two comments on our proposal. Both commenters
recommended that we list Arizona CBG as two types of fuels, namely
summertime and wintertime CBG. Both commenters said that specifications
for CBG were different in winter, which was described as the period
beginning November 2-March 31, and summer, which was described as the
remaining portions of the calendar year. Also one commenter stated that
both summer and winter CBG have different specifications for RVP,
sulfur, aromatics, olefins, E200 and E300.
In today's notice, we are listing Arizona CBG as two fuel types--
summer CBG and non-summer CBG. (See section III below for our final
list of the fuel types). We agree with the commenters that Arizona's
CBG program has several components, specifications or limits for summer
CBG, such as the 7.0 psi RVP requirement, that are different from non-
summer CBG. We also believe summer CBG requirements, which have been
adopted by Arizona to address ozone nonattainment, include the 7.0 psi
RVP requirement. We are therefore listing summer CBG as one fuel type,
because it has specifications that are different from non-summer CBG.
We have removed Arizona from the list as one of the states that uses
the 7.0 psi fuel type. We believe that our decision to list CBG as two
fuel types is similar to our listing of the Atlanta 7.0 psi RVP with
sulfur provisions as a separate fuel type. At proposal we also
specified the control period for Arizona's 7.0 psi RVP program as June
1-September 30. In today's notice, we are specifying May 1-September 30
as the time period for the CBG summer control period, in order to
correspond with the start date of Arizona's summer CBG control period
(May 1) and the end date of Arizona's 7.0 psi RVP control period
(September 30).
One consequence of our decision to list Arizona CBG as two fuel
types is that states in PADD 5 seeking to adopt state fuel programs
would now have a wider choice of fuel types for purposes of addressing
local air quality problems.
(iii) RVP Fuel Types that Do Not Provide a 1.0 psi Waiver for Ethanol-
Blended Gasoline
In our draft list published June 6, 2006, we did not list any of
the RVP programs that do not provide a 1.0 psi waiver for ethanol-
blended gasoline as separate fuel types. More specifically, we proposed
listing the 7.8 psi RVP program for western Pennsylvania, and the 7.0
psi RVP program for El Paso, Texas as part of the 7.8 psi and 7.0 psi
fuel types respectively. Both programs explicitly do not provide a 1.0
psi waiver for ethanol blends, and we have approved this requirement
into the respective SIPs.\13\ We received two comments supporting our
proposed decision not to list these fuel programs as separate fuel
types, and one comment inquiring as to why EPA made no mention of RVP
waivers for 10% ethanol-gasoline blends. Our response to these comments
can be found in ``Section II. Comment Summary and Response,'' below.
---------------------------------------------------------------------------
\13\ Most SIPs explicitly allow the 1.0 psi waiver for ethanol-
blended gasoline. However, some SIPs are silent regarding the 1.0
psi waiver for ethanol-blended gasoline, and our understanding is
that these SIPs do not allow for such a waiver.
---------------------------------------------------------------------------
Listing fuel programs as separate fuel types depending on whether
they allow or do not allow a 1.0 psi waiver for ethanol-blended
gasoline would have several consequences. First, states in the same
PADD as either Pennsylvania and Maine (PADD 1), or Texas (PADD 3), that
want to adopt 7.8 psi RVP programs, would not be able to adopt a 7.8
psi RVP program in their SIP that allows a 1.0 psi waiver for ethanol-
blended gasoline, because there is no 7.8 psi RVP program approved in
any SIP in either PADD 1 or 3 that allows a 1.0 psi waiver for ethanol
blends. Conversely, states in PADD 2 that want to adopt a 7.8 psi RVP
program would only be able to adopt a 7.8 psi RVP program that allows a
1.0 psi waiver for ethanol-blended gasoline, because there is no RVP
program approved in a SIP in PADD 2 that does not allow a 1.0 psi
waiver for ethanol blends.
Another consequence of listing separate fuel types for areas that
do not allow a 1.0 psi ethanol waiver is that we would have to decide
how to treat the 7.0 psi RVP fuel type under EPAct. The EPAct treats
the 7.0 psi RVP fuel type differently from other fuel types by allowing
EPA to approve a state 7.0 psi RVP fuel even if no other states in the
same PADD already have a 7.0 psi RVP fuel approved in their SIP (see
Section I.C. below). The EPAct does not specify whether future
approvals of 7.0 psi RVP SIP fuels should be allowed with a 1.0
[[Page 78195]]
psi ethanol waiver, without a 1.0 psi ethanol waiver, or whether states
should be able to choose whether or not they want to allow a 1.0 psi
ethanol waiver.\14\
---------------------------------------------------------------------------
\14\ It is important to note that this discussion of approval of
state fuel programs with or without a 1.0 psi waiver for ethanol
blends has no impact on EPA's federal RVP program. In the federal
RVP program there is a 1.0 psi waiver for ethanol blends, subject to
the provisions for exclusion of the 1.0 psi waiver adopted in EPAct.
Section 211(h)(4), (5). EPA's interpretation of the section
211(c)(4)(C) boutique fuels provisions above has no impact on the
federal RVP program adopted under the provisions of section 211(h).
---------------------------------------------------------------------------
We are not listing RVP programs as separate fuel types according to
whether or not they allow the 1.0 psi ethanol waiver. We believe that
listing SIP fuels in this manner would reduce fuel fungibility and
reduce states' flexibility, which are contrary to Congressional intent.
As explained above, one consequence of such a listing is that a state
in PADD 1 that wants to adopt a 7.8 psi RVP program into their SIP
could not allow the 1.0 psi ethanol waiver because there is no RVP
program in a SIP in PADD 1 that allows a 1.0 psi waiver for ethanol-
blended gasoline. We believe that if a state in PADD 1 adopts a 7.8 psi
fuel program that does not allow a 1.0 psi waiver for ethanol-blended
gasoline, refiners would be required to either not blend ethanol into
gasoline in the area covered by the new SIP, or supply a special sub-
RVP blendstock which, when blended with ethanol, would meet the 7.8 psi
RVP standard. If refiners choose to supply a special blendstock, which
meets the 7.8 psi RVP standard when blended with ethanol, the
blendstock would have to be produced and transported separately from
all other fuels. We believe this would run counter to EPAct's intention
of promoting fuel fungibility.
Additionally, because the exception allowed for 7.0 psi RVP fuel
programs makes no mention as to whether new 7.0 psi RVP fuel programs
should be permitted with or without the 1.0 psi ethanol waiver, we
believe that Congress was primarily concerned with classifying fuel
types according to RVP limits, instead of whether or not they allowed
the 1.0 psi ethanol waiver. We therefore, believe that listing fuel
types solely according to RVP limits is most consistent with Congress's
intent to improve fuel fungibility.
C. Removal of Fuel Types from the List
We are required to remove a fuel from the published list of fuels
if the fuel is either identical to a federal fuel or is removed from
the SIP into which it is approved.\15\ At proposal we explained that
under the fuel type interpretation, a fuel type would be removed from
the list only if that fuel type was either identical to a federal fuel
or removed from all SIPs with that type of fuel program. 71 FR 32534.
We also proposed how we would implement the provision relating to
removal of a fuel from the published list.\16\ 71 FR 32535. We received
two comments on our proposed implementation of this provision to remove
a fuel from the published list. Our response to these comments can be
found in ``Section II. Comment Summary and Response,'' below.
---------------------------------------------------------------------------
\15\ See CAA section 211(c)(4)(C)(v)(III), 42 U.S.C.
7545(c)(4)(C)(v)(III).
\16\ See 71 FR 32532, 32534.
---------------------------------------------------------------------------
In today's notice we are adopting the fuel type interpretation, and
as proposed we will be removing a fuel from the list if it is either
identical to a federal fuel or if it is removed from all SIPs into
which it is approved. Our removal of a fuel type that either ceases to
exist in any SIP or that is identical to a federal fuel formulation may
create ``room'' on the list, and subsequently, subject to the three
restrictions discussed above, we can approve a ``new fuel'' type into a
SIP.
D. Approval of a ``New Fuel''
The EPAct provides that before approving a ``new fuel'' into a SIP,
where there is room on the list for additional fuels, we must make a
finding, after consultation with the DOE, on the impact of the ``new
fuel'' on fuel supply, distribution, and producibility. We also
addressed the EPAct use of the term ``new fuel'', under the fuel type
interpretation.\17\ We explained that the term ``new fuel'' may be
somewhat problematic under the fuel type interpretation. A new fuel
type would be a fuel type that is not already on the list, however, the
PADD restriction would preclude the approval of a new fuel type if that
fuel type is not already approved into a SIP in the applicable
PADD.\18\ At proposal, we explained that because there is an exception
to the PADD restriction for a 7.0 psi RVP program, we could under
limited circumstances give meaning to the term ``new fuel'' under the
proposed fuel type interpretation.\19\ We received one comment on our
proposed implementation of this provision for the addition of a ``new
fuel'' to the published list. Our response to this comment can be found
in ``Section II. Comment Summary and Response,'' below.
---------------------------------------------------------------------------
\17\ See CAA section 211(c)(4)(C)(v)(IV), 42 U.S.C.
7545(c)(4)(C)(v)(IV).
\18\ See CAA section 211(c)(4)(C)(v)(IV), 42 U.S.C.
7545(c)(4)(C)(v)(V) and 71 FR 32532, 32534.
\19\ Congress exempted 7.0 psi RVP programs from the PADD
restriction. While the other EPAct provisions on boutique fuels do
apply to 7.0 psi RVP programs, the specific limitation on PADD usage
in section 211(c)(4)(C)(v)(V) does not apply. Also see 71 FR 32532,
32534.
---------------------------------------------------------------------------
In today's notice, we are adopting the fuel type interpretation,
and as proposed, we will give meaning to the term ``new fuel'' under
the limited circumstances where a state seeks to adopt a 7.0 psi RVP
program. At such a time, we also expect to make a finding on the impact
of the ``new fuel'' on fuel supply, distribution, and producibility,
after consultation with the DOE.
We also believe that we could give meaning to the term ``new fuel''
where states within PADD 5 seek our approval to adopt a fuel program
that has been approved into California's SIP. See our discussion of the
PADD restriction, California Air Resources Board (CARB) fuels, and
states in PADD 5 in Section I.D. below. We believe that under this
additional limited circumstance, where states in PADD 5 are seeking to
adopt CARB fuels approved into California's SIP, and there is room on
the list for a new fuel type, we could give meaning to the term ``new
fuel'' to include a CARB fuel program, under the fuel type
interpretation that we are adopting today. At such a time, we will also
make a finding on the impact of the ``new fuel'' on fuel supply,
distribution, and producibility, after consultation with the DOE.
E. The PADD Restriction
The EPAct constrains our approval of ``any fuel unless that fuel''
was already approved into at least one SIP in the applicable PADD as of
the date of our consideration of a state's request.\20\ At proposal we
explained that for a state fuel program to be approved into a SIP in
the future, the effect of the PADD restriction is that the fuel type
must have been approved into a SIP in that PADD as of the date of our
consideration of a state's request (with the exception of 7.0 psi RVP
programs).\21\ We explained in the notice that the PADD restriction
places a strong constraint on our future approval of ``boutique fuels''
because it effectively limits state fuels to both the types of fuels
currently in existence, and to the PADDs in which they are currently
found.\22\ We also received several comments on our treatment of CARB
fuels. Our response to these comments can be found below in section
II.B.
---------------------------------------------------------------------------
\20\ See CAA section 211(c)(4)(C)(v)(V), 42 U.S.C.
7545(c)(4)(C)(v)(V).
\21\ See 71 FR 32532, 32534.
\22\ See 71 FR 32532, 32534-32535.
---------------------------------------------------------------------------
In today's notice we are adopting the fuel type interpretation and
finalizing a
[[Page 78196]]
list of fuel types under this interpretation. Moreover, as proposed, we
can approve a state fuel program if the fuel type (except for 7.0 psi
RVP programs) has been approved into a SIP in the applicable PADD as of
the date of our consideration of a state's request. Additionally,
because we are allowed to approve a fuel if it is ``approved in at
least one [SIP] in the applicable [PADD],'' we believe that there is a
limited circumstance in PADD 5 where we could approve a fuel type that
is in a SIP in that PADD although such a fuel type is not on the list
that we have published today.\23\ Our approval would however, be
subject to the three restrictions we have listed and discussed earlier.
If our approval will not cause an increase in the number of fuel types
above those approved as of September 1, 2004, i.e., if there is ``room
on the list,'' we could approve for states within PADD 5 a fuel program
that is in California's SIP, without violating the PADD restriction.
CARB fuels are approved into California's SIP, but because the approval
is not under CAA section 211(c)(4)(C) we have not placed CARB fuels on
the list of fuels we are publishing today. Under the PADD restriction
provision, however, we are only required to approve a fuel if it is
``approved in at least one [SIP] in the applicable [PADD].'' We would,
therefore, not be prohibited from approving CARB fuels for states
within PADD 5, because CARB fuels are approved into a SIP in the
applicable PADD. As earlier explained, adoption and approval of CARB
fuels, however, remains subject to our meeting the three restrictions
we have listed and discussed, above.
---------------------------------------------------------------------------
\23\ CAA section 211(c)(4)(C)(v)(V), 42 U.S.C.
7545(c)(4)(C)(v)(V)
---------------------------------------------------------------------------
We continue to believe that under the fuel type interpretation,
states would generally adopt fuels programs but only in those limited
cases where that fuel type is already found in their PADD. We also
continue to believe that this interpretation addresses the ``fuel
islands'' concerns, while continuing to preserve an important degree of
flexibility and choice of states in developing air pollution control
programs.
II. Comment Summary and Response
We received thirteen sets of comments on the boutique fuels notice.
These comments were submitted to the public docket. Our responses to
comments are as follows:
A. Comments on the Fuel Type Approach versus the State Specific
Approach.
Comment: The Fuel Type Approach is Preferred. All commenters
supported the fuel type approach except one who expressed no opinion.
No commenter supported a state-specific approach.
Response: We agree that the fuel type approach is preferable for
several reasons. The fuel type approach will implement the intent of
the EPAct, while preserving some choice for states in meeting the
NAAQS.
B. Comments Regarding State Fuel Programs Not Included on the Draft
State Boutique Fuels List
Comment: Arizona Clean Burning Gasoline (CBG) should be listed as
two separate fuel types. Two commenters suggested that we list Arizona
CBG as two fuel types on the list--summer CBG and winter CBG. According
to one commenter, this is because the Arizona CBG has specifications
for RVP, sulfur, aromatics, olefins, E200 and E300 during summer that
are different from the specifications for winter. The commenter also
stated that the summer specifications address the ozone NAAQS, while
the winter specifications address the CO NAAQS, and that the differing
fuel specifications results in ``unique supply and distribution
issues.'' Another commenter stated that we had failed to ``adequately
characterize Arizona CBG which is actually two different fuels
depending on the time of year involved.''
Response: We agree that Arizona CBG should be listed as two
separate fuel types. Arizona requires winter CBG to meet a set of
specific standards for RVP, sulfur, aromatics, olefins, T50, T90 and
oxygen. Arizona, however, allows summer CBG to either meet the same set
of specific standards (for sulfur, aromatics, olefins, T50, T90 and
oxygen), or alternatively meet performance standards for emissions
reductions in VOC and NOX. As explained in Section 1.A,
above, summer CBG includes specification for 7.0 psi RVP. Thus, because
CBG has components, specifications or limits for summertime that are
different from non-summertime specifications, we are listing CBG as two
fuel types. In today's notice, therefore, we are listing summertime
CBG, which includes the 7.0 psi RVP requirement and non-summertime CBG.
(See Section III, below, for our list of the fuels approved into all
SIPs as of September 1, 2004). We have also changed the dates in the
table to reflect compliance dates for these two fuel types. We believe
that the practical effect of adding a second fuel type for Arizona CBG
is small, although we note that for states in PADD 5 this changes one
fuel type (CBG) into two fuel types (summer and non-summer CBG) for
consideration of approval to their SIPs for purposes of addressing
local air quality issues.
Comment: State RVP programs that do not provide a 1.0 psi RVP
waiver for ethanol-blended gasoline should be listed as separate
programs. Two state fuels programs (western Pennsylvania and El Paso,
Texas) do not provide a 1.0 psi RVP waiver for ethanol-blended gasoline
in their RVP fuel programs. Two commenters stated that these fuel
programs should not be listed as separate fuel types. Also, one
commenter stated that EPA made no mention of RVP waivers for 10%
ethanol-gasoline blends and the impact these may have on the list of
fuel types.
Response: As explained above, we are not listing the 7.8 psi RVP
western Pennsylvania program and 7.0 psi RVP El Paso, Texas programs
that do not allow the 1.0 psi waiver for ethanol blended gasoline as
two separate fuel types. As also explained in the preamble, we believe
that listing fuel types according to whether they do or do not allow a
1.0 psi ethanol waiver would run contrary to Congress's intention to
improve fuel fungibility through the boutique fuel list. As further
explained in the preamble, because the PADD restriction exception
allowed for 7.0 psi RVP fuel programs makes no mention as to whether
new 7.0 psi RVP fuel programs should be permitted with or without the
1.0 psi ethanol waiver, we do not believe that Congress intended use of
this criteria for listing fuel types.
Comment: ``Historical'' 9.0 psi RVP programs should be on the list.
In 1989 we set nationwide RVP standards for gasoline sold during the
summer, in two phases. Phase I applied to 1990 and 1991, and Phase II
applied to 1992 and later years. Generally, we set the RVP level at
10.5 psi and 9.0 psi in the northern states, under Phase I and II,
respectively.\24\ Between 1989 and 1992, some northeastern states also
adopted 9.0 psi RVP programs, which we approved into their SIPs under
section 211(c)(4)(C). These 9.0 psi RVP programs remain in the SIPs of
several northeastern states. Two commenters supported our decision to
not include these 9.0 psi RVP fuel programs on the list. However, one
commenter suggested that we should include these programs on the
boutique fuels list and that failure to include them would not fulfill
[[Page 78197]]
Congressional intent. This commenter also stated that listing the 9.0
psi RVP fuel type and then subsequently removing the 9.0 psi RVP fuel
type would provide ``room'' on the list for the adoption of another
state fuel program for the northeastern states, or more specifically
states in PADD 1.
---------------------------------------------------------------------------
\24\ See 40 CFR 80.27(a)(1) and (2).
---------------------------------------------------------------------------
Response: We do not believe that the 9.0 psi RVP fuel type should
be included on the list. We proposed not to list the 9.0 psi RVP
programs as a way of reconciling the somewhat conflicting provisions
requiring us to list fuels and to remove fuels that were identical to
federal fuel programs. At proposal, we explained that we were obligated
to publish a list based on the total number of fuels approved into SIPs
under section 211(c)(4)(C) as of September 1, 2004, and also required
to remove a fuel that is ``identical to a Federal fuel formulation
implemented by the Administrator'' from the list. We further explained
that reading these provisions literally would require us to
simultaneously include 9.0 psi RVP on the list we are publishing today
and at the same time to remove it from the list. We concluded that
although several of these 9.0 psi RVP programs remain in the SIPs of
some northeastern states, Congress would not have intended such an
illogical approach, primarily because the 9.0 psi RVP program could not
be viewed as contributing to the proliferation of 'fuel islands.'' \25\
We continue to believe that we should not list 9.0 psi RVP as a fuel
type on the list, and in today's notice we are not including 9.0 psi
RVP as a fuel type on the list.
---------------------------------------------------------------------------
\25\ See 71 FR 32534 for a more detailed discussion of our
treatment of 9.0 RVP fuel programs.
---------------------------------------------------------------------------
We also do not believe that listing and then removing the 9.0 psi
RVP fuel type would provide for the adoption of a new state fuel type
for states in PADD 1. As mentioned previously, the PADD restriction
strongly constrains our future approval of ``boutique fuels'' because
states are limited to the types of fuels already approved into SIPs in
their PADDs, with the exception of the 7.0 psi RVP fuel type. Adding a
9.0 psi RVP fuel type to the list and then removing it would not change
this. States in PADD 1 would still be limited to adopting a fuel
already in a SIP in their PADD or a 7.0 psi RVP fuel. Therefore, we
have not included 9.0 psi RVP programs in the boutique fuels list
published today.
Comment: CARB fuels should be included on the Boutique Fuels list.
Some commenters indicated that the CARB reformulated gasoline (RFG),
and diesel programs should be included on the list. One commenter
believed that the list should include CARB RFG and diesel programs, and
questioned our decision not to list these programs. Other commenters
stated that although CARB RFG and diesel programs have not been
approved into a SIP under section 211(c)(4)(C), they should be included
on the list because they present the same logistical issues as boutique
fuel programs. Another commenter urged us to inform Congress of our
lack of authority to address CARB RFG and diesel programs under section
211(c)(4)(C) if we believed we lacked such authority.
Response: CAA section 211(c)(4)(C)(v)(II) requires us to determine
and publish the ``total number of fuels'' approved into all SIPs, under
section 211(c)(4) as of September 1, 2004. We believe this provision
specifically refers to state fuels programs ``approved'' into SIPs
under section 211(c)(4)(C). With such specific language, we do not
believe that Congress intended us to include CARB fuel programs that
are approved into a SIP under section110, based upon the ``allowance''
from preemption provided under section 211(c)(4)(B), instead of
``approved'' under section 211(c)(4)(C). We also note that under
limited circumstances, such as when there is room on the list, adoption
by a state in PADD 5 of CARB RFG or diesel fuels programs would not
violate the PADD restriction. See our discussion in Section 1.D, above.
Such adoption and approval, however, would remain subject to the other
restrictions on our authority to approve state fuels.
Comment: State Oxygenated fuels should be included on the Boutique
Fuels list Some commenters indicated that Congress intended that EPA
should include state oxygenated fuels programs on the boutique fuels
list, even though they acknowledged that these programs are not
approved into SIPs under section 211(c)(4)(C). Similarly, a commenter
noted that Nevada's oxygenated fuels program contains an ethanol
mandate that should be included on the list. This commenter also noted
that the Nevada program includes a 9.0 psi RVP cap in winter.
Response: Section 211(c)(4)(C)(v)(II) requires us to determine the
total number of fuels we have approved into all SIPs, under section
211(c)(4)(C), as of September 1, 2004 and publish a list of such fuels.
We believe this provision specifically refers to state fuels programs
``approved'' into SIPs under section 211(c)(4)(C). With such specific
language, we do not believe that Congress intended us to include
oxygenated fuels programs that were not approved into SIPs under
section 211(c)(4)(C), but, rather, were approved under sections 110 and
211(m). Since the Nevada ethanol requirement is part of an oxygenated
fuels program that we approved under sections 110 and 211(m), we do not
believe it should be included on the boutique fuels list we are
adopting today. Also, since there are no federal wintertime RVP
controls, the Nevada wintertime RVP cap is not preempted and is not
approved into the SIP under section 211(c)(4)(C), and we do not believe
it should be included on the boutique fuels list we are adopting today.
Comment: State biofuel mandates should be included on the Boutique
Fuels list. Some commenters stated that the list should include fuels
required by state biofuel mandates.
Response: Section 211(c)(4)(C)(v)(II) requires us to determine the
total number of fuels we have approved into all SIPs, under section
211(c)(4)(C), as of September 1, 2004. We believe this provision is
very specific in referring to state fuels programs ``approved'' into
SIPs under section 211(c)(4)(C). Since the ethanol and biofuel mandates
(including biodiesel) that the commenters reference were not approved
into a SIP under section 211(c)(4)(C) as of September 1, 2004, they
should not be placed on the list.
C. Addition and Removal of a Fuel Type From the List
Comment: Two commenters noted that beginning in 2007 there should
be an opportunity to consolidate the boutique fuel list by eliminating
the unique gasoline sulfur requirements for Atlanta, Georgia. According
to the commenters, beginning in 2007 early sulfur credits under the
Tier 2 gasoline sulfur program will have been exhausted and Atlanta and
other parts of the country would be receiving the same gasoline with
regard to sulfur content. The Atlanta program would simply be listed as
one of the states using the 7.0 psi RVP fuel type.
Response: As discussed above, we must remove a fuel from the list
when the fuel type is ``identical to a Federal fuel formulation
implemented by the Administrator.''\26\ Considering removal of the
Atlanta program from the list, at this stage, however, would be
premature.
---------------------------------------------------------------------------
\26\ See CAA section 211(c)(4)(C)(v)(III), 42 U.S.C.
7545(c)(4)(C)(v)(III)
---------------------------------------------------------------------------
Comment: One commenter recommended that EPA clarify the procedure
for adding a fuel to the list. The commenter inquired as to whether EPA
would approve either a new fuel
[[Page 78198]]
only for use in PADD 1 or one that could be used in any other PADD
subsequent to removal of a fuel type such as the ``summer 7.0 psi RVP
gasoline with sulfur provisions,'' which the commenter noted is
currently in use only in PADD 1. The commenter also inquired as to
whether a state in PADD 3 could substitute ``summer 7.0 psi RVP
gasoline with sulfur provisions'' fuel type with another new fuel type.
The commenter further inquired as to whether such a substitution would
violate the PADD restriction in section 211(c)(4)(C)(v)(V).
Response: In sections I.B. and C. of the preamble, we discussed how
we may remove a fuel type from the list, and approve a ``new fuel''
into a SIP under EPAct. In section I.D. of the preamble we also
discussed how the PADD restriction in section 211(c)(4)(C)(v)(V) places
a strong constraint on our future approval of ``boutique fuels'' by
effectively limiting state fuels to both the types of fuels currently
in existence, and to the PADDs in which they are currently found, with
the exception of 7.0 psi RVP fuel type. We expect that if the ``summer
7.0 psi RVP gasoline with sulfur provisions'' fuel type in PADD 1 is
removed from the list, the only fuels types we may approve into a SIP
in PADD 3 would be fuel types that are approved into SIPs in PADD 3 as
of the date of our consideration of a state's request to approve a fuel
type.
D. Consultation with DOE
Comment: One commenter stated that EPA's consultations with DOE
should be part of the public record.
Response: We agree with this comment. We did consult with DOE Staff
as part of the development of the June 6, 2006 notice and the draft
boutique fuels list it announced. We have docketed DOE's concurrence
with the approach proposed. We have also consulted with DOE staff on
developing today's notice and the list it adopts and we have docketed
DOE's concurrence with this final notice.
E. General Comments
Comment: EPA should explain how the list will be affected by a
request from a state governor not to allow the 1.0 psi ethanol waiver
as permitted by section 211(h)(5) of EPAct.
Response: As mentioned earlier in the preamble, our approval of
state fuel programs with or without a 1.0 psi waiver for ethanol
blended gasoline does not have any impact on federal RVP programs,
which are authorized by section 211(h). For areas covered by federal
RVP programs, section 211(h)(4) of the Clean Air Act allows a 1.0 psi
RVP waiver for gasoline blends containing 10% ethanol. Section
211(h)(5) also permits the governor of a state to petition EPA to
remove the 1.0 psi RVP waiver if the state provides documentation that
the 1.0 psi ethanol waiver increases emissions. The EPA's
interpretation of section 211(c)(4)(C) above, has no impact on such
federal RVP programs.
Comment: EPA should provide a more nuanced analysis of fuel
categories that considers how fuel properties fall into a hierarchy of
substitutability that affects supply flexibility, both from a
perspective of vehicle impacts as well as legal constraints. For
example, a state requiring gasoline with a 7.8 RVP limit also can
legally allow gasoline with a 7.2 or 7.0 RVP limit.
Response: Fuels that meet more stringent standards than those
required by a SIP may be supplied as compliant fuel in any SIP covered
area. Evaluating SIP fuels from a perspective of vehicle impacts is
outside the scope of today's Notice.
Comment: EPA approval of state fuels should include supply impacts
of all unique fuels, such as California fuels, state winter oxygenate
fuels, state-mandated biofuels, federal RFG, and federal RVP-controlled
fuels. Several commenters recommended that, when reviewing the supply
impacts of a proposed SIP fuel, EPA consider all unique fuels, such as
California fuels, state winter oxygenate fuels, state-mandated
biofuels, federal RFG, and federal RVP-controlled fuels, even if these
fuels are not on the boutique fuel list that we are publishing in
today's notice. Commenters also urged EPA to include these unique fuel
requirements in the Sec. 1509 Fuel Harmonization Study that EPA and
DOE are currently preparing for Congress.
Response: As explained above, before approving a ``new fuel'' into
a SIP, where there is ``room'' on the list, EPA is required to make a
finding, after consultation with the DOE, on the impact of the ``new
fuel'' on fuel supply, distribution, and producibility. In reviewing
the supply implications of a ``new fuel,'' EPA agrees that it is
reasonable to consider all fuels in the area although such fuels are
not on the boutique fuels list. The supply implications of a ``new
fuel'' can best be understood by evaluating them in the context of the
other fuel requirements applicable to fuel distributed in that area.
Therefore, we believe it is appropriate to consider ``unlisted'' fuels
such as biofuels or oxygenated gasoline when determining whether or not
a ``new fuel'' will present supply or distribution interruptions or
will have a significant adverse impact on fuel producibility in the
affected or contiguous areas. We also recognize that including these
``unlisted'' fuels in the EPAct section1509 fuel harmonization study is
appropriate.
Comment: One commenter said that EPA should allow more time for
states to demonstrate attainment with the 8 hour ozone NAAQS and the
PM2.5 NAAQS. Allowing states more time will enable them to realize the
benefits of federal fuels programs that have not yet been fully
implemented (low sulfur gasoline and ultra-low sulfur diesel), and
lessen the pressure on individual states to add motor fuel controls to
their SIPs to demonstrate attainment.
Response: Determining timelines for states to demonstrate
attainment with the various NAAQS is outside the scope of today's
Notice.
III. Publication of the Boutique Fuel List
A list of the eight (8) fuel types approved into SIPs under section
211(c)(4)(C) as of September 1, 2004, the states, and the PADD they are
used in is set forth in the following Table. Please note that this
table varies from the draft table for the fuel type interpretation
published in the June 6, 2006 notice, which contained seven fuel types.
Specifically, we have divided the Arizona CBG program into summer and
non-summer. The Arizona summer CBG program includes the 7.0 psi RVP
requirement that appeared on the draft table, but covers all the CBG
requirements applicable between May 1 and September 30.
Total Number of Fuels Approved in State Implementation Plans (SIPs)
Under CAA Section 211(c)(4)(C) as of September 1, 2004
------------------------------------------------------------------------
Type of fuel control PADD Region-state
------------------------------------------------------------------------
RVP of 7.8 psi 1.................... 1 1-ME (May 1-Sept.15)*
1 3-PA
[[Page 78199]]
2 5-IN
2 5-MI
3 6-TX (May 1-Oct. 1)*
RVP of 7.2 psi...................... 2 5-IL
RVP of 7.0 psi...................... 2 7-KS
2 7-MO
3 4-AL
3 6-TX
RVP of 7.0 with gasoline sulfur 1 4-GA
provisions.
Low Emission Diesel................. 3 6-TX
Cleaner Burning Gasoline (Summer)... 5 9-AZ (May 1-Sept 30)
Cleaner Burning Gasoline (non- 5 9-AZ (Oct 1-Apr 30)
Summer).
Winter Gasoline (aromatics & sulfur) 5 9-NV
------------------------------------------------------------------------
* Dates listed in parentheses refer to summer gasoline programs with
different RVP control periods from the federal RVP control period,
which runs from June 1 through September 15.
Dated: December 21, 2006.
Stephen L. Johnson,
Administrator.
[FR Doc. E6-22313 Filed 12-27-06; 8:45 am]
BILLING CODE 6560-50-P
