[Federal Register Volume 60, Number 7 (Wednesday, January 11, 1995)]
[Rules and Regulations]
[Pages 2693-2696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-420]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80

[AMS-FRL-5134-5]


Regulation of Fuels and Fuel Additives: Extension of the 
Reformulated Gasoline Program to Moderate Ozone Nonattainment Areas in 
Wisconsin

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: Under section 211(k)(6) of the Clean Air Act, as amended 
(Act), the Administrator of EPA shall apply the prohibition against the 
sale of gasoline that has not been controlled under EPA's reformulated 
gasoline (RFG) regulations in an ozone nonattainment area upon the 
application of the governor of the state in which the nonattainment 
area is located. This action extends the prohibition set forth in 
section 211(k)(5) of the Act to three moderate ozone non-attainment 
areas in Wisconsin, including those counties in the federal RFG 
program. In Phase I beginning on January 1, 1995, reformulated gasoline 
will achieve a 15 to 17 percent reduction in both ozone-forming 
volatile organic compound (VOC) emissions and toxics emissions from 
motor vehicles. In Phase II beginning on January 1, 2000, the program 
will achieve a 25 to 29 percent VOC reduction, a 20 to 22 percent 
reduction in toxics emissions, and a 5 to 7 percent nitrogen oxide 
(NO<INF>X) reduction.

EFFECTIVE DATES: This action will be effective on March 13, 1995 unless 
notice is received by February 10, 1995 that adverse or critical 
comments will be submitted or that an opportunity to submit such 
comments at a public hearing is requested.
    If such comments or a request for a public hearing are received by 
the Agency, then EPA will publish a subsequent Federal Register notice 
withdrawing this action and will issue a notice of proposed rulemaking.

ADDRESSES: Interested parties may submit written comments (in 
duplicate, if possible) to Public Docket No. A-94-46, at Air Docket 
Section, U.S. Environmental Protection Agency, Waterside Mall, Room M-
1500, 401 M Street SW., Washington, DC 20460. The Agency requests that 
commenters also send a copy of any comments to Joann Jackson Stephens 
at U.S. EPA (RDSD-12), Regulation Development and Support Division, 
2565 Plymouth Road, Ann Arbor, MI 48105.
    Other materials relevant to the RFG rulemaking, and hence today's 
action, are contained in Public Docket Nos. A-91-02, A-92-12, A-93-49, 
and A-94-30. These dockets are also located in Waterside Mall at the 
above listed address. The dockets may be inspected from 8:00 a.m. until 
4:00 p.m. Monday through Friday. A reasonable fee may be charged by EPA 
for copying docket materials.

FOR FURTHER INFORMATION CONTACT: Joann Jackson Stephens, Telephone: 
(313) 668-4276.
    To request copies of this action contact Delores Frank, U.S. EPA 
(RDSD-12), Regulation Development and Support Division, 2565 Plymouth 
Road, Ann Arbor, MI 48105. Telephone: (313) 668-4295.

SUPPLEMENTARY INFORMATION: A copy of this action is available on the 
EPA's Office of Air Quality Planning and Standards (OAQPS) Technology 
Transfer Network Bulletin Board System (TTNBBS). The service is free of 
charge, except for the cost of the phone call. The TTNBBS can be 
accessed with a dial-in phone line and a high-speed modem per the 
following information:

TTN BBS: 919-541-5742
(1200-14400 bps, no parity, 8 data bits, 1 stop bit),
Voice Help-line: 919-541-5384,
Accessible via Internet: TELNETttnbbs.rtpnc.epa.gov,
Off-line: Mondays from 8:00 AM to 12:00 Noon ET

    When first signing on, the user will be required to answer some 
basic informational questions for registration purposes. After 
completing the registration process, proceed through the following 
series of menus:

<T> GATEWAY TO TTN TECHNICAL AREAS (Bulletin Boards)
<M> OMS
<K> Rulemaking and Reporting
<3> Fuels
<9> Reformulated gasoline

A list of ZIP files will be shown, all of which are related to the RFG 
rulemaking process. To download any file, type the instructions below 
and transfer according to the appropriate software on your computer:

<D>ownload, <P>rotocol, <E>xamine, <N>ew, <L>ist, or <H>elp
Selection or <CR> to exit: D filename.zip

    You will be given a list of transfer protocols from which you must 
choose one that matches with the terminal software on your own 
computer. The software should then be opened and directed to receive 
the file using the same protocol. Programs and instructions for de-
archiving compressed files can be found via

[[Page 2694]]

<S>ystems Utilities from the top menu, under <A>rchivers/de-archivers. 
After getting the files you want onto your computer, you can quit the 
TTN BBS with the <G>oodbye command. Please note that due to differences 
between the software used to develop the document and the software into 
which the document may be downloaded, changes in format, page length, 
etc. may occur.

I. Background

    As part of the Clean Air Act Amendments of 1990, Congress added a 
new subsection (k) to section 211 of the Clean Air Act. Subsection (k) 
prohibits the sale of gasoline that EPA has not certified as 
reformulated in the nine worst ozone nonattainment areas beginning 
January 1, 1995. EPA published final regulations for the RFG program on 
February 16, 1994 and on August 2, 1994. See 59 FR 7716 and 59 FR 
39258. Corrections and clarifications to the final RFG regulations were 
published July 20, 1994. See 59 FR 36944.
    Section 211(k)(10)(D) defines the areas covered by the RFG program 
as the nine ozone nonattainment areas having a 1980 population in 
excess of 250,000 and having the highest ozone design values during the 
period 1987 through 1989. Applying those criteria, EPA has determined 
the nine covered areas to be the metropolitan areas including Los 
Angeles, Houston, New York City, Baltimore, Chicago, San Diego, 
Philadelphia, Hartford and Milwaukee. Under section 211(k)(10)(D), any 
area reclassified as a severe ozone nonattainment area under section 
181(b) is also to be included in the RFG program.
    Any other ozone nonattainment area may be included in the program 
at the request of the Governor of the state in which the area is 
located. Section 211(k)(6)(A) provides that upon the application of a 
Governor, EPA shall apply the prohibition against the retail sale of 
conventional gasoline (gasoline EPA has not certified as reformulated) 
in any area requested by the Governor which has been classified under 
subpart 2 of Part D of Title I of the Act as a Marginal, Moderate, 
Serious or Severe ozone nonattainment area.\1\ Subparagraph 
211(k)(6)(A) further provides that EPA is to apply the prohibition at 
the retail level as of the date the Administrator ``deems appropriate, 
not later than January 1, 1995, or 1 year after such application is 
received, whichever is later.'' In some cases the effective date may be 
extended for such an area as provided in section 211(k)(6)(B) based on 
a determination by EPA that there is ``insufficient domestic capacity 
to produce'' reformulated gasoline. Finally, EPA is to publish a 
governor's application in the Federal Register. To date, EPA has 
received and published applications from the Mayor of the District of 
Columbia and the Governors of Connecticut, Delaware, Maine, Maryland, 
Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode 
Island, Vermont, Virginia, Texas, and Kentucky. Although Vermont has 
requested to opt-in to the program, states without ozone nonattainment 
areas, such as Vermont, can not do so.
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    \1\ EPA promulgated such designations pursuant to Section 
107(d)(4) of the Act (56 FR 56694; November 6, 1991).
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II. The Governor's Request

    EPA received an application from the Honorable Tommy G. Thompson, 
Governor of the state of Wisconsin, for three moderate ozone non-
attainment areas to be included in the RFG program. Governor Thompson 
later clarified his request in reference to implementation dates with 
the submission of a second letter of application. Both letters are set 
out in full below.

A. Initial Letter From Wisconsin's Governor

[State of Wisconsin letterhead]

April 6, 1994.
Carol Browner,
USEPA Administrator,
USEPA Headquarters,
401 M Street, SW (101),
Washington, DC 20460

    Dear Ms. Browner: The purpose of this letter is to request that 
you extend the requirement for reformulated gasoline to the three 
moderate ozone nonattainment areas in Wisconsin. As you know, 
Section 211(k)(6) of the Clean Air Act gives the Governor the 
authority to opt into the reformulated gasoline program for ozone 
nonattainment areas that are not otherwise required to use 
reformulated gasoline. I am exercising the opt-in provision of 
Section 211(k)(6) for the three moderate ozone nonattainment areas 
in Wisconsin; Kewaunee, Manitowoc and Sheboygan Counties.
    Reformulated Gasoline is a significant component of our 15 
percent VOC emission reduction plans for our moderate nonattainment 
areas, supplying about \1/2\ of the necessary emission reductions. 
After evaluating the public input to our 15 percent VOC plan, I am 
convinced that reformulated gasoline is critical to the success of 
the 15 percent plan in our moderate ozone nonattainment areas.
    Thank you for considering my request. I am looking forward to 
the successful implementation of our 15 percent emission reduction 
plan and a good start to achieving our goals of attainment of the 
ozone air quality standard in Eastern Wisconsin.
      Sincerely,
Tommy G. Thompson,
Governor.

B. Second Letter From Wisconsin's Governor

[State of Wisconsin letterhead]

August 2, 1994.
Carol Browner,
USEPA Administrator,
USEPA Headquarters,
401 M Street, SW (101),
Washington, DC 20460

    Dear Ms. Browner: In April of this year I requested that you 
extend the federal reformulated gasoline program to the three 
Wisconsin moderate ozone nonattainment counties of Sheboygan, 
Manitowoc, and Kewaunee. Your staff subsequently notified the state 
of the need to clarify the requested effective date for the program 
within those counties. I understand the program in our six severe 
ozone counties automatically commences January 1, 1995 based on 
federal regulation.
    Given the summer ozone air quality rationale of the program, I 
request that the three county opt-in become effective for gasoline 
blended to meet summer season requirements for 1995. Based on staff 
meetings with the gasoline refining and wholesale/retail 
distribution industry, I recommend a June 1, 1995 retail level 
compliance date. The slight start-up delay for the moderate counties 
will provide suppliers time to respond to the recently altered 
market structure.
    Thank you for your attention in this regard. I hope this overall 
program will significantly affect air quality improvement in eastern 
Wisconsin.
      Sincerely,
Tommy G. Thompson,
Governor.

cc: Don Theiler, Air Management, WI-DNR,
  Richard Rykowski, Motor Vehicle Emission Lab, USEPA, Ann Arbor, MI 
48105

III. Action

    Pursuant to the governor's letter and the provisions of section 
211(k)(6), the prohibitions of subsection 211(k)(5) will be applied to 
the Wisconsin moderate <SUP>2 ozone non-attainment areas of Kewaunee, 
Manitowoc, and Sheboygan counties beginning June 1, 1995. As of that 
date they will be treated as covered areas for all purposes of the 
federal RFG program.
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    \2\ See 56 FR 56764 (November 6, 1991); 57 FR 56762, 56778 
(November 30, 1992); and 40 CFR 81.350.
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    The application of the prohibitions of Section 211(k)(5) to the 
Wisconsin moderate ozone nonattainment areas at the retail level could 
take effect no later than August 2, 1995 under section 211(k)(6)(A) 
which stipulates that the effective program date must be no ``later

[[Page 2695]]

than January 1, 1995 or 1 year after such application is received, 
whichever is later''. EPA considers the date of the second letter from 
the Governor as the effective date of the application, as that letter 
first expresses when Wisconsin would like the program to start and 
clarifies the Governor's original letter. Additionally, EPA expects 
there to be sufficient domestic supply of RFG and therefore has no 
current reason to delay implementation of the program in Wisconsin 
beyond August 2, 1995.
    For those nonattainment areas in Wisconsin, EPA could establish the 
start of the RFG program at the retail level anytime between January 1, 
1995 and August 2, 1995. However, the Agency believes that any 
effective date for the retail level prior to June 1, 1995 is 
inappropriate for the following reasons. First, an effective date of 
January 1, 1995 for the RFG program in Wisconsin would not provide 
sufficient notice to relevant parties. In addition, implementation of 
the RFG program in Wisconsin later than January 1, 1995 but earlier 
than June 1, 1995 would require that winter RFG be sold at the retail 
level for a brief period before summer VOC-control requirements would 
become effective. As stated in the Governor's letter, Wisconsin 
officials are primarily concerned with the benefits derived from VOC-
controlled RFG which is required June 1, 1995. Thus, EPA believes that 
an effective date of June 1, 1995 is suitable for Wisconsin since it is 
consistent with the beginning of the RFG summer VOC control season and 
with the request in Governor Thompson's letter.
    Requiring that the RFG program begin at the onset of the VOC-
control season, as requested by Governor Thompson, addresses concerns 
raised by wholesale/retail distributors to Wisconsin officials 
regarding the unwillingness of refiners which normally sell gasoline in 
Wisconsin to supply RFG to a geographic area which is so small and that 
is such a substantial distance from the nearest RFG market. Wisconsin 
officials believe that the June 1 effective date will provide the 
gasoline distribution industry with the necessary lead-time to 
establish storage and cross sales agreements with refiners (other than 
those which already market fuel in the area) willing to sell RFG in the 
three county moderate ozone nonattainment area. Such storage and cross 
sales agreements will facilitate the sale of reformulated gasoline, 
which will aid Wisconsin in meeting its statutory 15 percent reduction 
requirements. In addition, as expressed in the Governor's letter, the 
main interest in opting into this program is based on a belief that the 
state air quality would most benefit from the summer season 
reformulated gasoline.
    RFG VOC-control compliance at the terminal in Wisconsin should be 
consistent with the final regulatory requirements for the RFG program. 
Thus, compliance by parties upstream of retail outlets, in Wisconsin, 
will be effective May 1, 1995. As in the federal volatility program, 
such an effective date for upstream parties such as terminals is 
necessary to ensure compliance at the retail level by requiring that 
RFG be in the pipeline (upstream) prior to June.

IV. Public Participation and Effective Date

    The Agency is publishing this action as a direct final rule because 
it views the addition of the three ozone nonattainment areas in 
Wisconsin to the RFG program as non-controversial and anticipates no 
adverse or critical comments. Representatives from the state of 
Wisconsin have met with refiners that supply the majority of the 
state's fuel, including those refiners willing to supply RFG to the 
moderate ozone nonattainment areas, and the parties apparently agree 
that the on-set of the VOC-control season is an appropriate time to 
begin implementation of the RFG program. Thus, interested parties 
appear to agree on the June 1, 1995 date.
    This action will be effective on March 13, 1995 unless the Agency 
receives notice by February 10, 1995 that adverse or critical comments 
will be submitted, or that a party requests the opportunity to submit 
such oral comments pursuant to section 307(d)(5) of the Clean Air Act, 
as amended. If such notice or comments are received regarding the 
addition of the moderate ozone nonattainment areas in Wisconsin to the 
RFG program, today's action will be withdrawn before the effective date 
by the publication of a subsequent withdrawal notice in the Federal 
Register. In the event that today's direct final rule is withdrawn as a 
result of the submission of adverse or critical comments or a request 
to present such comments at a public hearing, the Agency will issue a 
notice of proposed rulemaking to extend the RFG program to the three 
moderate ozone nonattainment counties in Wisconsin.

V. Statutory Authority

    The statutory authority for the action finalized today is granted 
to EPA by Sections 114, 211(c) and (k) and 301 of the Clean Air Act, as 
amended; 42 U.S.C. 7414, 7545(c) and (k), and 7601.

VI. Administrative Designation

    Pursuant to Executive Order 12866, [58 FR 51,735 (October 4, 1993)] 
the Agency must determine whether the regulatory action is 
``significant'' and therefore subject to OMB review and the 
requirements of the Executive Order. Pursuant to the terms of Executive 
Order 12866, it has been determined that this direct rule is not a 
``significant regulatory action''.

VII. Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (RFA) of 1980 requires federal 
agencies to examine the effects of extending the RFG program to three 
moderate ozone nonattainment areas in Wisconsin and to identify 
significant adverse impacts of federal regulations on a substantial 
number of small entities. Because the RFA does not provide concrete 
definitions of ``small entity,'' ``significant impact,'' or 
``substantial number,'' EPA has established guidelines setting the 
standards to be used in evaluating impacts on small businesses. For 
purposes of the RFG program, a small entity is any business which is 
independently owned and operated and not dominant in its field as 
defined by SBA regulations under section 3 of the Small Business Act.
    The Agency believes that the extension of the RFG program to the 
three ozone nonattainment areas in Wisconsin is unlikely to have a 
significant economic impact on a substantial number of small entities. 
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 
605(b), the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities.

List of Subjects in 40 CFR Part 80

    Environmental protection, Fuel additives, Gasoline, Imports, 
Labeling, Motor vehicle pollution, Penalties, Reporting and 
recordkeeping requirements.

    Dated: December 29, 1994.
Carol M. Browner,
Administrator.

    40 CFR part 80 is amended by making the following revisions:

PART 80--REGULATION OF FUELS AND FUEL ADDITIVES

    1. The authority citation for part 80 continues to read as follows:


    Authority: Sections 114, 211 and 301(a) of the Clean Air Act as 
amended (42 U.S.C. 7414, 7545 and 7601(a)).


    In Sec. 80.70, paragraphs (l) and (l)(1) are added to read as 
follows:

[[Page 2696]]

Sec. 80.70  Covered areas.

* * * * *
    (l) The ozone nonattainment areas listed in this paragraph (l) are 
covered areas beginning on May 1, 1995 at the terminal. No requirements 
under subpart D shall apply to gasoline at a retail outlet or at the 
facilities of a wholesale purchaser/consumer until June 1, 1995. The 
geographic extent of each covered area listed in this paragraph (l) 
shall be the nonattainment boundaries as specified in 40 CFR part 81, 
subpart C:
    (1) The following Wisconsin counties:
    (i) Kewaunee;
    (ii) Manitowoc;
    (iii) Sheboygan.
    (2) [Reserved]

[FR Doc. 95-420 Filed 1-10-95; 8:45 am]
BILLING CODE 6560-50-P