Regulation of Fuels and Fuel Additives: Extension of the Reformulated Gasoline Program to Maine's Southern Counties

Regulation of Fuels and Fuel Additives: Extension of the Reformulated Gasoline Program to Maine's Southern Counties

Regulation of Fuels and Fuel Additives: Extension of the Reformulated Gasoline Program to Maine's Southern Counties

Gina McCarthy
Environmental Protection Agency
February 6, 2015

[Federal Register Volume 80, Number 25 (Friday, February 6, 2015)]
[Rules and Regulations]
[Pages 6658-6662]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-02185]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[EPA-HQ-OAR-2014-0283; FRL 9921-82-OAR]
RIN 2060-AS19

Regulation of Fuels and Fuel Additives: Extension of the
Reformulated Gasoline Program to Maine's Southern Counties

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is extending the
Clean Air Act's (CAA) prohibition against the sale of conventional
gasoline in reformulated gasoline (RFG) areas to the southern Maine
counties of York, Cumberland, Sagadahoc, Androscoggin, Kennebec, Knox,
and Lincoln (hereinafter, the ``Southern Maine Counties''). This action
is based on a request from the Governor of the State of Maine for areas
within the ozone transport region established under the CAA. The CAA
does not give the EPA discretion to deny a Governor's request on this
matter. The scope of the EPA's discretion is limited to establishing
the date that the prohibition commences. Consistent with the Governor's
request, the EPA is finalizing as proposed a prohibition commencement
date of May 1, 2015 for all refiners, importers, and distributors in
the Maine counties referenced in the Governor's request, and June 1,
2015 for all retailers and wholesale purchaser-

[[Page 6659]]

consumers in those counties. The EPA is also adding in its RFG opt-out
rules a provision to reflect that there is a four-year minimum opt-in
period for areas that opt into the RFG program on the basis of their
location within the ozone transport region. This clarification aligns
the federal regulation for RFG opt-out requirements with the CAA.

DATES: This final rule is effective on March 9, 2015.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2014-0283. All documents in the docket are
listed on the www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically through
www.regulations.gov or in hard copy at the Air and Radiation Docket,
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution
Avenue NW., Washington, DC 20004. This Docket Facility is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The Docket telephone number is (202) 566-1744, and the
telephone number for the Air Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Patty Klavon, Office of Transportation
and Air Quality, Environmental Protection Agency, 2000 Traverwood
Drive, Ann Arbor, Michigan, 48105; telephone number: (734) 214-4476;
fax number: (734) 214-4052; email address: klavon.patty@epa.gov.

SUPPLEMENTARY INFORMATION:
The contents of this preamble are listed in the following outline:

I. General Information
II. Background
III. Description of the Final Rule
IV. Rationale
V. Statutory and Executive Order Reviews
VI. Legal Authority and Statutory Provisions

I. General Information

A. Does this action apply to me?

Entities potentially affected by this rule are fuel producers and
distributors who do business in Maine.

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NAICS
Examples of potentially regulated entities \1\
Codes
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Petroleum refineries........................................... 324110
Gasoline Marketers and Distributors............................ 424710
424720
Gasoline Retail Stations....................................... 447110
Gasoline Transporters.......................................... 484220
484230
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The above is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. The table lists the types of entities of which the EPA is aware
that potentially could be affected by this rule. Other types of
entities not listed on the table could also be affected by this rule.
To determine whether your organization could be affected by this rule,
you should carefully examine the regulations in 40 CFR 80.70. If you
have questions regarding the applicability of this action to a
particular entity, call the person listed in the FOR FURTHER
INFORMATION CONTACT section of this preamble.
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\1\ North American Industry Classification System.
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II. Background

A. Background on the Federal Reformulated Gasoline Program

The purpose of the federal RFG program is to improve air quality in
certain areas through the use of gasoline that is reformulated to
reduce motor vehicle emissions of tropospheric ozone-forming compounds,
as set forth in CAA section 211(k)(1). The EPA first published
regulations for the federal RFG program on February 16, 1994. (59 FR
7716). RFG makes up over 30 percent of the volume of motor vehicle
gasoline consumed in the United States \2\ and is used in 17 states and
the District of Columbia.\3\
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\2\ See the U.S. Energy Information Administration statistics on
consumption and sales of petroleum and other liquids at: http://www.eia.gov/petroleum/reports.cfm?t=164.
\3\ For a map showing current RFG areas, please visit the EPA's
Web site at: http://www.epa.gov/otaq/fuels/gasolinefuels/rfg/areas.htm.
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CAA section 211(k)(5) prohibits the sale of conventional gasoline
(i.e., gasoline that the EPA has not certified as reformulated) in
certain ozone nonattainment areas beginning January 1, 1995. CAA
section 211(k)(10)(D) defines the areas initially covered by the
federal RFG program as 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.\4\ In addition, under CAA
section 211(k)(10)(D), any area reclassified as a Severe ozone
nonattainment area under CAA section 181(b) is also included in the
federal RFG program. Finally, CAA sections 211(k)(6)(A) and (B) allow
areas classified as Marginal, Moderate, Serious, or Severe ozone
nonattainment areas, or areas within the ozone transport region
established under CAA section 184, to opt into the RFG program at the
request of the Governor of the State in which the area is located.
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\4\ Applying these criteria, the 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.
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Maine is in the ozone transport region established under CAA
section 184, and its request to opt into the RFG program was made
pursuant to CAA section 211(k)(6)(B). That provision specifies that
upon petition of the Governor of a State in the ozone transport region,
the EPA is to apply the prohibition against selling or dispensing of
conventional gasoline in RFG covered areas in any area in the State
other than an area classified as Marginal, Moderate, Serious, or Severe
ozone nonattainment area under subpart 2 of part D of subchapter 1 of
the Clean Air Act. This prohibition is to ``commence as soon as
practicable but not later than 2 years after the date of approval by
the Administrator of the application of the Governor of the State.''
CAA section 211(k)(6)(B)(ii)(I). However, if the EPA determines that
there is insufficient capacity to supply RFG, the EPA may extend the
commencement date by no more than a year, and may renew that extension
for two additional one-year periods. CAA section 211(k)(6)(B)(iii). The
area may not opt out of the federal RFG program earlier than four (4)
years after the RFG commencement date. CAA section
211(k)(6)(B)(ii)(II).

B. Request From the State of Maine

In 2013, the State of Maine enacted Public Law 2013 c.221 calling
for the use of RFG in York, Cumberland, Sagadahoc, Androscoggin,
Kennebec, Knox, and Lincoln counties beginning May 1, 2014. On July 23,
2013, the Governor of Maine formally requested, pursuant to CAA section
211(k)(6)(B), that the EPA extend the requirement for the sale of RFG
to these counties beginning on May 1, 2014.
The Maine legislature subsequently enacted an emergency law, Public
Law 2013 c.453, effective March 6, 2014, to postpone the requirement
for the sale of RFG in these counties until June 1, 2015. Pursuant to
that legislation, the

[[Page 6660]]

Commissioner for the State of Maine's Department of Environmental
Protection (DEP) submitted a request to the EPA dated March 10, 2014,
modifying Maine's request for the implementation date for the sale of
RFG in the Southern Maine Counties to coincide with June 1, 2015.\5\
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\5\ The EPA has determined that the original petition from the
Governor of Maine, together with the revised Maine legislation and
the Commissioner's letter, serve as a petition from the Governor
under CAA section 211(k)(6)(B) seeking commencement of the
prohibition in CAA 211(k)(5) in the Southern Maine Counties on June
1, 2015.
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Copies of the Commissioner's letter, the letter from the Governor
of the State of Maine dated July 23, 2013, and the Maine legislation
establishing the use of RFG in the Southern Maine Counties are
available in the docket at EPA-HQ-OAR-2014-0283.
The EPA issued a proposal for public comment on August 28, 2014 (79
FR 51288), consistent with the State's request. No comments were
received.

III. Description of the Final Rule

Based on our evaluation of the appropriate lead time and start
dates, and pursuant to Maine's request for a June 1, 2015
implementation date and the provisions of CAA section 211(k)(6), the
EPA is amending its RFG regulation at 40 CFR 80.70 to add new paragraph
(n)(1) extending the CAA section 211(k)(5) prohibition against the sale
of conventional (i.e., non-reformulated) gasoline in RFG covered areas
to the Southern Maine Counties. Based on Maine's request for a June 1,
2015 implementation date, the EPA is finalizing as proposed the
prohibition on the sale of conventional gasoline in the Southern Maine
Counties to commence as of May 1, 2015 for all regulated entities in
these counties other than retailers and wholesale purchaser-consumers
(i.e., refiners, importers, and distributors), and as of June 1, 2015
for retailers and wholesale purchaser-consumers. Thus, conventional
gasoline may not be sold to consumers in the Southern Maine Counties as
of June 1, 2015. Only RFG may be sold to consumers in these counties as
of June 1, 2015. The Southern Maine Counties are part of the ozone
transport region as defined in CAA section 184. They are not currently
classified under subpart 2 of Part D of CAA subchapter I as Marginal,
Moderate, Serious, or Severe ozone nonattainment areas.
Further, in today's action, EPA is updating its RFG opt-out
regulation at 40 CFR 80.72 to add a new paragraph (c)(8) to reflect
that there is a four-year minimum opt-in period for areas that opt into
the RFG program on the basis of their location within the ozone
transport region. This clarification aligns the federal regulation for
RFG opt-out requirements with CAA section 211(k)(6)(B)(ii)(II).
Thus, the State of Maine may not opt out of the federal RFG program
for the Southern Maine Counties before May 1, 2019 for all regulated
entities other than retailers and wholesale purchaser-consumers, and
not before June 1, 2019 for retailers and wholesale purchaser-
consumers, respectively.

IV. Rationale

The EPA has determined that the commencement dates for the
prohibition of the sale of conventional gasoline in the Southern Maine
Counties finalized in today's action provide a reasonable balance by
achieving air quality benefits in southern Maine by the start of the
2015 peak ozone season and providing adequate lead time for industry to
prepare for program implementation. The dates are consistent with the
State's request that the EPA require RFG to be sold in the Southern
Maine Counties to coincide with the beginning of the high ozone season,
which begins June 1 of each year. Thus, the dates provide environmental
benefits by allowing southern Maine to achieve volatile organic
compound (VOC) reduction benefits for the 2015 VOC control season. The
dates are also consistent with the statutory requirement that the EPA
set the date for commencement of the prohibition within two years of
the EPA's approval of the application by the Governor.
Today's final action has no effect on the approved Maine State
Implementation Plan (SIP). The State of Maine intends to submit a
proposed SIP revision requesting the removal of its existing 7.8 Reid
Vapor Pressure fuel requirements for the Southern Maine Counties. The
EPA will consider Maine's request when it is received.
As stated previously, the EPA received no comments on the proposed
rulemaking.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under Executive Orders 12866 and 13563.
(76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

This action does not impose any new information collection burden
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. Burden is defined at 5 CFR 1320.3. The OMB has approved the
information collection requirements that apply to the RFG program (see
59 FR 7716, February 16, 1994), and has assigned OMB control number
2060-0277 (EPA ICR No. 1591.25).

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's final rule on
small entities, small entity is defined as: (1) Defined by the Small
Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a
small governmental jurisdiction that is a government of a city, county,
town, school district or special district with a population of less
than 50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
adverse impact on a substantial number of small entities. In
promulgating the RFG regulations for conventional gasoline, the EPA
analyzed the impact of the regulations on small entities. The EPA
concluded that the regulations may possibly have some economic effect
on a substantial number of small refiners, but that the regulations may
not significantly affect other small entities, such as gasoline
blenders, terminal operators, service stations and ethanol blenders.
See 59 FR 7810-7811 (February 16, 1994). As stated in the preamble to
the final 1994 RFG rule, exempting small refiners from the RFG
regulations would not meet CAA requirements. 59 FR 7810. However, since
most small refiners are located in the mountain states or in
California, which has its own RFG program, the vast majority of small
refiners are unaffected by the federal RFG requirements (although all
refiners of conventional gasoline are potentially

[[Page 6661]]

subject to the RFG requirements). Moreover, all businesses, large and
small, maintain the option to produce conventional gasoline to be sold
in areas not obligated by the CAA to receive RFG or those areas which
have not chosen to opt into the federal RFG program. A complete
analysis of the effect of the RFG regulations on small businesses is
contained in the Regulatory Flexibility Analysis which was prepared for
the 1994 RFG regulations, and can be found in the docket for that
rulemaking. The docket number is: EPA Air Docket A-92-12.
Today's final rule affects only those refiners, importers or
blenders of gasoline that choose to produce or import RFG for sale in
the Southern Maine Counties, and gasoline distributors and retail
stations in those areas. As discussed above, the EPA determined that,
because of their location, the vast majority of small refiners will be
unaffected by the RFG requirements. For the same reason, most small
refiners will be unaffected by today's action. Other small entities,
such as gasoline distributors and retail stations located in the
Southern Maine Counties, which will become a covered area under today's
final rule, will be subject to the same requirements as those small
entities which are located in current RFG covered areas. The EPA did
not find the previous RFG regulations to significantly affect these
entities.

D. Unfunded Mandates Reform Act (UMRA)

This final rule does not contain a Federal mandate that may result
in expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year.
Thus, this final rule is not subject to the requirements of sections
202 and 205 of the UMRA. Although the EPA does not believe that UMRA
imposes requirements for this rulemaking, the EPA notes that the
environmental and economic impacts of the federal RFG program were
assessed in the EPA's Regulatory Impact Analysis for the 1994 RFG
regulations.
This final rule is also not subject to the requirements of section
203 of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.

E. Executive Order 13132 (Federalism)

This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. The final rule imposes requirements
only on certain refiners and other entities in the gasoline
distribution system, and not on States. The requirements of the final
rule will be enforced by the federal government at the national level.
Thus, Executive Order 13132 does not apply to this final rule.

F. Executive Order 13175

This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). Today's final
rule affects only those refiners, importers or blenders of gasoline
that choose to produce or import RFG for sale in the Southern Maine
Counties, and gasoline distributors and retail stations in those areas.
Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

This action is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it is not economically significant as defined
in Executive Order 12866, and because the Agency does not believe the
environmental health or safety risks addressed by this action present a
disproportionate risk to children.

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211 (66 FR 28355,
May 22, 2001) because it is not a significant regulatory action under
Executive Order 12866.

I. National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs the EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs the EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, the
EPA did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations of the United States.
The EPA has determined that this final rule does not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit 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 United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective March 9, 2015.

VI. Legal Authority and Statutory Provisions

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

[[Page 6662]]

List of Subjects in 40 CFR Part 80

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

Dated: January 23, 2015.
Gina McCarthy,
Administrator.
For the reasons discussed in the preamble, the Environmental
Protection Agency is amending 40 CFR part 80 as follows:

PART 80--REGULATION OF FUELS AND FUEL ADDITIVES

0
1. The authority citation for part 80 continues to read as follows:

Authority: 42 U.S.C. 7414, 7521, 7542, 7545, and 7601(a).

0
2. Section 80.70 is amended by adding paragraph (n) to read as follows:

Sec. 80.70 Covered areas.

* * * * *
(n) The areas included in paragraph (n) of this section are located
within the ozone transport region established under Clean Air Act
section 184(a), are not classified as a Marginal, Moderate, Serious, or
Severe ozone nonattainment area, and have opted into the reformulated
gasoline program. They are covered areas for the purposes of subparts
D, E, and F of this part.
(1) The southern Maine counties of York, Cumberland, Sagadahoc,
Androscoggin, Kennebec, Knox, and Lincoln are a covered area beginning
June 1, 2015. The prohibitions of Clean Air Act section 211(k)(5) apply
to all persons other than retailers and wholesale purchaser-consumers
in these counties beginning May 1, 2015. The prohibitions of section
211(k)(5) of the Clean Air Act apply to retailers and wholesale
purchaser-consumers in these counties beginning on June 1, 2015.
(2) [Reserved]

0
3. Section 80.72 is amended by adding paragraph (c)(8) to read as
follows:

Sec. 80.72 Procedures for opting out of the covered areas.

* * * * *
(c) * * *
(8) Notwithstanding any other provision of paragraph (c) of this
section, for an area that opted in pursuant to Clean Air Act section
211(k)(6)(B), the Administrator shall not set the effective date for
removal of the area earlier than four years after the commencement date
of opt-in.
* * * * *
[FR Doc. 2015-02185 Filed 2-5-15; 8:45 am]
BILLING CODE 6560-50-P