Regulation of Fuels and Fuel Additives: Extension of the Reformulated Gasoline Program To the St. Louis, Missouri Moderate Ozone Nonattainment Area

SUMMARY: Under section 211(k)(6) of the Clean Air Act, as amended

(Act), the Administrator of EPA must require the sale of reformulated

gasoline (RFG) in ozone nonattainment areas upon the application of the

governor of the state in which the nonattainment area is located. This

final action extends the Act's prohibition against the sale of

conventional (i.e., non-reformulated) gasoline in RFG areas to the St.

Louis, Missouri moderate ozone nonattainment area. The Agency will

implement this prohibition on May 1, 1999, for all persons other than

retailers and wholesale purchaser-consumers (i.e., refiners, importers,

and distributors). For retailers and wholesale purchaser-consumers,

EPA's final action implements the prohibition on June 1, 1999, as

requested by Governor Mel Carnahan of the state of Missouri. On June 1,

1999, the St. Louis ozone nonattainment area will be a covered area for

all purposes in the federal RFG program.

DATES: This final rule is effective February 25, 1999.

ADDRESSES: Materials relevant to this document have been placed in

Docket A-98-38. The docket is located at the Air Docket Section, Mail

Code 6102, U.S. Environmental Protection Agency, 401 M Street, SW,

Washington, DC 20460, in room M-1500 Waterside Mall. Documents may be

inspected from 8:00 a.m. to 5:30 p.m. A reasonable fee may be charged

for copying docket materials.

An identical docket is also located in EPA's Region VII office in

Docket A-98-38. The docket is located at 726 Minnesota Avenue, Kansas

City, Kansas, 66101. In Region VII contact Wayne G. Leidwanger at (913)

551-7607 or Royan Teter at (913) 551-7609. Documents may be inspected

from 9:00 a.m. to noon and from 1:00--4:00 p.m. A reasonable fee may be

charged for copying docket material.

FOR FURTHER INFORMATION CONTACT: Karen Smith at U.S. Environmental

Protection Agency, Office of Air and Radiation, 401 M Street, SW

(6406J), Washington, DC 20460, (202) 564-9674.

SUPPLEMENTARY INFORMATION: Under section 211(k)(6) of the Clean Air

Act, as amended (Act), the Administrator of EPA must require the sale

of reformulated gasoline in an ozone nonattainment area classified as

Marginal, Moderate, Serious, or Severe upon the application of the

governor of the state in which the nonattainment area is located. This

final action extends the prohibition set forth in section 211(k)(5)

against the sale of conventional (i.e., non-reformulated) gasoline to

the St. Louis, Missouri moderate ozone nonattainment area. The Agency

is finalizing the implementation date of the prohibition described

herein to take effect on May 1, 1999 for all persons other than

retailers and wholesale purchaser-consumers (i.e., refiners, importers,

and distributors). For retailers and wholesale purchaser-consumers, EPA

is finalizing the implementation of the prohibition described herein to

take effect June 1, 1999 as requested by Governor Mel Carnahan of the

state of Missouri. As of the implementation date for retailers and

wholesale purchaser-consumers, the St. Louis ozone nonattainment area

will be a covered area for all purposes in the federal RFG program.

The final preamble and regulatory language are also available

electronically from the EPA internet Web site. This service is free of

charge, except for any cost you already incur for internet

connectivity. A copy of the Federal Register version is made available

on the day of publication on the primary Web site listed below. The EPA

Office of Mobile Sources also publishes these final notices on the

secondary Web site listed below.

Internet (Web)

http://www.epa.gov/docs/fedrgstr/EPA-AIR/

(either select desired date or use Search feature)

http://www.epa.gov/OMSWWW/

(look in What's New or under the specific rulemaking topic)

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.

Regulated entities: Entities potentially regulated by this action

are those which produce, supply or distribute motor gasoline. Regulated

categories and entities include:

------------------------------------------------------------------------

Category/examples regulated

entities U.S. NAICS title NAIC code

------------------------------------------------------------------------

Petroleum Refiners.......... Petroleum Refiners.. 324110.

Motor vehicle gasoline Petroleum Bulk 422710.

distributors. Stations and

Terminals.

Motor vehicle gasoline Petroleum and 4227, 422720.

distributors. Petroleum Products

Wholesalers.

Retailers................... Gasoline Stations... 447, 4471.

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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

Sec. 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.

The remainder of this final rulemaking is organized in the

following sections:

I. Background

A. Clean Air Act Opt-in Provision

B. EPA Procedures and Missouri Opt-In Request

II. Action

III. Response to Comments

A. Comments Regarding Gasoline Supply

B. Comments on State Oxygen Content Standard

C. Comments on Regulatory Flexibility Analysis

IV. Environmental Impact

V. Administrative Designation and Regulatory Analysis

A. Executive Order 12866

B. Regulatory Flexibility

C. Executive Order 12875: Enhancing Intergovernmental

Partnerships

D. Executive Order 13084: Consultation and Coordination with

Indian Tribal Governments

E. Unfunded Mandates

[[Page 10367]]

F. Paperwork Reduction Act

G. Children's Health Protection

H. National Technology Transfer and Advancement Act of 1995

(NTTAA)

I. Statutory Authority

J. Judicial Review

K. Submission to Congress

I. Background

A. Clean Air Act Opt-in Provision

As part of the Clean Air Act Amendments of 1990, Congress added a

new subsection (k) to section 211 of the Act. Subsection (k) prohibits

the sale of gasoline that EPA has not certified as reformulated

(``conventional gasoline'') in the nine worst ozone nonattainment areas

beginning January 1, 1995. Section 211(k)(10)(D) defines the areas

covered by the reformulated gasoline (RFG) program as the nine ozone

nonattainment areas having a 1980 population in excess of 250,000 and

having the highest ozone design values during the period 1987 through

1989.\1\ Under section 211(k)(10)(D), any area reclassified as a severe

ozone nonattainment area under section 181(b) is also to be included in

the RFG program, such as Sacramento, California. EPA first published

final regulations for the RFG program on February 16, 1994. See 59 FR

7716.

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\1\ Applying these criteria, EPA has determined the nine covered

areas to be the metropolitan areas including Los Angeles, Houston,

New York City, Baltimore, Chicago, San Diego, Philadelphia, Hartford

and Milwaukee.

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Other ozone nonattainment areas may be included in the program at

the request of the Governor of the state in which the area is located.

Section 211(k)(6)(A) provides that upon the application of a Governor,

EPA shall apply the prohibition against selling conventional gasoline

in ``any area in the State classified under subpart 2 of Part D of

Title I as a Marginal, Moderate, Serious or Severe'' ozone

nonattainment area. Subparagraph 211(k)(6)(A) further provides that EPA

is to apply the prohibition as of the date the Administrator ``deems

appropriate, not later than January 1, 1995, or 1 year after such

application is received, whichever is later.'' In some cases the

effective date may be extended for such an area as provided in section

211(k)(6)(B) based on a determination by EPA that there is

``insufficient domestic capacity to produce'' RFG. Finally, EPA is to

publish a governor's application in the Federal Register.

Although section 211(k)(6) provides EPA discretion to establish the

effective date for this prohibition to apply to such areas, EPA does

not have discretion to deny a Governor's request. Therefore, the scope

of EPA's Notice of Proposed Rulemaking (NPRM) was limited to proposing

an effective date for St. Louis' opt-in to the RFG program. EPA

solicited comments addressing the proposed implementation date and

stated in the NPRM that it was not soliciting comments that supported

or opposed St. Louis' participating in the RFG program.

B. EPA Procedures and Missouri Opt-in Request

EPA received an application July 13, 1998 from the Honorable Mel

Carnahan, Governor of the State of Missouri, for the St. Louis moderate

ozone nonattainment area to be included in the reformulated gasoline

program. The Governor requested an implementation date of June 1, 1999.

EPA published the Governor's letter in the Federal Register, as

required by section 211(k)(6). On September 15, 1998 (63 FR 49317) EPA

proposed to extend the RFG program to the St. Louis moderate ozone

nonattainment area by setting two implementation dates. EPA proposed an

effective date of May 1, 1999 for refiners, importers, and distributors

and June 1, 1999 for retailers and wholesale purchaser-consumers. Today

EPA is taking final action on that NPRM and establishing these

effective dates for St. Louis' opt in to the RFG program.

After publication of the NPRM, EPA did not receive a request for a

public hearing. Since EPA did not receive a request for a public

hearing, the scheduled hearing was canceled and the comment period

ended on October 15, 1998.

II. Action

Pursuant to the governor's letter and the provisions of section

211(k)(6), EPA is today adopting regulations that apply the

prohibitions of subsection 211(k)(5) to the St. Louis, Missouri

moderate ozone nonattainment area as of May 1, 1999, for all persons

other than retailers and wholesale purchaser-consumers. This date

applies to the refinery level and all other points in the distribution

system other than the retail level. For retailers and wholesale

purchaser-consumers, EPA is adopting regulations that apply the

prohibitions of subsection 211(k)(5) to the St. Louis, Missouri ozone

nonattainment area on June 1, 1999. As of the June 1, 1999

implementation date, this area will be treated as a covered area for

all purposes of the federal RFG program.

EPA believes the implementation dates adopted today not only

respond to the Governor's request, but also achieve a reasonable

balance between requiring the earliest possible start date to achieve

air quality benefits in St. Louis and providing adequate lead time for

industry to prepare for program implementation. These dates are

consistent with the State's request that EPA require that RFG be sold

in the St. Louis area at the beginning of the high ozone season, which

begins June 1. These dates will provide environmental benefits by

allowing St. Louis to achieve VOC reduction benefits for the 1999 VOC

control season.

EPA has concluded, based on its analysis of available information,

including public comments received and discussed below (see III.

Response to Comments), that the refining and distribution industry's

capacity to supply federal RFG to St. Louis this summer exceeds the

estimated demand. EPA has also concluded that the implementation dates

adopted today provide adequate lead time to industry to set up storage

and sales agreements to ensure supply of RFG to the St. Louis moderate

ozone nonattainment area.

III. Response to Comments

Only one party, an association representing the interests of

independent gasoline marketers, submitted comments on the proposed

rulemaking. The comments addressed three particular concerns. EPA is

responding to each of these comments in this section.

A. Comments Regarding Gasoline Supply

First, the commentor stated that EPA ignored the fact that the St.

Louis metropolitan statistical area (MSA) extends into Illinois, an

area that has its own summertime gasoline control (a Reid Vapor

Pressure control of 7.2 psi). The commentor expressed concern that

gasoline shortages in the St. Louis area could result from EPA's

granting of the opt-in request, due to the need to supply three

different gasolines (conventional gasoline, reformulated gasoline and

conventional gasoline meeting the IL summertime gasoline standard) to

the St. Louis MSA and surrounding counties.

Section 211(k)(6)(A) provides the Administrator broad discretion to

establish an appropriate effective date for opt-in areas. The effective

date shall be no later than one year after the governor's request to

opt in is received, which in this case would be July 13, 1999. Factors

EPA generally considers in setting effective dates include, but are not

limited to, supply logistics, cost, potential price spikes, the number

of current and potential suppliers for that market, whether such

suppliers have experience producing RFG or the capability to produce

RFG, intent of

[[Page 10368]]

suppliers to withdraw from the market, availability of adequate

gasoline volumes, and the amount of lead time needed by suppliers and

the distribution industry to set up storage and sales agreements to

ensure supply. By evaluating these factors, EPA can make a

determination as to whether industry's capacity to supply RFG for an

opt-in area meets or exceeds the demand.

As the commentor noted, under section 211(k)(6)(B) the

Administrator may determine, after consultation with the Secretary of

Energy, that there is ``insufficient domestic capacity'' to produce

RFG. EPA is not making such a determination in this case. EPA has

consulted with the Department of Engergy (DOE) and has concluded that

there is adequate domestic capability to produce RFG to meet the

current demand nationwide as well as the addition of the St. Louis area

in the summer of 1999. The commentor provided no evidence to the

contrary and no comments were received from bulk terminal operators

concerned about storage capacity or supply.

Based on the Energy Information Administration's (EIA) preliminary

calculations (Docket A-98-38, II-D-02) using survey data and demand

estimates, there are adequate RFG supplies for the areas currently

considering opting in to the program. An estimated 63 thousand barrels

per day of gasoline are required in St. Louis which could be covered by

industry's current capacity to supply roughly an extra 300 thousand

barrels per day of RFG in the eastern half of the U.S.

EIA's information also demonstrates that St. Louis has the capacity

to store about 25 days supply of gasoline and distillate, well within

the industry standard of between 20 and 29 days supply of gasoline and

distillate. The area has a 3,200 thousand-barrel storage capacity.

The Missouri Department of Natural Resources convened a fuels

summit in June 1998 to discuss various fuels options. EPA notes that no

comments regarding supply concerns were made during the fuels summit

held in St. Louis June 15-16, 1998. The final report issued by the

facilitator of the fuels summit described the stakeholders' conclusions

that RFG offered the benefit of continuity and stability, that the

product is already in production, and that surplus capacity is

available (see Docket A-98-38, II-D-03).

The commentor expressed concern that the price differential between

gasoline meeting Illinois' summertime RVP standard and RFG would lead

to marketers providing different gasolines to meet each requirement.

EPA data from the 1998 RFG compliance surveys indicates that RFG sold

in the southern region of the country, on average, meets the 7.2 p.s.i

standard that applies in East St. Louis. In any event, EPA believes

that refiners can produce a single fuel which will meet both the low

RVP requirements of the East St. Louis area and the fuel specifications

of the RFG program. In addition, EPA notes that, in this action, it is

simply setting an effective date for the St. Louis opt in, and does not

have the discretion under Section 211(k)(6) to deny the governor's

request to opt in. Therefore, even if a price differential would result

in marketers' choosing to provide different gasolines to the Missouri

portion of the St. Louis metropolitan area than to the Illinois

portion, that result would not provide a basis for EPA's denial of the

governor's request. Moreover, EPA is setting the effective date for the

opt in close to one year from receipt of the governor's request.

Postponing the effective date for two months (i.e., to approximately

one year from receipt of the request) would likely not affect any price

differential that may exist, and would result in the loss of important

and needed emissions reductions for the summer of 1999.

B. Comments on State Oxygen Content Standard

The commentor's second issue of concern is Missouri's interest in

modifying or adopting a state regulation to increase the oxygenate

content in RFG during the winter months for the five Missouri counties

which have opted into the program. The commentor states that permitting

Missouri to establish a 2.7% oxygenate requirement would essentially

mandate the use of ethanol during the winter months. The commentor

argues that this action would violate the Clean Air Act Amendments and

also violates EPA's own stated policy regarding federal preemption and

neutrality in oxygenate use.

Missouri's adoption of state fuel controls in addition to its opt-

in to RFG is not relevant to establishing the effective date of the RFG

program in St. Louis, which is the action being taken today. The agency

does not have discretion under the Act to second guess the state's

policy choice and deny the opt-in. Moreover, EPA has no authority to

approve or disapprove a state fuel regulation if the state does not

seek approval for the regulation through a section 211(c)(4)(C) waiver

or ask that the regulation be approved into their state implementation

plan. Therefore, the issue of whether the state decides to

independently pursue an oxygenate requirement on top of the RFG program

is not an issue in this rulemaking.

C. Comments on Regulatory Flexibility Analysis

Finally, the commentor questions EPA's decision not to prepare a

regulatory flexibility analysis in connection with this rulemaking. The

commentor argues that if RFG is introduced in the Missouri counties of

the St. Louis MSA without an examination of the potential supply impact

on surrounding ozone nonattainment areas and attainment counties, many

small businesses, including independent gasoline marketers, will be

adversely affected and gasoline prices will rise.

As noted in Section VI. B of this final rule, EPA has determined

that its establishment of the effective date of May 1, 1999, for the

St. Louis RFG opt in does not have a significant economic impact on a

substantial number of small businesses. In promulgating the RFG and

anti-dumping regulations, the Agency analyzed the impact of the

regulations on small businesses. The Agency concluded that the

regulations would not significantly affect small entities, such as

gasoline blenders, terminal operators or service stations. See 59 FR

7810-7811 (February 16, 1994). Moreover, all businesses, large and

small, maintain the option to produce conventional gasoline to be sold

in areas not covered by the RFG program. In addition, EPA does not have

discretion to deny the governor's opt in request, but simply to set an

effective date as described in Section 211(k)(6). Therefore, the impact

relevant for this action is the impact, if any, on small entities of

setting the effective date of May 1, 1999, not the impact of the

State's decision to opt into the RFG program.

The association commenting on this rulemaking challenged EPA's

assertion in the NPRM that it is not necessary to prepare an additional

regulatory flexibility analysis in connection with this rule. The

association, which represents small independent gasoline marketers

(retail outlets), argued that these small entities would experience a

significant negative economic impact as a result of this proposed rule.

They went on to say that if the EPA does not perform a more in-depth

analysis of the gasoline supply consequences of the Missouri opt-in

petition to assure that available supplies of all three St. Louis area

fuels will be adequate, then the economic impact on a substantial

number of small entities will be enormous.

[[Page 10369]]

In response to this comment with respect to EPA's responsibility

under the Regulatory Flexibility Act, it is important to first outline

the requirements to refiners, bulk terminal operators and small

retailers under the RFG program.

Refiners carry the greatest level of burden when an area chooses to

opt into the RFG program. Refiners must carry out a program of

independent sample collection and analysis to establish the gasoline

parameters reported to EPA. The independent lab must collect every

sample. However, the refiner can have the lab test 100% of the samples

or 10% of the samples and test the remainder themselves.

Refiners are also required to meet regulations for segregating RFG

from conventional gasoline and other blendstocks which may require some

additional tankage. Product transfer documents must accompany RFG

batches to assure its compliance with EPA regulations. It is important

to note that no refiners commented on this rulemaking. In fact, during

the fuel summit the RFG option was highlighted for its ease of

implementation (See Air Docket, A-98-39, II-D-03).

Bulk terminals have some oversight regulations including the

maintenance of product transfer documents for up to five years. Bulk

terminals are also responsible for segregation of RFG from conventional

gasoline and other blendstocks. Bulk terminals are required to follow

EPA regulations for the transition from winter time to summer time

gasoline. As the presumptive liability is the same for refiners,

terminal owners and retailers, some bulk terminals may choose to

conduct their own quality assurance testing. No bulk terminal operators

or owners commented on this final rule.

It remains EPA's position that compliance with the requirements of

the RFG rule creates only minimal burdens for gasoline retailers.

Retailers have no reporting requirements, although they are required to

maintain product transfer documents for five years. Maintaining product

transfer documents is a customary business practice as the same

documents are maintained for relevant tax purposes. Unlike other

parties, retailers have no quality assurance testing requirements.

Among other things, retailers are required to ensure a smooth

transition between winter time and summer time gasoline, however this

requirement is also necessary under the requirements of EPA's

volatility regulations so no modification to current practices is

necessary. Retailers are also prohibited from commingling RFG

containing Methyl Tertiary Butyl Ether (MTBE) with RFG containing

ethanol. Retailers must also assure that conventional gasoline (CG) is

not sold in an opt-in area. This can be achieved by carefully

monitoring product transfer documents and refusing any gasoline which

is labeled as conventional gasoline.

For the St. Louis area in particular, the Agency does not agree

with the commentor's arguments regarding supply concerns and their

effect on small entities. As described in Section III.A. of this

notice, EPA has concluded that there will be sufficient supplies of RFG

to meet the demand in St. Louis. Our most recent analysis indicates

that the St. Louis area maintains a capacity to store 4.63 million

barrels of product at five companies operating bulk terminal facilities

in the St. Louis area.2 Since the commentor's concern about

small entity impacts is based on concerns about adequate supplies,

EPA's conclusion that adequate supply does exist supports the Agency's

finding that setting the effective date of May 1, 1999, for the St.

Louis opt in does not have a significant impact on a substantial number

of small entities. A complete analysis of the effect of the RFG/anti-

dumping regulations on small businesses is contained in the Regulatory

Flexibility Analysis which was prepared for the RFG and anti-dumping

rulemaking, and can be found in the docket for that rulemaking (Docket

No. A-92-12).

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\2\ The Petroleum Terminal Encyclopedia, 1997, published by Oil

Price Information Service

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IV. Environmental Impact

The federal RFG program provides reductions in ozone-forming VOC

emissions, air toxics, and starting in 2000, oxides of nitrogen

(NOX). Reductions in VOCs and NOX are

environmentally significant because they lead to reductions in ozone

formation and in secondary formation of particulate matter, with the

associated improvements in human health and welfare. Exposure to

ground-level ozone (or smog) can cause respiratory problems, chest

pain, and coughing and may worsen bronchitis, emphysema, and asthma.

Studies suggest that long-term exposure (months to years) to ozone can

damage lung tissue and may lead to chronic respiratory illness.

Reductions in emissions of toxic air pollutants are environmentally

important because they carry significant benefits for human health and

welfare primarily by reducing the number of cancer cases each year.

Missouri's modeling estimates that once federal RFG is required to

be sold in St. Louis, VOC emissions will be cut by an additional 5.53

tons/day over the VOC reductions from its current low volatility (RVP)

gasoline requirement of 7.0 psi. In addition, all vehicles will have

improved emissions and the area will also get reductions in toxic

emissions.

V. Administrative Designation and Regulatory Analysis

A. Executive Order 12866

Under Executive Order 12866,3 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:

---------------------------------------------------------------------------

\3\ See 58 FR 51735 (October 4, 1993).

---------------------------------------------------------------------------

(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.4

---------------------------------------------------------------------------

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

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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.

B. Regulatory Flexibility

EPA has determined that it is not necessary to prepare a regulatory

flexibility analysis in connection with this rule. EPA has also

determined that this rule would not have a significant economic impact

on a substantial number of small entities.

In promulgating the RFG and the related anti-dumping regulations,

the Agency analyzed the impact of the regulations on small businesses.

The Agency concluded that the regulations could have some economic

effect on a substantial number of small refiners, but that the

regulations would 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). A complete

[[Page 10370]]

analysis of the effect of the RFG/anti-dumping regulations on small

businesses is contained in the Regulatory Flexibility Analysis which

was prepared for the RFG and anti-dumping rulemaking, and can be found

in the docket for that rulemaking (Docket No. A-92-12).

Today's rule will affect only those refiners, importers or blenders

of gasoline that choose to produce or import RFG for sale in the St.

Louis ozone nonattainment area, and gasoline distributors and retail

stations in those areas. EPA has determined that, because of their

location, the vast majority of small refiners would be unaffected by

the RFG requirements. Most small refiners are located in the mountain

states or in California, which has its own RFG program, therefore, the

vast majority of small refiners are unaffected by the federal RFG

requirements finalized today.

Other small entities, such as gasoline distributors and retail

stations located in St. Louis, which will become a covered area as a

result of today's action, will be subject to the same requirements as

those small entities which are located in current RFG covered areas.

The St. Louis area is currently served by five companies operating bulk

terminal facilities in the St. Louis area. EPA has not evaluated

whether any of these companies would be considered small under the RFA.

Nonetheless, given the minimal regulatory burdens and the small number

of bulk terminal companies potentially subject to these RFG

requirements, EPA believes today's action will not result in a

significant impact on a substantial number of small bulk terminals. As

for gasoline retailers, as stated earlier, EPA's position remains that

the RFG rule creates only minimal burdens. The EPA believes that even

in the aggregate (i.e., considering all impacts on all of the types of

business potentially subject to regulation by today's action), approval

of the St. Louis opt-in request will not result in a significant impact

on a substantial number of small entities. Based on the foregoing

information, EPA certifies that this final rule does not have a

significant adverse impact on a substantial number of small entities.

C. Executive Order 12875: Enhancing Intergovernmental Partnerships

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a State, local

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected State, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of State, local and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on State, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of Executive

Order 12875 do not apply to this rule.

D. Executive Order 13084: Consultation and Coordination With Indian

Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected and other representatives of

Indian tribal governments ``to provide meaningful and timely input in

the development of regulatory policies on matters that significantly or

uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. Today's final rule does not

create a mandate for any tribal governments. The rule does not impose

any enforceable duties on these entities. Today's rule will affect only

those refiners, importers or blenders of gasoline that choose to

produce or import RFG for sale in the St. Louis ozone nonattainment

area, and gasoline distributors and retail stations in those areas.

Accordingly, the requirements of section 3(b) of Executive Order 13084

do not apply to this rule.

E. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``UMRA''), P.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 in any one year. Under Section 205, for

any rule subject to Section 202 EPA generally must select the least

costly, most cost-effective, 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 today's rule 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.

F. Paperwork Reduction Act

This action does not add any new requirements under the provisions

of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The Office of

Management and Budget (OMB) has approved the information collection

requirements that apply to the RFG/anti-dumping program, and has

assigned OMB control number 2060-0277 (EPA ICR NO. 1591.10).

Burden means the total time, effort, or financial resources

expended by persons to generate, maintain, retain, or disclose or

provide information to or for a Federal agency. This includes the time

needed to review instructions; develop, acquire, install, and utilize

technology and systems for the purposes of collecting, validating, and

verifying information, processing and maintaining information, and

disclosing and providing information; adjust the existing ways to

comply with any

[[Page 10371]]

previously applicable instructions and requirements; train personnel to

be able to respond to a collection of information; search data sources;

complete and review the collection of information; and transmit or

otherwise disclose the information. An Agency may not conduct or

sponsor, and a person is not required to respond to a collection of

information unless it displays a currently valid OMB control number.

The OMB control numbers for EPA's regulations are listed in 40 CFR Part

9 and 48 CFR Chapter 15.

G. Children's Health Protection

This rule is not subject to E.O. 13045, entitled ``Protection of

Children from Environmental Health Risks and Safety Risks'' (62FR19885,

April 23, 1997), because it does not involve decisions on environmental

health risks or safety risks that may disproportionately affect

children. This action will reduce Nox and VOC emissions which are

precursors to ozone. This action will benefit children.

H. National Technology Transfer and Advancement Act of 1995 (NTTAA)

Section 12(d) of the National Technology Transfer and Advancement

Act of 1995 (NTTAA), Pub L. No. 104-113, 12(d) (15 U.S.C. 272 note)

directs 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. The NTTAA directs EPA to provide

Congress, through OMB, explanations when the Agency decides not to use

available and applicable voluntary consensus standards.

This rulemaking does not involve technical standards. Therefore,

EPA is not considering the use of any voluntary consensus standards.

I. Statutory Authority

The Statutory authority for the final action today is granted to

EPA by sections 211(c) and (k) and 301 of the Clean Air Act, as

amended; 42 U.S.C. 7545 (c) and (k) and 7601.

J. Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action to extend the federal RFG program to the

St. Louis ozone nonattainment area must be filed in the United States

Court of Appeals for the appropriate circuit by [date of

Administrator's signature + 60 days]. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the finality of this rule for the purposes of judicial review nor does

it extend the time within which a petition for judicial review my be

filed, and shall not postpone the effectiveness of such rule or action.

This action may not be challenged later in proceedings to enforce its

requirements. (See section 307(b)(2)).

K. Submission to Congress

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, 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

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

List of Subjects in 40 CFR Part 80

Environmental protection, Air pollution control, Fuel additives,

Gasoline, Motor vehicle pollution.

Dated: February 25, 1999.

Carol M. Browner,

Administrator.

40 CFR part 80 is amended as follows:

PART 80--REGULATION OF FUELS AND FUEL ADDITIVES

1. The authority citation for part 80 is revised to read as

follows:

Authority: Secs. 114, 211, and 301(a) of the Clean Air Act, as

amended (42 U.S.C. 7414, 7545 and 7601(a)).

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

follows:

Sec. 80.70 Covered areas.

* * * * *

(n) The prohibitions of section 211(k)(5) of the act will apply to

all persons other than retailers and wholesale purchaser-consumers on

May 1, 1999. The prohibitions of section 211(k)(5) of the act will

apply to retailers and wholesale purchaser-consumers on June 1, 1999.

As of the effective date for retailers and wholesale purchaser-

consumers, the St. Louis, Missouri ozone nonattainment area is a

covered area. The geographical extent of the covered area listed in

this paragraph shall be the nonattainment boundaries for the St. Louis

ozone nonattainment area as specified in 40 CFR 81.326.

[FR Doc. 99-5233 Filed 3-2-99; 8:45 am]

BILLING CODE 6560-50-P