Federal Register / Vol. 61, No. 131 / Monday, July 8, 1996 / Rules and Regulations 35673

that the disclosure will further the

purposes of the Act and this part, or the

Act of June 27, 1960, as amended (16

U.S.C. 469–469c) without risking harm

to the archaeological resource or to the

site in which it is located.

(b) The Federal Land Manager shall

make information available, when the

Governor of any State has submitted to

the Federal Land Manager a written

request for information concerning the

archaeological resources within the

requesting Governor’s state; provided

that the request includes:

(1) The specific archaeological

resource or area about which

information is sought.

(2) The purpose for which the

information is sought; and

(3) The Governor’s written

commitment to adequately protect the

confidentiality of the information.

§ 700.837 Report.

Each Federal Land Manager, when

requested by the Secretary of the

Interior, shall submit such information

as is necessary to enable the Secretary

to comply with section 13 of the Act.

§ 700.839 Permitting procedures for

Navajo Nation lands.

(a) If the lands involved in a permit

application are Indian lands, the

consent of the appropriate Indian tribal

authority or individual Indian

landowner is required by the Act and

the regulations in this subpart.

(b) When Indian tribal lands are

involved in an application for a permit

or a request for extension or

modification of a permit, the consent of

the Indian tribal government must be

obtained. For Indian allotted lands

outside reservation boundaries, consent

from only the individual landowner is

needed. When multiple-owner allotted

lands are involved, consent by more

than 50 percent of the ownership

interest is sufficient. For Indian allotted

lands within reservation boundaries,

consent must be obtained from the

Indian tribal government and the

individual landowner(s).

(c) The applicant should consult with

the Office concerning procedures for

obtaining consent from the appropriate

Indian tribal authorities and submit the

permit application to the Office that is

responsible for the administration of the

lands in question. The Office shall

ensure that consultation with the

appropriate Indian tribal authority or

individual Indian landowner regarding

terms and conditions of the permit

occurs prior to detailed evaluation of

the application. The Indian tribal

authority or individual Indian

landowner shall have 30 days from the

date of receipt of the consultation

request from the Office to respond to

such request. Failure of the Indian tribal

authority or individual Indian

landowner to respond timely to the

consultation request shall be deemed to

be consent to the request. Permits shall

include terms and conditions requested

by the Indian tribe or Indian landowner

pursuant to § 700.817 of this part.

(d) The issuance of a permit under

this part does not remove the

requirement for any other permit

required by Indian tribal law.

Dated: June 25, 1996.

Christopher J. Bavasi,

Executive Director, Office of Navajo and Hopi

Indian Relocation.

[FR Doc. 96–16650 Filed 7–5–96; 8:45 am]

BILLING CODE 6820–BB–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 80

[FRL–5528–6]

General Procedures to Opt Out of the

Reformulated Gasoline Requirements;

Removal of Jefferson County, Albany

and Buffalo, New York; Twenty-eight

Counties in Pennsylvania; and

Hancock and Waldo Counties in Maine

From the Reformulated Gasoline

Program

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: This final rule establishes the

criteria and general procedures for states

to opt out of the federal reformulated

gasoline program for ozone nonattainment areas where the state had

previously voluntarily opted into the

program. This action describes the

petition process a state must follow to

be removed from the program, the

criteria used by EPA to approve a

petition, and the transition period

before the opt-out becomes effective.

This final rule also removes Jefferson

County and the Albany and Buffalo

areas in New York; twenty-eight

counties in Pennsylvania; and Hancock

and Waldo counties in Maine from the

list of covered areas identified in § 80.70

of the reformulated gasoline rule.

Today’s action only applies to opt-out

requests submitted by states prior to

December 31, 1997, unless this final

rule is superseded by another rule

which pertains to new criteria and

general procedures for reformulated

gasoline program opt-outs. The Agency

intends to propose and solicit comments

on separate opt-out procedures for

subsequent requests to opt out of the

reformulated gasoline program.

EFFECTIVE DATE: This final rule is

effective August 7, 1996.

FOR FURTHER INFORMATION CONTACT:

Mark Coryell, U.S. Environmental

Protection Agency Office of Air and

Radiation, 401 M Street, SW (6406J),

Washington, DC 20460, (202) 233–9014.

Also, contact Christine Hawk at (202)

233–9672 or Pat Childers at (202) 233–

9415.

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially regulated by this

action are those which produce, supply

or distribute motor gasoline. Regulated

categories and entities include:

Category Examples of regulated entities

Industry ....... Petroleum refiners, motor gasoline distributors and retailers.

State governments.State departments of environmental protection.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

regulated by this action. This table lists

the types of entities that EPA is now

aware could potentially be regulated by

this action. Other types of entities not

listed in the table could also be

regulated. To determine whether your

business is regulated by this action, you

should carefully examine the list of

areas covered by the reformulated

gasoline program in § 80.70 of title 40 of

the Code of Federal Regulations. If you

have questions regarding the

applicability of this action to a

particular entity, consult the person

listed in the preceding FOR FURTHER

INFORMATION CONTACT section.

A copy of this action is available on

the OAQPS Technology Transfer

Network Bulletin Board System

(TTNBBS). The TTNBBS can be

accessed with a dial-in phone line and

a high-speed modem (PH# 919–541–

5742). The parity of your modem should

be set to none, the data bits to 8, and

the stop bits to 1. Either a 1200, 2400,

9600, 24.4K, or 48.8K baud modem

should be used. 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:

(M) OMS.

(K) Rulemaking and Reporting.

(3) Fuels.

(9) Reformulated gasoline.
35674 Federal Register / Vol. 61, No. 131 / Monday, July 8, 1996 / Rules and Regulations

A list of ZIP files will be shown, all

of which are related to the reformulated

gasoline rulemaking process. Today’s

action will be in the form of a ZIP file

and can be identified by the following

title: OPTOUT.ZIP. To download this

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

<S>ystems Utilities from the top menu,

under <A>rchivers/de-archivers. 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.

Extended Summary

Based upon public comments that

were solicited in the Notice of Proposed

Rulemaking (60 FR 31269) published

June 14, 1995, EPA has made the

following decisions that are contained

in this final rule.

This final rule provides the Agency’s

general rules concerning criteria and

procedures for states to opt out certain

non-attainment areas from the federal

reformulated gasoline (RFG) program.

This action applies to non-attainment

areas where the state voluntarily opted

into the program, and subsequently

decides to withdraw from the

reformulated gasoline program, an

action referred to as ‘‘opt-out.’’ This rule

describes the process a state must follow

to petition for removal from the

program, the criteria used by EPA to

evaluate a request, and the transition

period before the opt-out becomes

effective.

This final rule authorizes the EPA’s

Administrator to approve a petition to

opt out all or a portion of an opt-in area.

The final rule requires that the governor

submit the opt-out petition, or the

governor’s authorized representative. It

must include specific information on

how, if at all, reformulated gasoline has

been relied upon by the state in state or

local implementation plans, or revisions

to such plans, both pending or already

approved.

This final rule specifies the effective

date that an area will be removed from

the list of covered areas defined in

§ 80.70 of the reformulated gasoline

rule. If reformulated gasoline was

included as a control measure in an

approved State Implementation Plan

(e.g. to demonstrate attainment or

maintenance), then the opt-out would

not become effective until 90 days from

the effective date for Agency approval of

a revision to the state plan removing

reformulated gasoline as a control. If

reformulated gasoline was relied upon

in a plan pending Agency approval,

then the opt-out would become effective

90 days from the date EPA provides

written notification to the state that the

petition has been approved. If the state

does not have a plan or did not rely on

reformulated gasoline in a pending plan,

then the effective date is the same as for

pending plans described above. The

Agency would also publish a Federal

Register notice announcing the approval

of the petition and the effective date for

the opt-out.

This final rule also removes Jefferson

County and the Albany and Buffalo

areas in New York (a total of nine

counties in New York); the twenty-eight

opt-in counties in Pennsylvania; and

Hancock and Waldo counties in Maine

from the list of covered areas defined by

§ 80.70 of the reformulated gasoline rule

per the request of the States of New

York, Pennsylvania and Maine. This is

based on requests from the Governors of

New York, Pennsylvania and Maine that

these areas opt out of this federal

program. In a separate action signed by

the EPA Administrator on December 29,

1994, EPA stayed the application of the

reformulated gasoline regulations in

these areas effective January 1, 1995

until July 1, 1995. 60 FR 2696 (January

11, 1995). EPA proposed to extend this

stay until final action was taken on the

opt-out requests. 60 FR 31269 (June 14,

1995). In a separate action signed by the

EPA Administrator the Agency

extended the stay on June 30, 1995. 60

FR 35488 (July 10, 1995).

The regulations adopted in today’s

action for processing opt-outs from the

reformulated gasoline requirements

would be applicable for opt-out

petitions received or under Agency

consideration beginning June 21, 1996,

until December 31, 1997, unless

superseded by a subsequent rulemaking.

I. General Procedures for EPA’s

Processing of Future Opt-Out Requests

A. Background

The federal reformulated gasoline

(RFG) program is designed to reduce

ozone levels in the largest metropolitan

areas of the U.S. with the worst ground

level ozone problems by reducing

vehicle emissions of the ozone

precursors, specifically volatile organic

compounds (VOC), through fuel

reformulation. Reformulated gasoline

also achieves a significant reduction in

air toxics. In Phase II of the program

nitrogen oxides (NOx), another

precursor of ozone, are also reduced.

The 1990 Amendments to the Clean Air

Act requires reformulated gasoline in

the nine largest cities with the highest

levels of ozone. In section 211(k)(6),

Congress provided the opportunity for

states to opt-in to the RFG program for

their other nonattainment areas.

EPA issued final rules establishing

requirements for reformulated gasoline

on December 15, 1993. 59 FR 7716

(February 16, 1994). During the

development of the RFG rule a number

of states inquired as to whether they

would be permitted to opt out of the

RFG program at a future date, or opt out

of certain of the requirements. This was

based on their concern that the air

quality benefits of RFG, given their

specific needs, might not warrant the

cost of the program, specifically

focusing on the more stringent

standards in Phase II of the program

(starting in the year 2000). Such states

wished to retain the flexibility to opt out

of the program. Other states indicated

they viewed RFG as an interim strategy

to help bring their nonattainment areas

into attainment sooner than would

otherwise be the case.

The regulation issued on December

15, 1993 did not include procedures for

opting out of the RFG program because

EPA had not proposed and was not

ready to adopt such procedures.

However, the Agency did indicate that

it intended to propose such procedures

in a separate rule.

B. Statutory Authority

The statutory authority for this rule is

granted to EPA by section 211(c) and (k)

and section 301(a) of the Clean Air Act

as amended, 42 U.S.C. 7545(c) and (k)

and 7601(a). A discussion of EPA’s

statutory authority may be found in the

preamble to the proposal, at 60 FR

31271 (June 14, 1995).

C. General Rulemaking vs. Notice and

Comment Rulemaking for Each Opt-Out

Request

In the NPRM, EPA proposed a general

rule that would apply for all future optout requests. Some industry

representatives and associations

provided opposing comments. Some

commenters argued that under section

307(d) of the Act, EPA must provide

public notice and a comment period for

each opt-out request. They argued that

EPA must conduct rulemaking for each

opt-out request to consider the
Federal Register / Vol. 61, No. 131 / Monday, July 8, 1996 / Rules and Regulations 35675

ramifications of each opt-out request, for

example, on long-term costs to state,

local and tribal governments and private

industry and possible adverse regional

air quality consequences. Other

commenters, however, preferred the

Agency’s proposal to develop general

opt-out procedures rather than conduct

a rulemaking for each state opt-out

request.

EPA does not agree that a separate

rulemaking must be conducted for each

future opt-out request. Through this

rulemaking, EPA is establishing a

petition based process that will address,

on a case by case basis, future

individual state requests to opt out of

the federal RFG program. The

regulations establish clear and objective

criteria for EPA to apply in these future

non-rulemaking, adjudication actions.

These criteria address when a state’s

petition is complete and the appropriate

transition time under the regulations.

This application of regulatory criteria on

a case by case basis to future individual

situations does not require notice and

comment rulemaking, either under

section 307(d) of the Clean Air Act or

the Administrative Procedure Act.

It is not uncommon for the Agency to

establish such a petition based process

within a regulatory structure, in order to

apply the criteria established in a

regulation to a wide variety of

individual cases. The reformulated

gasoline regulations, for example,

include a petition process for approval

of individual baseline, augmentations of

the complex model, exemptions,

alternative test procedures, and the like.

EPA believes that approach is most

appropriate here as well, as it will allow

for expeditious and consistent Agency

action on the individual opt-out

requests presented by states.

EPA believes that the general

procedures adopted here will provide

consistent opt-out decisions. This rule

will also provide greater certainty in the

market than individual rulemakings

could provide. Lastly, this rule will

provide quick approval for opt-out

requests while maintaining a sufficient

transition period to minimize costly

market disruptions.

In certain cases, the affected parties

will be able to comment on the state

action. In those states where the

reformulated gasoline program is

included as a part of an approved state

implementation plan (SIP), affected

parties that are concerned with the

impacts of an opt-out would have the

opportunity to comment on a state’s

revised plan that removes reformulated

gasoline as an air control measure.

The Agency is not taking action today

on the portion of the proposed notice

concerning the question whether the

Agency has the discretion under section

211(k) of the act to allow attainment

areas to opt into this federal program.

EPA has received comments on this

question and is reviewing options that

would permit opt-in opportunities to be

expanded. EPA anticipates announcing

a policy shortly.

D. Applicability

The regulations adopted in today’s

action for processing opt-outs from the

reformulated gasoline requirements

would be applicable for opt-out

petitions received or under Agency

consideration beginning June 21, 1996,

until December 31, 1997, unless

superseded by a subsequent rulemaking.

EPA received comments that

complying with the Phase II

reformulated gasoline requirements

involves significantly greater capital

investment than for the Phase I

requirements. The transition periods set

forth in today’s rule for opting out of

Phase I reformulated gasoline

requirements would be, according to the

comments, grossly inadequate for

industry to recover in a reasonable time

frame investment costs associated with

the Phase II. EPA recognizes these

different circumstances may call for

different opt-out provisions and intends

to propose separate rules for opting out

areas from the Phase II reformulated

gasoline requirements.

E. Petition Process

In the NPRM, EPA proposed that a

state may petition the EPA to opt out of

the reformulated gasoline program.

Under the proposal, a petition would

have to include specific information

about how the program is used in a

State Implementation Plan. If a state did

include the reformulated gasoline

program as a control measure in such

plan or revision submitted to EPA for

approval, then the state would have to

describe if and how it intended to

replace reformulated gasoline as a

control measure. In addition, the state

would need to identify whether it

intended to submit a revision and, if so,

when.

Several commenters raised concerns

about the impacts that approved

petitions would have on air quality,

especially in nonattainment areas, since

reformulated gasoline provides

significant clean air benefits. A fuels

association commented that petitions

should demonstrate that there will be no

unacceptable adverse air quality

impacts to other areas or other states.

Industry representatives commented

that nonattainment areas should not be

permitted to opt out unless the state has

binding commitments to adopt

substitute measures to achieve

attainment. Another commenter

cautioned that a petition should not be

approved if there is adequate showing

that opting out would cause the area to

return to nonatttainment status.

Regarding opportunity for public

consideration, an association remarked

that the petition process should include

a formal comment period.

EPA is committed to ensuring that

areas around the country attain the

National Ambient Air Quality Standards

(NAAQS), including the ozone standard.

EPA recognizes, however, that under the

Clean Air Act the states play a primary

role in attaining the NAAQS, including

choosing those control measures they

prefer to include in its plans to attain

and maintain the NAAQS. Today’s

action maintains the flexibility that

states have in air quality planning by

honoring their right to opt out and

substitute alternative control measures

where the state considers appropriate.

EPA believes that the state should retain

flexibility to revise the SIP by selecting

control measures it desires to include in

its plan as long as it makes the

necessary demonstrations under the

Act.

To begin the opt-out process, this

final rule requires that a Governor, or

his or her authorized representative,

submit an opt-out petition to the

Administrator of the Agency. The optout petition must include information

describing how, if at all, reformulated

gasoline has been relied upon by the

state in its State Implementation Plans,

revisions to such plans, or redesignation

requests, both pending or already

approved. This would include, for

example, attainment as well as

maintenance plans. The petition must

also include a geographic description of

the opt-out area.

In the case where a state has included

reformulated gasoline in a pending plan

submission, the petition must identify

whether the state is withdrawing the

plan and what alternative air quality

control measures, if any, that the state

intends to use to replace RFG. In the

case where a state intends to submit a

revision to an approved plan or to a

pending SIP submission, the petition

must identify this intention as well as

the alternative air quality control

measures that will be substituted for

reformulated gasoline to reach or

maintain compliance with the federal

ozone standard. Furthermore, the

petition must include the status of any

proposed revision to an approved plan

or pending SIP submission and the

projected schedule for the revised plan.

In the event a state does not intend on
35676 Federal Register / Vol. 61, No. 131 / Monday, July 8, 1996 / Rules and Regulations

revising an approved plan or pending

SIP submission, the petition must

include a description why no revision is

considered necessary. A revision may

not be considered necessary, for

instance, if the proposed opt-out area

does not need to rely on reformulated

gasoline to achieve or maintain

attainment.

The purpose of the information

required in the petition is to provide

EPA the assurance that a state has

considered the programmatic effects of

the requested opt-out. For instance, EPA

expects that states will fully consider

the effects that an RFG opt-out would

have on its SIP or 15% VOC rate of

progress plan as well as its overall

ability to attain and maintain the federal

ozone standard. Through this petition

exercise, a state may find that

alternative control measures may not

offer the cost-effectiveness, immediate

benefits, or ancillary benefits such as

toxics reduction that reformulated

gasoline provides. Thus careful

planning is needed by the state since

reductions from other sources may be

much less practicable, depending on the

state’s circumstances. Reformulated

gasoline is one of the most cost-effective

measures for ozone control available

and also yields significant air toxics

benefits. EPA believes that the

information requirement will address

some of the commenters’ concerns that

states consider the effects on air quality

of their decision to opt out, stated

earlier in this section.

After a state submits a petition, the

Agency will review the document to

determine whether it contains all of the

required information. Once the Agency

determines that the petition is complete

with the required elements, EPA will

send a letter to the state approving the

petition and identifying the effective

date of the opt-out. For those instances

where the state does not include federal

RFG in an approved plan, the effective

date shall be 90 days from the date of

the notification to the state. When the

state has included RFG in an approved

plan, the effective date will be 90 days

from the effective date for Agency

approval of a revision to the plan that

removes reformulated gasoline as a

control measure.

F. Transition Period

In the NPRM, EPA proposed to make

the effective date for an opt-out

dependent upon whether or not a state

has an approved plan in place. If

reformulated gasoline was relied upon

as a control measure in an approved

plan, EPA proposed to make the opt-out

effective 30 days after the Agency had

approved an appropriate revision to the

state plan. If reformulated gasoline was

not relied upon in an approved or

pending SIP, SIP revision, or

redesignation request, EPA proposed to

make the opt-out become effective 30

days from receipt of a complete opt-out

petition. If reformulated gasoline was

relied upon as a control measure in a

plan revision that had been submitted to

the Agency but was still pending

Agency approval, and the Agency had

found the plan to be complete and/or

made a protectiveness finding under 40

CFR §§ 51.448 and 93.128, EPA

proposed to make the opt-out effective

120 days from the date a complete

petition is received. When the state had

a pending plan revision that the Agency

had determined complete and/or for

which the Agency had made a

protectiveness finding and the state

decided to withdraw the submission or

indicated to the Agency the state’s

intention to submit a revision, EPA

proposed to make the opt-out effective

30 days from receipt of a complete

petition from the state, as described

above and specified in the proposed

regulatory language.

EPA received numerous comments on

two aspects of the proposal. First, the

majority of the commenters indicated

that the proposed time period between

the approval of an opt-out and the date

the opt-out becomes effective (referred

to in this preamble as the transition

period) is insufficient for industry to

change the supply of gasoline from

reformulated gasoline to conventional

without significant disruption to the

supply infrastructure. Second,

commenters recommended that the optout process should be more orderly,

with the Agency giving expeditious and

clear notification to the public as to

when the opt-out becomes effective.

In response to the comments received

on the timing of opt-outs, EPA is

adopting opt-out provisions that are

modified from the proposal. First,

today’s action provides for a single 90

day transition period. In determining an

appropriate length of time for the

transition period, EPA weighed the need

for industry to plan and implement a

change in gasoline throughout the

distribution system to the retail stations

against the request from states to opt out

in a timely manner. The majority of

commenters indicated that 60 to 90 days

would be adequate for industry to turn

over existing stocks of reformulated

gasoline to conventional gasoline. Also,

based upon comments from state

associations, as well as EPA’s

experience in other opt-outs, states are

concerned that the Agency make a

timely decision on the opt-out and

generally consider a 90-day transition

period reasonable once the opt-out

approval by the Agency has been made.

This action finalizes a single

transition period, not two periods as

proposed. In the NPRM, states with plan

revisions containing RFG pending

before the Agency would be opted out

of the RFG program in 120 days, but a

state could shorten this period to 30

days simply by withdrawing the

pending plan revision or indicating to

EPA the state’s intention to submit a

revision to the pending plan. These two

conditions provide little impediment to

a state to effectively opt out in 30 days.

Therefore, EPA believes that a single

transition period length will simplify an

opt-out and maximize affected parties’s

ability to plan for a smooth transition

from the reformulated gasoline program.

EPA is also modifying the procedure

for initiating the 90 day count for the

transition period. Several commenters

noted, and EPA concurs, that in some

cases the proposed procedures not only

would have created uncertainty

surrounding the transition period start

date, but also would have effectively

shortened the proposed transition

period. In the NPRM, EPA proposed to

make the transition period begin upon

receipt of a complete petition. As

commenters pointed out, this method

would create uncertainty about whether

the petition was complete on the day

that the Agency received the petition

and did not provide a means for

communicating the petition’s approval

or effective date to the regulated

industry.

EPA believes that in those cases

where reformulated gasoline is relied

upon as a control measure in an

approved plan, the procedures for reapproval of the state plan, with notice,

comment, and publication of the

revision, would sufficiently address

commenters’ concerns about clear

notification of Agency action. Therefore,

if RFG is relied upon as a control

measure in an approved plan, the optout would become effective 90 days

after the effective date of the Agency’s

approval of an appropriate revision to

the state plan. Notice of this action

would be published in the Federal

Register. Prior to this notice in the

Federal Register, the state must also

submit a complete petition to opt out of

the reformulated gasoline program.

Where reformulated gasoline is relied

upon as a control measure in a plan

revision pending before the Agency, or

is not relied upon in any plan, the state

must petition the Agency to opt out of

the reformulated gasoline program, and

the opt-out will be effective 90 days

after the Agency notifies the state that

the state’s petition is approved. The
Federal Register / Vol. 61, No. 131 / Monday, July 8, 1996 / Rules and Regulations 35677

Agency will provide written notification

to the state indicating EPA’s approval of

the petition. The 90-day transition clock

will start from the date of the approval

notification sent to the opt-out state. To

facilitate an orderly opt-out process and

minimize any uncertainties that may

result from an opt-out, EPA intends to

quickly review opt-out petitions and

expeditiously notify the public of the

effective date of opt-outs. EPA intends

to make a decision on the state’s

petition within two weeks from receipt

of the petition. EPA will promptly

notify the state and publish a notice in

the Federal Register notifying the

public of the effective date of the optout, thereby giving consistent and

timely information to the affected

parties. The Agency will make every

effort to notify the associations of

affected industries and states after EPA

has approved a state’s opt-out petition.

In addition EPA will announce the optout’s effective date on the OAQPS

Technology Transfer Network Bulletin

Board System (TTNBBS). For

information on how to access this

system, see the SUPPLEMENTARY

INFORMATION section of this rule for

details.

Finally, at a state’s request, the optout could be effective later than 90 days

after the start of the transition period. In

such a case, a state must indicate in its

petition to the Agency the desired

effective date for the opt-out. In this

scenario, EPA recommends that a state

consider an opt-out date which becomes

effective on one of the reformulated

gasoline program’s natural transition

points. EPA received comments

supporting opt-out effective dates that

are consistent with the natural

transition points. These natural

transition points are identified as

January 1, the start of the averaging

season, and May 1 and September 15,

the beginning and end, respectively, of

the VOC control season. The Agency

understands these concerns and will

support state efforts to accommodate

these natural transition points.

G. Cyclic Opt-outs and Opt-ins by a

State

The reformulated gasoline program is

a cost-effective program designed to

reduce ozone levels in participating

metropolitan areas. But the cost

effectiveness of the reformulated

gasoline program is jeopardized by

regulatory uncertainty, as it pertains to

the regulated community’s ability to

plan for providing the manufacturing

capacity to produce oxygenate and

reformulated gasoline to specified

control areas. Specifically, the

uncertainty is increased by the

perceived absence of long term

commitment to the reformulated

gasoline program by those states who

opted into the reformulated gasoline

program and by the relatively simple

process for states to opt out of the

reformulated gasoline program provided

for in this final rule.

EPA understands and expects that

before a state submits an opt-out

petition it will have given thoughtful

consideration to the air quality

consequences of its action and

considered the substitute control

measures that may be needed to achieve

air quality standards and protect the

health of its citizens. Therefore, the

Agency believes it is improbable that a

state would seek to reverse an opt-out

decision by shortly thereafter requesting

to opt back into the program.

However, comments from the oil

industry expressed their concern that

states may engage in a cycle of opt-ins

and opt-outs. The Agency agrees that

the integrity of the reformulated

gasoline program would be jeopardized

if states maintained a cycle of opt-ins

and opt-outs, e.g. to create a customized

seasonal program. The reformulated

gasoline program is a year-round

program.

Given the limited applicability of this

final rule to December 31, 1997, EPA

believes that it is unlikely that states

would have the opportunity to complete

a cycle of opt-out and opt-in. Although

this final rule effectively allows states to

quickly opt out of the reformulated

gasoline program, the Agency may set

the effective date of opt-in up to one

year from the date of a governor’s optin application. Section 211(k)(6). States

would not be able to plan, with any

certainty, the timing of opt-ins and optouts which would create a seasonal

reformulated gasoline program. EPA

does not believe that current conditions

warrant any further restrictions on optins and opt-outs. EPA may promulgate

restrictions in the future if it is

determined in the future that cyclic optouts and opt-ins are occurring.

H. Effect on Averaging

Under the RFG regulations, refiners

and importers may elect to meet certain

RFG standards either on a per-gallon

basis or on average. This election, which

must be made separately for each

parameter and separately for each

calendar year, applies to all RFG

produced at a refinery by a refiner, or

imported by an importer, during a

calendar year.

Some commenters indicated that a

refiner or importer who elects to comply

with the RFG standards on average may

be adversely affected by an area opting

out of the RFG program during an

averaging period. This could occur

where a refiner’s or importer’s average

is out of compliance at the time of an

unanticipated opt-out, and reduced

future production or importation of RFG

due to the opt-out results in the refiner

or importer having insufficient volume

in the remainder of the averaging period

to bring the average into compliance.

EPA believes that the 90 day

(minimum) transition period provides

adequate time for refiners and importers

to adjust to changes in the RFG market

which may be attributed to opt-outs and

that it is unlikely that a refiner’s or

importer’s ability to comply with the

RFG standards on average would be

significantly impaired if an area opts out

of the RFG program. As a result, EPA is

not providing regulatory relief in today’s

action for such a possibility.

Nevertheless, in setting a potential

penalty in an enforcement action for

violation of the RFG averaging

standards, EPA will consider the effects

of any opt-outs if the refiner or importer

is able to demonstrate (1) that it would

have been in compliance but for the optout, and (2) that it took all reasonable

steps to address the averaging problem

caused by the opt-out.

II. New York’s, Pennsylvania’s and

Maine’s Requests to Remove Selected

Opt-In Areas From the Requirements of

the Reformulated Gasoline Program

A. Introduction

In the NPRM, EPA proposed to grant

the petitions from the governors of the

States of New York, Pennsylvania and

Maine to remove Jefferson County and

the Albany and Buffalo areas in New

York (a total of nine counties in New

York); the twenty-eight opt-in counties

in Pennsylvania; and Hancock and

Waldo counties in Maine from the list

of covered areas defined by section

80.70 of the reformulated gasoline rule.

Jefferson County and the other eight

New York counties affected by this

proposal were included as covered areas

in EPA’s reformulated gasoline

regulations based on Governor Mario

Cuomo’s request of October 28, 1991,

that these areas be included under the

Act’s opt-in provision for ozone

nonattainment areas (57 FR 7926, March

5, 1992). See 40 CFR 80.70(j)(10)(vi). On

November 29, 1994, EPA received a

petition from the Commissioner of New

York’s Department of Environmental

Conservation, Mr. Langdon Marsh, to

remove Jefferson County from the list of

areas covered by the requirements of the

reformulated gasoline program. EPA

understands that Commissioner Marsh

was acting for Governor Cuomo in this
35678 Federal Register / Vol. 61, No. 131 / Monday, July 8, 1996 / Rules and Regulations

matter. The Administrator responded to

the State’s request in a letter to

Commissioner Marsh dated December

12, 1994, stating EPA’s intention to

grant New York’s request, and conduct

rulemaking to implement this. In the

letter of December 12, addressing the

opt-out request for Jefferson County, the

Administrator also indicated that

effective January 1, 1995, and until the

rulemaking to remove Jefferson County

from the list of covered areas is

completed, EPA would not enforce the

reformulated gasoline requirements in

Jefferson County for reformulated

gasoline violations arising after January

1, 1995. This was based on the

particular circumstances in Jefferson

County.

On December 23, 1994, Commissioner

Marsh of New York’s Department of

Environmental Conservation wrote to

further request the opt-out of the Albany

and Buffalo areas which include the

counties of Albany, Greene,

Montgomery, Rennsselaer, Saratoga,

Schenectady, Erie and Niagara. EPA

Assistant Administrator for Air and

Radiation, Mary Nichols, responded to

the state’s request in a letter to

Commissioner Marsh dated December

28, 1994, stating EPA’s intention to

grant New York’s request, and conduct

rulemaking to implement this. The

December 28 letter also indicated EPA’s

intent to stay the reformulated gasoline

regulations from January 1, 1995, until

July 1, 1995, in the specified counties

while the Agency completes rulemaking

to appropriately change the regulations.

The letter stated, however, that the

requirements of the reformulated

gasoline program would apply in these

areas until the stay becomes effective

January 1, 1995.

Twenty-eight counties in

Pennsylvania were included as covered

areas in EPA’s reformulated gasoline

regulations based on Governor Robert P.

Casey’s request dated September 25,

1991. See 40 CFR 80.70(j)(11)(i) through

(xxviii). The counties referred to are

listed as follows: Adams, Allegheny,

Armstrong, Beaver, Berks, Blair, Butler,

Cambria, Carbon, Columbia,

Cumberland, Dauphin, Erie, Fayette,

Lackawanna, Lancaster, Lebanon,

Lehigh, Luzerne, Mercer, Monroe,

Somerset, Northhampton, Perry,

Washington, Westmoreland, Wyoming

and York. On December 1, 1994, EPA

received a petition from Governor Casey

to remove these twenty-eight counties

from the list of covered areas defined by

§ 80.70 of the reformulated gasoline

rule. As with New York’s request, the

Administrator responded to the State’s

request in a letter to Governor Casey

dated December 12, 1994, stating EPA’s

intention to grant Pennsylvania’s

request, and conduct rulemaking to

implement this. Effective January 1,

1995, and until formal rulemaking to

remove the twenty-eight counties from

the list of covered areas is completed,

EPA would not enforce the reformulated

gasoline requirements in these twentyeight counties for reformulated gasoline

violations arising after January 1, 1995.

This was based on the particular

circumstances in Pennsylvania. EPA has

reserved its authority to enforce the

reformulated gasoline program for

violations that may have occurred prior

to January 1, 1995.

Hancock and Waldo Counties in

Maine were included as covered areas

in EPA’s reformulated gasoline

regulation based on Governor John R.

McKernan’s request of June 26, 1991,

that these counties be included under

the Act’s opt-in provision for ozone

nonattainment areas. (56 FR 46119,

September 10, 1991) See 40 CFR

80.70(j)(5)(viii) and (ix). On December

27, EPA received a petition from the

Acting Commissioner of Maine’s

Department of Environmental

Protection, Ms. Deborah Garrett, to

remove Hancock and Waldo Counties in

Maine from the list of areas covered by

the requirements of the reformulated

gasoline program. EPA understands that

Commissioner Garrett is acting for

Governor McKernan in this matter. EPA

Assistant Administrator for Air and

Radiation, Mary Nichols, responded to

the state’s request in a letter to

Commissioner Garrett, dated December

28, 1994, stating EPA’s intention to

grant Maine’s request, and conduct

rulemaking to implement this. The

December 28 letter also stated EPA’s

intent to stay the reformulated gasoline

regulations from January 1, 1995 until

July 1, 1995, in the specified counties

while the Agency completes rulemaking

to appropriately change the regulations.

However, EPA has reserved its authority

to enforce the reformulated gasoline

program for violations that may have

occurred prior to January 1, 1995.

In separate notices signed by the EPA

Administrator on December 29, 1994,

and June 30, 1995, and for the reasons

described therein, EPA has stayed the

program in these thirty-nine counties, or

portions thereof, effective January 1,

1995, until such time as the Agency

completed rulemaking on the proposed

opt-out for these areas. (60 FR 2696,

January 11, 1995; 60 FR 35488, July 10,

1995) Based on this chronology, EPA

proposed that these areas be removed

from the reformulated gasoline program

effective upon the issuance of final

action in this rulemaking. (60 FR 31269,

June 14, 1995)

B. EPA Grants New York’s,

Pennsylvania’s and Maine’s Requests To

Remove Selected Opt-In Areas From the

Requirements of the Reformulated

Gasoline Program

EPA believes that it is appropriate to

interpret section 211(k) as authorizing

states to opt out of the RFG program,

provided that a process is established

for a reasonable transition out of the

program. 60 FR 31269 (June 14, 1995).

The Agency has considered two key

aspects in granting these opt-outs: the

first involves coordination of air quality

planning, and the second involves

appropriate lead time for industry to

transition out of the program.

With respect to air quality planning,

EPA believes there is no reason to delay

the removal of the 39 affected counties,

or portions of counties, in New York,

Pennsylvania and Maine. These areas do

not include or rely on reformulated

gasoline as a control measure in any

state implementation plan, maintenance

plan or 15% rate of progress plan. Even

if reformulated gasoline is included as

a contingency measure in a maintenance

plan for the redesignation packages,

allowing an area to opt out now would

not interfere with implementing that

contingency. The areas could opt into

the reformulated gasoline program in

the future, if necessary, within the

restrictions outlined in section 211

(k)(6) of the Act.

As indicated above, the reformulated

gasoline program is currently stayed in

all of the affected areas, and Agency

consideration of an appropriate lead

time for industry to change the supply

of gasoline is unnecessary.

Therefore, in today’s action, EPA

removes Jefferson County and the

Albany and Buffalo areas in New York

(a total of nine counties in New York);

the twenty-eight opt-in counties in

Pennsylvania; and Hancock and Waldo

counties in Maine from the list of

covered areas defined by § 80.70 of the

reformulated gasoline rule as of July 8,

1996.

III. Environmental Impact

If an area opts out of the reformulated

gasoline program, it will not receive the

reductions in volatile organic

compounds, oxides of nitrogen (NOX),

and air toxics that are expected from

this program. Instead, the areas would

be subject to the federal controls on

Reid vapor pressure for gasoline in the

summertime, and would receive control

of NOX and air toxics through the

requirements of the conventional

gasoline anti-dumping program. These

latter requirements are designed to

ensure that gasoline quality does not
Federal Register / Vol. 61, No. 131 / Monday, July 8, 1996 / Rules and Regulations 35679

1See 58 FR 51735 (October 4, 1993).

2 Id. at section 3(f)(1)-(4).

degrade from the levels found in 1990.

These areas would be foregoing the air

quality benefits obtained from the use of

reformulated gasoline.

However, as discussed in the

proposal, one of the central concepts

behind this rule is a recognition that

states have the primary responsibility to

develop the mix of control strategies

needed to attain and maintain the

NAAQS, and should have flexibility in

determining the mix of control measures

needed to meet their air pollution goals.

EPA expects that states will in fact act

prudently in exercising their rights to

opt out under these rules. Any

environmental impacts of opting out are

therefore not expected to occur in

isolation, but in a context of states

exercising their responsibility and

developing appropriate control

strategies for their areas’ air pollution

goals.

IV. Regulatory Flexibility Analysis

This rule is not expected to result in

any additional compliance cost to

regulated parties and in fact is expected

to decrease compliance costs to those

entities who previously supplied

reformulated gasoline to the area opting

out. This rule also establishes a

transition period which maximizes

affected parties’s ability to plan for

smooth transition from the reformulated

gasoline program, minimizing

disruption to the motor gasoline

marketplace. This transition period is

reasonably expected to allow parties to

turn over existing stocks of reformulated

gasoline to conventional gasoline.

Accordingly, EPA has determined that it

is not necessary to prepare regulatory

flexibility analysis in connection with

this final rule. EPA has determined that

this rule will have no significant

adverse effect on substantial number of

small businesses.

V. Public Participation

A. Public Comments

The Agency received submissions

during the comment period for the

NPRM from 36 commenters. Copies of

all of the written comments submitted

to EPA, as well as records of all oral

comments received during the comment

period, can be obtained from the docket

for this rule (see ADDRESSES).

The Agency received comments from

the public on three major issues: the

opt-out process, EPA’s authority to

promulgate a rule on opt-outs, and

transition period. A summary of these

comments along with the Agency’s

responses are located throughout the

preamble above. Discussion of public

comments on the proposed opt-out

process and the Agency response can be

located in Section I, Parts C and E of this

preamble. Discussion of public

comments on the proposed transition

periods and the Agency response can be

found in Section I, Part F. The Agency

response to comments on statutory

authority are located in Section I, Part

B and in the preamble to the proposal,

at 60 FR 31271.

The docket also contains a document

that provides a more detailed summary

of the comments, including some issues

not covered in this preamble because

they were minor or less contentious

issues, and EPA’s rationale for its

response.

B. Public Hearing

The Agency held a public hearing on

July 5, 1995 to hear comments on the

Notice of Proposed Rulemaking (60 FR

31269) published June 14, 1995.

Comments at the hearing were provided

by representatives of the oil industry

and fuel oxygenate producers. These

comments have been presented and

addressed in the preamble above.

VI. Executive Order 12866

Under Executive Order 12866 1, the

Agency must determine whether a

regulation is ‘‘significant’’ and therefore

subject to OMB review and the

requirements of the Executive Order.

The Order defines ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more, or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local or tribal governments of

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof, or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in this Executive Order.2

It has been determined that this rule

is not a ‘‘significant regulatory action’’

under the terms of Executive Order

12866 and is therefore not subject to

OMB review.

VII. Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘UMRA’’), Pub.L. 104–4, EPA must

prepare a budgetary impact statement to

accompany any general notice of

proposed rulemaking or final rule that

includes a Federal mandate which may

result in estimated costs to State, local,

or tribal governments in the aggregate,

or to the private sector, of $100 million

or more. Under Section 205, for any rule

subject to Section 202 EPA generally

must select the least costly, most costeffective, or least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Under Section

203, before establishing any regulatory

requirements that may significantly or

uniquely affect small governments, EPA

must take steps to inform and advise

small governments of the requirements

and enable them to provide input.

EPA has determined that the final rule

promulgated today does not trigger the

requirements of UMRA. The rule does

not include a Federal mandate that may

result in estimated annual costs to State,

local or tribal governments in the

aggregate, or to the private sector, of

$100 million or more, and it does not

establish regulatory requirements that

may significantly or uniquely affect

small governments.

VIII. Judicial Review

Because this final action is nationally

applicable, under section 307(b)(1) of

the Clean Air Act judicial review of this

action is available only by the filing of

a petition for review in the U.S. Court

of Appeals for the D.C. Circuit within

sixty days of publication of this action

in the Federal Register.

VIIII. Submission to Congress and the

General Accounting Office

Under section 801(a)(1)(A) of the

Administrative Procedures Act (APA) as

amended by the Small Business

Regulatory Enforcement Fairness Act of

1996, EPA submitted a report containing

this rule and other required information

to the U.S. Senate, the U.S. House of

Representatives and the Comptroller

General of the General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by section

804(2) of the APA as amended.

List of Subjects in 40 CFR Part 80

Environmental protection, Air

pollution control, Fuel additives,

Gasoline, Motor vehicle pollution.

Dated: June 21, 1996.

Carol M. Browner,

Administrator.

40 CFR part 80 is amended as follows:
35680 Federal Register / Vol. 61, No. 131 / Monday, July 8, 1996 / Rules and Regulations

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)).

2. Section 80.2 is amended by adding

paragraph (vv) to read as follows:

§ 80.2 Definitions.

* * * * *

Opt-in area. An area which becomes

a covered area under § 80.70 pursuant to

section 211(k)(6) of the Clean Air Act.

3. Section 80.70 is amended by

revising paragraph (j) introductory text;

by removing paragraphs (j)(5)(viii),

(5)(ix), (j)(10)(i), (10)(iii), (10)(v) through

(10)(xi); by redesignating paragraphs

(j)(10)(ii) and (iv) as (10)(i) and (10)(ii);

by removing paragraph (j)(11) and

redesignating (j)(12) through (14) as

(j)(11) through (13) respectively; and by

adding a new paragraph (l) to read as

follows:

§ 80.70 Covered areas.

* * * * *

(j) The ozone nonattainment areas

listed in this paragraph (j) are covered

areas for purposes of subparts D, E, and

F of this part. The geographic extent of

each covered area listed in this

paragraph (j) shall be the nonattainment

area boundaries as specified in 40 CFR

part 81, subpart C:

* * * * *

(l) Upon the effective date for removal

under § 80.72(a), the geographic area

covered by such approval shall no

longer be considered a covered area for

purposes of subparts D, E and F of this

part.

4. Section 80.72 is added to read as

follows:

§ 80.72 Procedures for opting out of the

covered areas.

(a) For petitions received prior to and

including December 31, 1997 and in

accordance with paragraph (b) of this

section, the Administrator may approve

a petition from a state asking for

removal of any opt-in area, or portion of

an opt-in area, from inclusion as a

covered area under § 80.70. If the

Administrator approves a petition, he or

she shall set an effective date as

provided in paragraph (c) of this

section. The Administrator shall notify

the state in writing of the Agency’s

action on the petition and the effective

date of the removal when the petition is

approved.

(b) To be approved under paragraph

(a) of this section, a petition must be

signed by the governor of a state, or his

or her authorized representative, and

must include the following:

(1) A geographic description of each

opt-in area, or portion of each opt-in

area, which is covered by the petition;

(2) A description of all ways in which

reformulated gasoline is relied upon as

a control measure in any approved state

or local implementation plan or plan

revision, or in any submission to the

Agency containing any proposed plan or

plan revision (and any associated

request for redesignation) that is

pending before the Agency when the

petition is submitted; and

(3) For any opt-in areas covered by the

petition for which reformulated gasoline

is relied upon as a control measure as

described under paragraph (b)(2) of this

section, the petition shall include the

following information:

(i) Identify whether the state is

withdrawing any such pending plan

submission;

(ii)(A) Identify whether the state

intends to submit a revision to any such

approved plan provision or pending

plan submission that does not rely on

reformulated gasoline as a control

measure, and describe the alternative air

quality measures, if any, that the state

plans to use to replace reformulated

gasoline as a control measure;

(B) A description of the current status

of any proposed revision to any such

approved plan provision or pending

plan submission, as well as a projected

schedule for submission of such

proposed revision;

(iii) If the state is not withdrawing any

such pending plan submission and does

not intend to submit a revision to any

such approved plan provision or

pending plan submission, describe why

no revision is necessary;

(iv) If reformulated gasoline is relied

upon in any pending plan submission,

other than as a contingency measure

consisting of a future opt-in, and the

Agency has found such pending plan

submission complete or made a

protectiveness finding under 40 CFR

51.448 and 93.128, demonstrate whether

the removal of the reformulated gasoline

program will affect the completeness

and/or protectiveness determinations;

(4) The Governor of a State, or his or

her authorized representative, shall

submit additional information upon

request of the Administrator,

(c) (1) Except as provided in

paragraph (c)(2) of this section, the

Administrator shall set an effective date

for removal of an area under paragraph

(a) of this section of 90 days from the

Agency’s written notification to the state

approving the opt-out petition.

(2) If reformulated gasoline is

contained as an element of any plan or

plan revision that has been approved by

the Agency, other than as a contingency

measure consisting of a future opt-in,

then the effective date under paragraph

(a) of this section shall be 90 days from

the effective date for Agency approval of

a revision to the plan that removes

reformulated gasoline as a control

measure.

(d) The Administrator shall publish a

notice in the Federal Register

announcing the approval of any petition

under paragraph (a) of this section, and

the effective date for removal.

[FR Doc. 96–16668 Filed 7–5–96; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 425

RIN 2040–AC48

[FRL–5527–4]

Leather Tanning and Finishing Effluent

Limitations Guidelines; Pretreatment

Standards; New and Existing Sources

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is promulgating changes

modifying the pretreatment standards

for existing and new sources applicable

to certain facilities in the leather

tanning and finishing point source

category that conduct unhairing

operations and that discharge process

wastewater to publicly owned treatment

works (‘‘POTW’’). This rule responds to

a petition submitted by the leather

tanning industry. The Agency

conducted an informal survey of a small

number of POTWs, permitting

authorities, and industry representatives

knowledgeable of leather processing

operations and wastewater treatment.

EPA is promulgating these changes as a

‘‘direct’’ final rule because the Agency

does not expect significant adverse or

critical comments. EPA also wants to

provide prompt implementation of the

rule to minimize any potential hazards

to worker safety and health that may

occur in the absence of this rule. Prompt

implementation will also allow affected

facilities in this category to reduce the

use of treatment chemicals.

DATES: This rule is effective on October

7, 1996 unless significant adverse or

critical comments are received by

September 6, 1996. If the effective date

is delayed, timely notice will be

published in the Federal Register.

ADDRESSES: Send comments in triplicate

on this rule to Mr. Ed Terry, Engineering

and Analysis Division (4303), U.S. EPA,

401 M St. S.W., Washington, DC 20460.