Regulation of Fuels and Fuel Additives: Administrative Stay of Certain Standards for Reformulated and Conventional Gasoline

SUMMARY: The Environmental Protection Agency (EPA or the Agency) is

issuing a three-month administrative stay of certain portions of the

anti-dumping regulations for conventional gasoline (gasoline not

certified as reformulated gasoline) which were promulgated in December

1993. Specifically, today's action stays criteria of the existing

requirements for obtaining an individual refinery baseline adjustment

due to the production of JP-4 jet fuel in 1990 and criteria of the

conventional gasoline provisions concerning refiners that are no longer

able to obtain extremely sweet crude which was available in 1990 and

was used to develop the 1990 individual baseline. In a related Notice

of Proposed Rulemaking, which is published elsewhere in this issue of

the Federal Register, EPA is proposing new baseline adjustment criteria

for these two cases. In both of these cases, the stay only applies to

those refiners that meet the new proposed criteria for a baseline

adjustment.

EFFECTIVE DATE: This final rule is effective August 4, 1995.

ADDRESSES: Materials relevant to the reformulated gasoline Final Rule

are contained in Public Dockets A-91-02 and A-92-12. Materials relevant

to the Notice of Proposed Rule on baseline adjustments are contained in

Public Docket A-95-03. These dockets are located at Room M-1500,

Waterside Mall (ground floor), U.S. Environmental Protection Agency,

401 M Street, SW., Washington, DC 20460. The docket may be inspected

from 8:00 a.m. until 5:00 p.m. Monday through Friday. A reasonable fee

may be charged by EPA for copying docket materials.

FOR FURTHER INFORMATION CONTACT: Carol Menninga, U.S. EPA (RDSD-12),

Regulation Development and Support Division, 2565 Plymouth Rd., Ann

Arbor, MI 48105. Telephone (313) 668-4480. To request copies of this

document, contact Delores Frank, U.S. EPA (RDSD-12), Regulation

Development and Support Division, 2565 Plymouth Rd., Ann Arbor, MI

48105. Telephone (313) 668-4295.

SUPPLEMENTARY INFORMATION:

I. Electronic Copies of Rulemaking Documents Through the Technology

Transfer Network Bulletin Board System (TTNBBS)

A copy of this document is available electronically 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: TELNET ttnbbs.rtpnc.epa.gov

Off-line: Mondays from 8:00 AM to 12:00 Noon ET

A user who has not called TTN previously will first be required to

answer some basic informational questions for registration purposes.

After completing the registration process, proceed through the

following menu choices from the Top Menu to access information on this

rulemaking.

GATEWAY TO TTN TECHNICAL AREAS (Bulletin Boards)

OMS--Mobile Sources Information

Rulemaking and Reporting

Fuels

File Area #9 . . . Reformulated gasoline

At this point, the system will list all available files in the

chosen category in reverse chronological order with brief descriptions.

These files are compressed (i.e., ZIPed). Today's notice can be

identified by the following title: JP4STAY.ZIP. To download this file,

type the instructions below and transfer according to the appropriate

software on your computer:

ownload, rotocol, xamine, ew, ist, or elp Selection

or 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 ystems Utilities from

the top menu, under rchivers/de-archivers. After getting the files

you want onto your computer, you can quit the TTNBBS with the 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.

II. Administrative Stay

The administrative stay of the provisions concerning JP-4 and

certain changes in sweet crude oil are being undertaken pursuant to

section 307(d)(7)(B) of the Clean Air Act, 42 U.S.C. 7607(d)(7)(B).

That provision authorizes the Administrator to stay the effectiveness

of a rule for three months if the grounds for an objection arose after

the period for public comment and if the objection is of central

relevance to the outcome of the rule. In a separate Notice of Proposed

Rulemaking, which is published elsewhere in this issue of the Federal

Register, EPA is proposing to extend the stay for the duration of a

rulemaking proposing these changes to the criteria for a baseline

adjustment.

The grounds for an objection to the criteria for an individual

baseline adjustment based on production of JP-4 jet fuel arose after

the end of the public comment period for the Final Rule, ``Regulation

of Fuels and Fuel Additives; Standards for Reformulated and

Conventional Gasoline,'' (59 FR 7716, February 16, 1994) and before the

time allowed for seeking judicial review. New information has since

been submitted to EPA concerning the number of parties potentially

affected by the criteria adopted, and the ability of parties with more

than one refinery to aggregate baselines and thereby avoid the adverse

impacts of a failure to obtain an individual baseline adjustment. This

information became available to EPA after the final criteria were

adopted by EPA, and are directly relevant to the basic rationale for

those criteria. Because this information concerns the impact of the

final criteria adopted by EPA, it was not available at the proposal

stage.

Similarly, the grounds for an objection to a lack of a baseline

adjustment based on changes in the sulfur level of available crude oil

arose after expiration of the period for public comment. It appears

that the sulfur levels of crude have changed significantly since 1990

for certain areas of the country. Until EPA issued its final rules in

December 1993, and more information was obtained on the sulfur levels

of crude that would be available for use in 1995 and later, refiners

that have historically relied on the availability of low sulfur crude

could not identify for EPA the full impact of the final conventional

gasoline

[[Page 40007]]

requirements on their ability to continue marketing conventional

gasoline.

Based on the above, and the Agency's interest in reconsidering

these provisions (discussed in the separate Notice of Proposed

Rulemaking published elsewhere in this issue of the Federal Register),

EPA hereby issues a three-month administrative stay of the

effectiveness of the following rules, with certain conditions keyed to

the requirements proposed elsewhere in this issue of the Federal

Register. The stay is structured such that it will only affect those

persons who meet the proposed requirements for a baseline adjustment.

First, 40 CFR 80.91(e)(7)(i)(A) through (C) is stayed for three

months for all persons that meet the requirements of section

80.91(e)(7) as proposed in a separate Notice of Proposed Rulemaking. In

effect, persons who meet the proposed requirements would be able to

receive a baseline adjustment under 80.91(e)(7) if they also met the

requirements of 80.91(e)(7) (ii) and (iii). If a person does meet these

conditions, then the Agency may approve a baseline adjustment under the

terms of this stay, or under the terms of any stay issued through

rulemaking.

Second, 40 CFR 80.101(b)(1)(ii) is stayed for three months for all

persons that meet the requirements proposed elsewhere in this issue of

the Federal Register as of a new proposed section 80.91(e)(8), and that

comply with an annual average sulfur level of 125% of the compliance

baseline that would apply under the new proposed section 80.91(e)(8).

In effect, the stay would only affect those persons who meet the

proposed requirements for a baseline adjustment and who also meet the

annual average sulfur level for conventional gasoline that would apply

if they received a baseline adjustment under the related Notice of

Proposed Rulemaking.

The terms of the three-month administrative stay apply to all

gasoline produced from January 1, 1995 through to the end of any such

stay.

III. Environmental and Economic Impacts

The environmental impacts of today's action are minimal, as

discussed above. Additionally, economic impacts are generally

beneficial to affected refiners due to the additional flexibility

afforded by the stay in combination with the baseline adjustments in a

related Notice of Proposed Rulemaking published elsewhere in this issue

of the Federal Register. Minimal anti-competitive effects are expected.

The environmental and economic impacts of the reformulated gasoline

program are described in the Regulatory Impact Analysis supporting the

December 1993 rule, which is available in Public Docket A-92-12 located

at Room M-1500, Waterside Mall (ground floor), U.S. Environmental

Protection Agency, 401 M Street S.W., Washington, D.C. 20460.

IV. Compliance With the Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) of 1980 requires federal

agencies to examine the effects of their regulations and to identify

any significant adverse impacts of those regulations 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. In fact, today's action is designed to

promote successful implementation of the anti-dumping requirements of

the reformulated gasoline program for all affected parties.

V. Administrative Designation

Pursuant to Executive Order 12866, (58 FR 51735, October 4, 1993)

the Agency must determine whether the regulatory action is

``significant'' and therefore subject to OMB review and the

requirements of the executive order. The Order defines ``significant

regulatory action as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlement, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

Pursuant to the terms of Executive Order 12866, it has been

determined that this final rulemaking is not a ``significant regulatory

action''.

VI. Paperwork Reduction Act

The Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq., and

implementing regulations, 5 CFR Part 1320, do not apply to this action

as it does not involve the collection of information as defined

therein.

VII. Unfunded Mandates Act

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in

expenditure by State, local, and tribal governments, in the aggregate;

or by the private sector, of $100 million or more. Under Section 205,

EPA must select the most cost-effective and least burdensome

alternative that achieves the objectives of the rule and is consistent

with statutory requirements. Section 203 requires EPA to establish a

plan for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that today's action does not include a Federal

mandate that may result in estimated costs of $100 million or more to

either State, local or tribal governments in the aggregate, or to the

private sector. This action has the net effect of reducing burden of

the reformulated gasoline program on regulated entities. Therefore, the

requirements of the Unfunded Mandates Act do not apply to this action.

XIII. Statutory Authority

The statutory authority for the administrative stay granted today

is Section 307(d) and 301 of the Clean Air Act as amended; 42 U.S.C.

7414, 7545(c) and (k), and 7601.

List of Subjects in 40 CFR Part 80

Environmental protection, Air pollution control, Fuel additives,

Gasoline, Motor vehicle pollution, Reporting and recordkeeping

requirements.

Dated: July 21, 1995.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, part 80 of title 40 of the

Code of Federal Regulations is amended as follows:

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 80.91 is amended by adding a new paragraph (e)(7)(iv) to

read as follows:

[[Page 40008]]

Sec. 80.91 Individual baseline determination.

* * * * *

(e) * * *

(7) * * *

(iv) The provisions of Sec. 80.91(e)(7)(i)(A) through (C) are

stayed until October 19, 1995, for all refiners which meet the

following requirements:

(A) Baseline adjustments may be allowed, upon petition and approval

(per Sec. 80.93), if a refinery produced JP-4 jet fuel in 1990 and all

of the following requirements are also met:

(1) The type of refinery must be described as one of the following:

(i) The refinery is the only refinery of a refiner such that it

cannot form an aggregate baseline with another refinery (per paragraph

(f) of this section); or

(ii) The refinery is one refinery of a multi-refinery refiner for

which all of its refineries produced JP-4 in 1990 and each of the

refineries also meets the requirements specified in paragraphs

(e)(7)(iv)(A)(2) and (3); or

(iii) The refinery is one refinery of a multi-refinery refiner for

which not all of the refiner's refineries produced JP-4 in 1990.

(2) No refinery of the refiner produces reformulated gasoline. If

any refinery of the refiner produces reformulated gasoline at any time

in a calendar year, the compliance baseline of all its refineries

receiving a baseline adjustment per this paragraph (e)(7)(A) shall

revert to each refinery's unadjusted baseline for that year and all

subsequent years.

(3) 1990 JP-4 to gasoline ratio.

(i) For a refiner per paragraph (e)(7)(iv)(A)(1)(i) of this

section, the ratio of its refinery's 1990 JP-4 production to its 1990

gasoline production must equal or exceed 0.15.

(ii) For a refiner per paragraph (e)(7)(iv)(A)(1)(ii) of this

section, the ratio of each of its refinery's 1990 JP-4 production to

its 1990 gasoline production must equal or exceed 0.15.

(iii) For a refiner per paragraph (e)(7)(iv)(A)(1)(iii) of this

section, the ratio of the refiner's 1990 JP-4 production to its 1990

gasoline production must equal or exceed 0.15, when determined across

all of its refineries.

(B) [Reserved]

* * * * *

3. Section 80.101 is amended by adding a new paragraph (b)(1)(v) to

read as follows:

Sec. 80.101 Standards applicable to refiners and importers.

* * * * *

(b) * * *

(1) * * *

(v) The provisions of Sec. 80.101 (b)(1)(ii) are stayed until

October 19, 1995, for all refiners that meet the following

requirements:

(A)(1) Baseline adjustments may be allowed, upon petition and

approval (per Sec. 80.93), if a refinery meets all of the following

requirements:

(i) The refinery does not produce reformulated gasoline. If the

refinery produces reformulated gasoline at any time in a calendar year,

its compliance baseline shall revert to its unadjusted baseline values

for that year and all subsequent years;

(ii) Has an unadjusted baseline sulfur value of not more than 50

ppm;

(iii) Is not aggregated with one or more other refineries per

Sec. 80.91(f). If a refinery which received an adjustment per this

paragraph (b)(1)(v) subsequently is included in an aggregate baseline,

its compliance baseline shall revert to its unadjusted baseline values

for that year and all subsequent years;

(iv) Would require refinery improvements of at least $10 million or

10 percent of the depreciated value of the refinery to comply with its

unadjusted baseline;

(v) Can show that it could not reasonably or economically obtain

crude oil from an alternative source that would permit it to produce

conventional gasoline which would comply with its unadjusted baseline;

(vi) Has experienced at least a 25% increase in the average sulfur

content of the crude oil used in the production of gasoline in the

refinery since 1990, calculated as follows:

[GRAPHIC][TIFF OMITTED]TR04AU95.005

Where:

CSHI=highest annual average crude slate per paragraph

(b)(1)(v)(A)(2)(ii) of this section

CS90=1990 annual average crude slate sulfur per paragraph

(b)(1)(v)(A)(2)(i) of this section

CS%CHG=percent change in average sulfur content of crude slate; and

(vii) Can show that gasoline sulfur changes are directly and solely

attributable to the crude sulfur change, and not due to alterations in

refinery operation nor choice of products.

(2) The adjusted baseline sulfur value shall be calculated as

follows:

(i) Determine the average sulfur content (ppm) of the crude slate

utilized in the production of gasoline in the refinery in 1990;

(ii) Determine the highest crude sulfur level (ppm) of the crude

slate utilized in the production of gasoline in the refinery in 1994;

and

(iii) Determine the adjusted baseline sulfur value as follows:

[GRAPHIC][TIFF OMITTED]TR04AU95.006

Where:

ASULF=adjusted baseline sulfur value, ppm

BSULF=actual baseline sulfur value, ppm

CSHI=highest crude sulfur (ppm) per paragraph (b)(1)(v)(A)(2)(ii) of

this section

CS90=1990 annual average crude slate sulfur per paragraph

(b)(1)(v)(A)(2)(i) of this section

(3) In no case can the adjusted baseline sulfur value determined

per paragraph (b)(1)(v)(A)(2) of this section exceed the sulfur value

specified in Sec. 80.91(c)(5)(iii).

(4) All adjustments made pursuant to this paragraph (b)(1)(v) must

be accompanied by:

(i) Unadjusted and adjusted fuel parameters and emissions; and

(ii) A narrative describing the situation, the types of

calculations, and the reasoning supporting the types of calculations

done to determine the adjusted values.

(B) Annual average levels of sulfur shall not exceed 125% of the

refiner's compliance baseline of sulfur, using the adjusted baseline

determined under paragraph (b)(1)(v)(A) of this section.

* * * * *

[FR Doc. 95-18992 Filed 8-3-95; 8:45 am]

BILLING CODE 6560-50-P