[Federal Register Volume 70, Number 2 (Tuesday, January 4, 2005)]
[Proposed Rules]
[Pages 646-660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-43]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[OAR-2003-0010; FRL-7857-1]
RIN 2060-AK02
Regulation of Fuels and Fuel Additives: Modification of Anti-
Dumping Baselines for Gasoline Produced or Imported for Use in Hawaii,
Alaska and U.S. Territories
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Today's action proposes to allow refiners and importers who
produce or import conventional gasoline for use in Alaska, Hawaii, the
Commonwealth of Puerto Rico and the Virgin Islands to change the way
that they calculate emissions from such gasoline for purposes of
calculating their conventional gasoline anti-dumping baselines and
evaluating annual average emissions. Specifically, for gasoline sold in
these areas, refiners and importers could elect to modify their
baselines to replace the anti-dumping statutory baseline with the
single seasonal statutory baseline that is most appropriate to the
regional climate, and to use the seasonal component of the Complex
Model that is most appropriate to the regional climate to calculate
individual baselines and annual average emissions. This action would
allow refiners and importers to petition EPA to use the summer
statutory baseline and the summer Complex Model for all anti-dumping
baseline and compliance calculations for conventional gasoline produced
or imported for use in Hawaii, Puerto Rico and the Virgin Islands and
would allow refiners and importers to petition EPA to use the winter
statutory baseline and the winter Complex Model for all anti-dumping
baseline and compliance calculations for conventional gasoline produced
or imported for use in Alaska. We are proposing these actions to
address certain inconsistencies in the RFG program's anti-dumping
provisions which may have significant unintended negative impacts on
refiners and importers who produce or import gasoline for these areas.
Today's action would also extend similar seasonal baseline and
compliance modifications to the provisions applicable to conventional
gasoline under Gasoline Toxics, also known as the Mobile Source Air
Toxics rule, or MSAT.
DATES: Comments must be received on or before February 3, 2005.
ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2003-
0010 by one of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
2. Agency Web site: http://www.epa.gov/edocket. EDOCKET, EPA's
electronic public docket and comment system, is EPA's preferred method
for receiving comments. Follow the on-line instructions for submitting
comments.
3. E-mail: http://www.epa.gov/edocket, Attention Docket ID No. OAR-
2003-0010.
4. Mail: Air and Radiation Docket, Environmental Protection Agency,
Mailcode: 6406J, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Please include a total of two copies. In addition, please mail a copy
of your comments on the information collection provisions to the Office
of Information and Regulatory Affairs, Office of Management and Budget
(OMB), Attn: Desk Officer for EPA, 725 17th St., NW., Washington, DC
20503.
5. Hand Delivery: EPA Docket Center, Environmental Protection
Agency, 1301 Constitution Avenue, NW., Room B102, Mail Code 6102T,
Washington, DC 20460. Such deliveries are only accepted during the
Docket's normal hours of operation, and special arrangements should be
made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. OAR-2003-0010.
EPA's policy is that all comments received will be included in the
public docket without change and may be made available online at http://www.epa.gov/edocket, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information
[[Page 647]]
(CBI) or other information whose disclosure is restricted by statute.
Do not submit information that you consider to be CBI or otherwise
protected through EDOCKET, regulations.gov, or e-mail. The EPA EDOCKET
and the Federal regulations.gov Web sites are ``anonymous access''
systems, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an e-mail comment directly to EPA without going through EDOCKET or
regulations.gov, your e-mail address will be automatically captured and
included as part of the comment that is placed in the public docket and
made available on the Internet. If you submit an electronic comment,
EPA recommends that you include your name and other contact information
in the body of your comment and with any disk or CD-ROM you submit. If
EPA cannot read your comment due to technical difficulties and cannot
contact you for clarification, EPA may not be able to consider your
comment. Electronic files should avoid the use of special characters,
any form of encryption, and be free of any defects or viruses. For
additional information about EPA's public docket visit EDOCKET on-line
or see the Federal Register of May 31, 2002 (67 FR 38102).
Docket: All documents in the docket are listed in the EDOCKET index
at http://www.epa.gov/edocket. Although listed in the index, some
information is not publicly available, i.e., 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 in EDOCKET or in hard
copy at the Air and Radiation Docket, EPA/DC, EPA West, Room B102, 1301
Constitution Ave., NW., Washington, DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the Air and Radiation Docket is
(202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Marilyn Bennett, Transportation and
Regional Programs Division, Office of Transportation and Air Quality
(6406J), Environmental Protection Agency, 1200 Pennsylvania Avenue,
NW., Washington, DC 20460; telephone number: (202) 343-9624; fax
number: (202) 343-2803; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
Entities potentially affected by this action include those involved
with the production and importation of conventional gasoline motor
fuel. Regulated categories and entities affected by this action
include:
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NAICS codes
Category \a\ SIC codes \b\ Examples of potentially regulated parties
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Industry......................... 324110 2911 Petroleum Refiners, Importers.
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\a\ North American Industry Classification System (NAICS).
\b\ Standard Industrial Classification (SIC) system code.
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 be potentially regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your entity is regulated by this action, you should carefully examine
the applicability criteria of Part 80, subparts D, E and F of title 40
of the Code of Federal Regulations. If you have any question regarding
applicability of this action to a particular entity, consult the person
in the preceding FOR FURTHER INFORMATION CONTACT section above.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
EDOCKET, regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI). In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
2. Follow directions--The agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline
identified.
3. Docket Copying Costs. You may be charged a reasonable fee for
photocopying docket materials, as provided in 40 CFR Part 2.
D. Outline of This Preamble
I. General Information
II. Background
III. Anti-dumping Compliance for Gasoline Produced or Imported for
Use in Alaska, Hawaii, Puerto Rico and the Virgin Islands
IV. Mobile Source Air Toxics Rule (MSAT)
V. Public Participation
VI. Statutory and Executive Order Reviews
VII. Statutory Provisions and Legal Authority
II. Background
A. The Anti-Dumping Requirements
Section 211(k) of the Clean Air Act (``CAA'' or ``Act'') requires
EPA to establish standards for reformulated gasoline (RFG) to be used
in specified ozone nonattainment areas. The Act also requires non-
reformulated, or conventional, gasoline used in the rest of the country
to be as clean as the gasoline produced or imported in 1990.
[[Page 648]]
CAA Section 211(k)(8). The requirements for conventional gasoline are
called the anti-dumping requirements. The anti-dumping requirements
prevent refiners from dumping into conventional gasoline the dirty
gasoline components that are removed when RFG is produced. To be in
compliance with the anti-dumping requirements, the exhaust toxics and
nitrogen oxides (NOX) emissions performance of a refinery's
or importer's conventional gasoline must be no dirtier than the
refinery's or importer's 1990 exhaust toxics and NOX
emissions performance, on an annual average basis.
EPA requires refiners to calculate the exhaust toxics and
NOX emissions performance of gasoline using the Complex
Model. The Complex Model is a predictive model used to determine
emissions based on several fuel parameters, such as sulfur, benzene and
Reid vapor pressure (RVP). See 40 CFR 80.45. The Complex Model has both
a summer version and a winter version.\1\ The summer Complex Model is
based on data reflecting the performance of gasoline sold in the
summer; i.e., gasoline with lower RVP to comply with volatility
requirements at 40 CFR 80.27 and which is typical of summer climatic
conditions. The winter Complex Model is a modified version of the
summer model which sets the RVP at 8.7 psi and adjusts for winter
climate conditions. Both models are based on MOBILE model outputs.\2\
MOBILE model outputs for the summer model assume ambient temperatures
of 69 deg. F to 94 deg. F. MOBILE model outputs for the winter model
assume ambient temperatures of 39 deg. F to 57 deg. F. MOBILE model
outputs show significantly greater ``winter'' emissions due to longer
engine and catalyst warm-up times. As a result, for identical fuel
compositions (based on those fuel parameters evaluated in the Complex
Model), the winter Complex Model results in significantly higher
emissions of exhaust toxics and NOX than the summer Complex
Model, on a mg/mile basis.
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\1\ A detailed discussion of the development of the summer and
winter versions of the Complex Model is included in the Final
Regulatory Impact Analysis for Reformulated Gasoline (December 13,
1993). Public Docket No. A-92-12.
\2\ For a discussion of the MOBILE Model, see the Regulatory
Impact Analysis for the final RFG rule, December 13, 1993.
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B. Compliance With the Anti-Dumping Requirements
The anti-dumping regulations require refineries and importers of
conventional gasoline to comply with an established baseline for
exhaust toxics and NOX. The baseline will be either an
``individual baseline'' or the ``anti-dumping statutory baseline.'' An
individual baseline is based on the average performance of the gasoline
that the individual refinery or importer produced or imported during
the calendar year 1990. The anti-dumping statutory baseline is based on
the average quality of gasoline sold throughout the United States
during 1990. The anti-dumping statutory baseline applies to refineries
and importers that are unable to calculate an individual baseline based
on 1990 gasoline performance. If a refinery or importer has an
individual baseline, gasoline production during a given annual
averaging period, up to the refinery's or importer's 1990 production or
import volume, must be no ``dirtier'' than the refinery's or importer's
individual 1990 baseline for exhaust toxics and NOX.
Gasoline produced or imported during the annual averaging period in
excess of the refinery's or importer's 1990 gasoline production or
import volume must be no dirtier than the anti-dumping statutory
baseline for exhaust toxics and NOX. For refineries and
importers that are subject to the anti-dumping statutory baseline, all
gasoline produced or imported during the annual averaging period must
meet the anti-dumping statutory baseline for exhaust toxics and
NOX.
Requiring compliance with the anti-dumping statutory baseline for
gasoline production in excess of the refinery's or importer's 1990
gasoline production volume is intended to prevent the overall
degradation of the conventional gasoline pool as a result of increased
production by refineries with individual baselines that are dirtier
than the 1990 national average, and/or decreased production by
refineries with individual baselines that are cleaner than the 1990
national average. See 57 FR 13487-88 (April 16, 1992). Requiring
compliance with the anti-dumping statutory baseline for gasoline
produced by refineries and importers who are unable to establish an
individual baseline is intended to ensure that such gasoline will not
degrade the conventional gasoline pool compared to the 1990 average.
To comply with the anti-dumping requirements, each refinery and
importer must evaluate the overall quality of the conventional gasoline
that it produces or imports during each annual averaging period. The
refinery or importer must then compare the quality of its conventional
gasoline to the refinery's or importer's baseline (individual 1990
baseline or anti-dumping statutory baseline, as appropriate). So long
as the conventional gasoline produced or imported has overall
emissions, as calculated by the Complex Model, that are no worse than
the performance reflected in the refinery's or importer's baseline, the
refinery or importer is in compliance with EPA's anti-dumping
requirements.
The anti-dumping statutory baseline includes both summertime and
wintertime seasonal components. The Act provides the specifications for
the summertime component of the statutory baseline gasoline, and
indicates that such specifications apply to ``gasoline sold during the
high ozone period (as determined by the Administrator).''\3\ CAA
Section 211(k)(10)(B)(i). EPA determined wintertime baseline gasoline
specifications based on an estimate of the average quality of
wintertime gasoline in 1990, as required under the Act. CAA Section
211(k)(10)(B)(ii). The wintertime baseline gasoline specifications were
derived from survey data collected in representative cities in the
continental U.S.\4\ Baseline summertime and wintertime gasolines have
different average fuel parameter values because of the different
weather conditions in summer and winter and the effect of the
volatility controls on summertime gasoline. The anti-dumping statutory
baseline, which approximates the average emissions of gasoline sold in
the U.S. in 1990, is the volume-weighted average of the summertime and
wintertime baseline gasoline emissions, as calculated using the
appropriate seasonal version of the Complex Model. See 59 FR 7793
(February 16, 1994).
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\3\ EPA's volatility regulations at 40 CFR 80.27 define ``high
ozone season'' as ``the period from June 1 to September 15 of any
calendar year.'' In the preamble to the RFG final rule, EPA also
defined ``high ozone season'' as June 1 through September 15 for
purposes of compliance with the RFG and anti-dumping requirements.
EPA chose this period because it covers the vast majority of days
during which the national ambient air quality standard for ozone is
exceeded nationwide and is consistent with the period covered by
EPA's gasoline volatility control requirements. See 59 FR 7722
(February 16, 1994). The Act specifies that the volatility controls
apply only to the 48 contiguous states and the District of Columbia.
CAA Section 211(h)(5).
\4\ Winter statutory gasoline parameter values were derived by
combining data from survey samples collected in 23 continental U.S.
cities by the Southwest Research Institute (SWRI) and in 53
continental U.S. cities by the Motor Vehicle Manufacturer's
Association (MVMA). Winter baseline emissions were determined on a
nationwide basis based on this survey data. For further discussion
of the methodology used in determining the winter statutory
baseline, see 56 FR 31179 (July 9, 1991).
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[[Page 649]]
C. Calculating Individual Baselines and Annual Average Emissions
A refinery's or importer's individual 1990 baseline is calculated
using the summer version of the Complex Model to assess the performance
of the refinery's or importer's 1990 summer gasoline and the winter
version of the Complex Model to assess the performance of the
refinery's or importer's 1990 winter gasoline. For purposes of these
calculations, the regulations consider summer gasoline to be gasoline
that is subject to EPA's volatility requirements, and winter gasoline
to be gasoline that is not subject to EPA's volatility requirements. 40
CFR 80.91(e)(2)(ii)(A). Gasoline sold in the territories of Puerto Rico
and the Virgin Islands, and in Alaska and Hawaii, is not subject to the
volatility requirements.\5\ See CAA Section 211(h)(5). Thus, for
purposes of calculating a refinery's or importer's individual 1990
baseline emissions, none of the gasoline produced or imported for use
in these areas is considered summer gasoline under the current
regulations. As a result, all of the gasoline produced or imported for
use in these areas was evaluated using the winter Complex Model for
purposes of calculating individual 1990 baseline emissions.\6\
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\5\ The U.S. territories of Guam, the Commonwealth of the
Northern Mariana Islands and American Samoa also are not subject to
the volatility requirements pursuant to CAA section 211(h)(5);
however, these territories have received exemptions from the anti-
dumping requirements, and, as a result, are not affected by today's
rule. See 61 FR 53854 (October 16, 1996)(Guam); 62 FR 63853
(December 3, 1997)(Northern Mariana Islands); 65 FR 71067 (November
29, 2000)(American Samoa).
\6\ Pursuant to a rulemaking on June 9, 1999 (64 FR 30904),
refiners and importers who have Puerto Rico gasoline, or Puerto Rico
and Virgin Islands gasoline, in their individual baseline and that
sell a volume of Puerto Rican gasoline greater than their 1990
baseline volume of Puerto Rican gasoline, are allowed to petition
EPA to replace the winter Complex Model with the summer Complex
Model for anti-dumping baseline and compliance calculations. See 40
CFR 80.93(d) and 80.101(f)(4)(iii) and (g)(1)(ii)(B).
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Similarly, to determine annual average emissions for compliance
purposes, each year refineries and importers calculate emissions from
their summer gasoline using the summer Complex Model and emissions from
their winter gasoline using the winter Complex Model. For purposes of
calculating annual average emissions, the regulations specify that
summer gasoline is gasoline that meets the volatility requirements and
winter gasoline is gasoline that does not meet the volatility
requirements. 40 CFR 80.101(g)(5) and (g)(6). Because gasoline produced
or imported for use in Alaska, Hawaii, Puerto Rico and the Virgin
Islands is not subject to the volatility requirements, refineries and
importers currently are required to evaluate all of their gasoline
produced or imported for use in these areas during the annual averaging
period using the winter Complex Model.
As discussed above, refiners and importers must provide gasoline
that complies with their individual anti-dumping baseline up to their
1990 baseline volume, after which any excess volumes must comply with
the anti-dumping statutory baseline.\7\ Refiners and importers without
an individual baseline must comply with the anti-dumping statutory
baseline for all of the conventional gasoline they produce or import
during each annual averaging period.\8\ This general approach to
compliance applies to both refiners and importers of gasoline sold in
the continental U.S. and refiners and importers of gasoline produced or
imported for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands.
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\7\ For refineries and importers with individual 1990 baselines
who produce gasoline volumes in excess of their 1990 volume during
an averaging period, the regulations require the use of a specified
``compliance baseline'' equation. 40 CFR 80.101(f). In general, this
equation adjusts the refinery's or importer's individual baseline to
reflect the parameter values of the statutory baseline for that
volume of the refinery's or importer's total annual gasoline
production which is in excess of the refinery's or importer's 1990
baseline volume. This adjusted compliance baseline then is the
refinery's or importer's anti-dumping standard for that annual
averaging period, and the annual average emissions from all
conventional gasoline produced by that refinery or importer during
the annual averaging period must meet that standard.
\8\ Since most importers are unable to establish an individual
1990 baseline, importers generally are required to comply with the
anti-dumping statutory baseline.
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III. Anti-Dumping Compliance for Gasoline Produced or Imported for Use
in Alaska, Hawaii, Puerto Rico and the Virgin Islands
A. Need for Action
As discussed above, under the anti-dumping regulations, gasoline
produced or imported in excess of a refinery's or importer's 1990
baseline volume during the annual averaging period must comply with the
anti-dumping statutory baseline. All gasoline produced or imported
during each annual averaging period by refineries and importers who are
unable to establish an individual baseline also must comply with the
anti-dumping statutory baseline. In most circumstances, use of the
anti-dumping statutory baseline is an appropriate and necessary tool to
ensure that conventional gasoline quality does not degrade in
comparison to the average quality of gasoline sold in 1990. However,
the current use of the anti-dumping statutory baseline may result in
unintended and unnecessary adverse impacts on refiners and importers
who produce or import gasoline for use in Alaska, Hawaii, Puerto Rico
and the Virgin Islands that is subject to the anti-dumping statutory
baseline. For such gasoline, the current anti-dumping requirements may
result in an inconsistent application of EPA's seasonal Complex Models.
As discussed above, the anti-dumping statutory baseline is an
estimate of the average quality of 1990 gasoline. This estimate was
calculated using the summer Complex Model to evaluate gasoline sold
during the volatility control period and the winter Complex Model for
all other gasoline. For compliance purposes, conventional gasoline sold
in the continental United States is evaluated using the summer Complex
Model if it is gasoline that meets the summer volatility requirements,
and the winter Complex Model if it is gasoline that does not meet the
summer volatility requirements. Thus, for conventional gasoline sold in
the continental U.S. that is required to comply with the anti-dumping
statutory baseline, we expect there to be general agreement between the
seasonal models used to develop the baseline and the seasonal models
used to evaluate annual compliance. Accordingly, application of the
anti-dumping statutory baseline for such gasoline provides reasonable
assurance that the quality of the conventional gasoline will not
degrade relative to the average quality of gasoline in 1990.
Gasoline produced or imported for use in Alaska, Hawaii, Puerto
Rico and the Virgin Islands in excess of the refinery's or importer's
1990 baseline volume of gasoline produced or imported for use in these
areas, and all gasoline produced or imported for use in these areas by
a refiner or importer who does not have an individual baseline, also
must comply with the anti-dumping statutory baseline. As discussed
above, the anti-dumping statutory baseline was developed using both the
summer and winter seasonal models. Since the annual emissions
performance of gasoline produced or imported for use in these areas
must be evaluated using only the winter Complex Model, for these areas,
there is not an agreement between the seasonal model reflected in the
baseline and the seasonal model used for calculating
[[Page 650]]
annual compliance.\9\ Because the winter Complex Model predicts higher
emissions than the summer Complex Model, in these situations, the
refinery or importer is required to comply with a standard that, in
effect, is more stringent than intended. That is, the refiner or
importer must produce or import gasoline that is actually cleaner than
the average gasoline produced or imported for use in 1990.\10\ This
unintended result can have a significant adverse economic effect on
those refineries and importers whose baselines include gasoline
produced or imported for use in Alaska, Hawaii, Puerto Rico and the
Virgin Islands and who have increased the volume of gasoline that they
produce or import for these areas above their 1990 baseline volumes of
gasoline produced or imported for these areas, and those refineries and
importers who are subject to the anti-dumping statutory baseline for
all of their gasoline.
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\9\ Gasoline produced or imported for Hawaii, Alaska, Puerto
Rico and the Virgin Islands was evaluated using only the winter
Complex Model for purposes of calculating a refinery's or importer's
individual 1990 baseline. Since annual production or imports for
these areas is also evaluated using the winter Complex Model, there
is a general agreement between the seasonal model used to develop
the baseline and the seasonal model used to calculate annual
emissions for gasoline production or imports up to the refinery's or
importer's 1990 baseline volume of gasoline produced or imported for
these areas.
\10\ Because the winter Complex Model predicts higher emissions
for exhaust toxics and NOX than the summer Complex Model,
the average emissions of gasoline produced or imported for use in
Alaska, Hawaii, Puerto Rico and the Virgin Islands during an annual
averaging period, which is evaluated using only the winter Complex
Model, will appear to have higher emissions than that same gasoline
would appear to have if evaluated using the summer Complex Model for
some of the volume of gasoline. If, for example, gasoline produced
or imported for use in these areas has properties identical to the
properties of anti-dumping baseline gasoline, that gasoline (as
evaluated using only the winter Complex Model) will appear to have
higher emissions than anti-dumping baseline gasoline, and would be
deemed out of compliance with the anti-dumping statutory baseline
emissions standard.
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B. Proposed Action
1. What Change to the Baselines Is EPA Proposing?
We believe that the performance of the gasoline produced or
imported for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands
should be compared to a baseline that is seasonally consistent with the
compliance model that is used for purposes of compliance evaluation. To
address this, we considered allowing refiners and importers in these
areas to use the winter Complex Model for all baseline and compliance
calculations, and to replace the anti-dumping statutory baseline with
only the winter statutory baseline for compliance purposes. However,
since the seasonal Complex Models were developed taking climatic
conditions into account, we believe that selection of the seasonal
model should generally reflect the climate of the region. As a result,
we are proposing the following changes for refiners and importers who
produce or import conventional gasoline for use in Alaska, Hawaii,
Puerto Rico and the Virgin Islands.
First, we are proposing to allow refineries and importers to
petition EPA to modify their baselines so that all gasoline produced or
imported for use in these areas that is currently subject to the anti-
dumping statutory baseline will be subject to a single seasonal
statutory baseline. Thus, those volumes of gasoline produced or
imported for use in these areas in excess of the refinery's or
importer's 1990 individual baseline volume of gasoline produced or
imported for use in these areas, and those volumes of gasoline produced
or imported by a refinery or importer without an individual baseline,
would no longer be subject to both seasonal components of the anti-
dumping statutory baseline. Instead, such gasoline would be subject to
the appropriate single seasonal component of the anti-dumping statutory
baseline. This approach would alleviate the current inconsistency (as
described above) by more accurately approximating the performance of
average 1990 gasoline. This approach would allow refineries and
importers to calculate their baseline emissions for gasoline produced
or imported for use in these areas using a seasonal version of the
Complex Model that agrees with the seasonal version of the Complex
Model that they must use to calculate annual emissions performance.
Second, we are proposing that any refinery or importer that elects
to change its baseline must use the single seasonal statutory baseline
that is most appropriate to the regional climate, and the seasonal
component of the Complex Model that is most appropriate to the regional
climate, for calculating both individual baseline emissions and annual
average emissions. Thus, for the reasons discussed below, refineries
and importers of gasoline produced or imported for use in Hawaii,
Puerto Rico and the Virgin Islands that elect to change their baselines
in accordance with today's proposal would need to use the summer
statutory baseline and the summer Complex Model for all calculations.
Refineries and importers of gasoline produced or imported for use in
Alaska that elect to change their baselines in accordance with today's
proposal would need to use the winter statutory baseline and the winter
Complex Model for all calculations.
We believe that it is generally appropriate to treat Alaska,
Hawaii, Puerto Rico and the Virgin Islands essentially as isolated
subcomponents of the overall U.S. gasoline pool.\11\ Unlike areas
within the continental U.S., these areas are geographically isolated,
and, therefore, do not typically receive gasoline from the fungible
system that supplies most of the U.S. These areas also have potentially
unique automobile fleets and ambient airshed characteristics. Most
importantly, these areas are climatically isolated from the continental
U.S. and have relative constant and uniform temperatures.\12\
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\11\ Certain provisions of the Clean Air Act also treat Alaska,
Hawaii, Puerto Rico, the Virgin Islands and the other U.S.
territories differently than areas within the continental U.S.
Recognizing that these areas may have unique local factors that
render compliance with fuels requirements infeasible or
unreasonable, the Act specifically provides that these areas may
petition EPA for an exemption from the fuels requirements. See CAA
Section 325. The Act extends this provision to Alaska and Hawaii for
purposes of compliance with the diesel sulfur requirements. See CAA
Section 211(i)(4). In addition, as discussed above, the Act exempts
Alaska, Hawaii and the U.S. Territories from the volatility
requirements for conventional gasoline. See CAA Section 211(h)(5).
Thus, we believe that today's proposal is consistent with the Act's
recognition that, because of their unique geographical and climatic
circumstances, it may be appropriate under certain circumstances to
treat these areas in a different manner than areas within the
continental U.S.
\12\ Similar distinctions within the continental U.S. would be
difficult to make because of the fungibility of the gasoline
distribution system, the interconnectedness of regional airsheds,
the mobility of the automobile fleet, and the lack of distinctly
isolated climatic regions.
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The relatively constant warm year-round ambient temperatures in
Hawaii, Puerto Rico and the Virgin Islands are generally consistent
with conditions typical of a high ozone season and with the conditions
under which EPA intended the summer Complex Model to apply. Thus, for
purposes of anti-dumping compliance, we believe that the high ozone
season essentially applies in these areas year round. Therefore,
today's proposal would allow refineries and importers to petition EPA
to modify their individual 1990 baselines for gasoline produced or
imported for use in these areas using only the summer Complex Model. We
would then require gasoline produced or imported for use in these areas
to comply with this new individual baseline for gasoline up to the
refinery's or importer's 1990 baseline volume of gasoline to these
areas. Gasoline production or imports in excess of the refinery's or
importer's 1990 baseline
[[Page 651]]
volume of gasoline to these areas would be subject to only the summer
statutory baseline. The proposal would allow refineries and importers
that are currently subject to the anti-dumping statutory baseline to
petition EPA to change their baseline to only the summer statutory
baseline for gasoline produced or imported for these areas. Refineries
and importers would use only the summer Complex Model for all
compliance calculations for all gasoline produced or imported for use
in these areas. In the case of refineries and importers with an
individual 1990 baseline which does not include any gasoline produced
or imported for use in these areas, any gasoline produced or imported
for use in these areas during the annual averaging period would be
subject to the refinery's or importer's individual summer 1990
baseline, and the summer Complex Model would be used for all compliance
calculations.
We also believe that the relatively constant colder year-round
ambient temperatures in Alaska are generally consistent with the
conditions outside of the high ozone season and with the conditions
under which EPA intended the winter Complex Model to apply. Thus,
today's proposal would allow refineries and importers to petition EPA
to establish an individual 1990 baseline for gasoline produced or
imported for use in Alaska using only the winter Complex Model. We then
would require gasoline produced or imported for use in Alaska to comply
with this new individual baseline up to the refinery's or importer's
1990 baseline volume of Alaska gasoline. Gasoline produced or imported
for use in Alaska in excess of the refinery's or importer's 1990
baseline volume of Alaska gasoline would be subject to only the winter
statutory baseline. The proposal would allow refineries and importers
currently required to comply with the anti-dumping statutory baseline
to petition EPA to change their baseline to only the winter statutory
baseline for Alaska gasoline. Refineries and importers would continue
to use the winter Complex Model for all compliance calculations for
Alaska gasoline. In the case of refineries and importers with an
individual 1990 baseline that does not include any gasoline produced or
imported for use in Alaska, any gasoline produced or imported for use
in Alaska during the annual averaging period would be subject to the
refinery's or importer's individual winter 1990 baseline, and the
winter Complex Model would be used for all compliance calculations.
We considered, as an alternative approach, continuing the
application of the anti-dumping statutory baseline in these areas and
requiring annual production or imports in these areas to be evaluated
using both seasonal components of the Complex Model rather than a
single seasonal Complex Model. However, we believe it is more
appropriate to use a single seasonal statutory baseline and a single
seasonal version of the Complex Model to evaluate compliance in these
areas. Requiring application of the anti-dumping statutory baseline,
with its two seasonal components, and use of both seasonal components
of the Complex Model for calculating annual averages, is appropriate
for gasoline produced or imported for use in the continental U.S.,
where most areas experience seasonal changes in temperature that
generally correspond to the high ozone/non-high ozone periods. However,
given that the temperatures in Alaska, Hawaii, Puerto Rico and the
Virgin Islands are relatively constant year round, we believe that the
single seasonal statutory baseline and single seasonal version of the
Complex Model most appropriate to the climatic conditions of the area
would provide a more accurate evaluation of gasoline produced or
imported for use in these areas. Therefore, we believe that today's
proposed action would provide a more appropriate mechanism for ensuring
that gasoline in these areas does not degrade in comparison to gasoline
sold in these areas in 1990.
We request comment on this proposed action and on other possible
approaches to address the inconsistencies in the anti-dumping
regulations discussed above regarding the application of the anti-
dumping statutory baseline and the seasonal Complex Models for gasoline
produced or imported for use in Alaska, Hawaii, Puerto Rico and the
Virgin Islands.
2. What Change Does EPA Propose To Make to the Anti-Dumping Regulations
To Implement the Proposal?
To implement the changes described above, today's rule proposes to
revise the anti-dumping regulations to allow any refinery or importer
with an individual 1990 baseline that produces or imports gasoline for
use in Hawaii, Puerto Rico and the Virgin Islands the option to
petition EPA to use the summer seasonal model for all baseline and
compliance calculations for gasoline produced or imported for these
areas.\13\ As discussed above, given the consistently warm climate in
Hawaii, Puerto Rico and the Virgin Islands, we believe that the summer
Complex Model is the most appropriate model for evaluating emissions in
these areas under the anti-dumping program. Thus, we are proposing to
modify the baseline submission provisions at Sec. 80.93(d) to allow
refineries and importers to petition EPA to evaluate all of their 1990
conventional gasoline produced or imported for use in these areas using
the summer Complex Model. This would require a refinery or importer to
calculate a separate 1990 individual baseline for gasoline produced or
imported for use in these areas, and to recalculate its current anti-
dumping baseline to reflect the subtraction of baseline gasoline
produced or imported for use in these areas.\14\
---------------------------------------------------------------------------
\13\ As discussed in footnote 6 above, in a final rule dated
June 9, 1999 (64 FR 30904), EPA modified the anti-dumping
regulations to allow refiners and importers who have Puerto Rico
gasoline, or Puerto Rico and Virgin Islands gasoline, in their 1990
baseline to petition EPA to replace the winter Complex Model with
the summer Complex Model for purposes of compliance for their Puerto
Rico gasoline. Today's rule does not substantively change the
provisions for Puerto Rico gasoline promulgated on June 9, 1999.
Rather, today's rule extends the use of the summer only Complex
Model to gasoline produced or imported for use in Puerto Rico by
refiners and importers that do not have individual baselines and
those that have an individual baseline but do not have any Puerto
Rico gasoline in their baselines.
\14\ For refineries and importers with individual baselines that
produce or import gasoline for the continental U.S. as well as
Alaska, Hawaii, Puerto Rico or the Virgin Islands, the approach in
today's proposal likely would result in a reduction of the total
volume of gasoline that currently would be subject to the anti-
dumping statutory baseline, since, under the proposal, gasoline
produced or imported for Alaska, Hawaii, Puerto Rico or the Virgin
Islands in excess of the refinery's or importer's baseline volume of
gasoline for these areas would no longer be included in the volume
of gasoline subject to the anti-dumping statutory baseline. This may
have an impact on the refinery's or importer's compliance baseline
for the annual averaging period.
---------------------------------------------------------------------------
Today's action also would revise the anti-dumping compliance
baseline equation at Sec. 80.101(f)(4) by replacing the anti-dumping
statutory baseline component with the summer statutory baseline
component for gasoline produced or imported for use in Hawaii, Puerto
Rico and the Virgin Islands in excess of the refinery's or importer's
1990 baseline volume of gasoline produced or imported for these areas.
The proposed modification of the baseline submission provisions at
Sec. 80.93(d) also would allow refineries and importers currently
subject to the anti-dumping statutory baseline for all of their
gasoline to petition EPA to change their baseline to only the summer
statutory baseline for any conventional gasoline produced or imported
for use in these areas. The proposal includes a new Sec. 80.101(f)(3)
which would require such refineries
[[Page 652]]
and importers to comply with the summer statutory baseline for gasoline
produced or imported for use in these areas. In addition, the proposal
would modify 40 CFR 80.101(g)(1) to require refineries and importers
that petition EPA under Sec. 80.93(d) to evaluate all of their
gasoline produced or imported for these areas during the annual
averaging period using only the summer Complex Model.
As discussed above, given Alaska's consistently colder climate, we
believe that the winter Complex Model is the most appropriate model for
evaluating emissions of conventional gasoline produced or imported for
use in Alaska under the anti-dumping program. Today's proposal,
therefore, does not change the current requirement for Alaska 1990
baseline gasoline and annual average emissions to be evaluated using
the winter Complex Model. However, the modifications to the baseline
submission provisions at Sec. 80.93(d) would require refineries and
importers of Alaska gasoline that elect to change their baseline to
calculate a separate baseline for Alaska gasoline, and to recalculate
their current anti-dumping baseline to reflect the subtraction of 1990
baseline Alaska gasoline. Today's action would revise the anti-dumping
compliance baseline equation at Sec. 80.101(f)(4) by replacing the
anti-dumping statutory baseline component with the winter statutory
baseline component for gasoline produced or imported in excess of the
refinery's or importer's 1990 baseline volume of Alaska gasoline. The
modifications to the baseline submission provisions at Sec. 80.93(d)
also would allow refineries and importers currently subject to the
anti-dumping statutory baseline for all of their gasoline to petition
EPA to change their baseline to the winter statutory baseline for any
conventional gasoline produced or imported for use in Alaska. The new
Sec. 80.101(f)(3) would require such refineries and importers to
comply with the winter statutory baseline for gasoline produced or
imported for use in Alaska.
In addition to the proposed changes to the anti-dumping regulations
discussed above, today's action proposes to modify Sec. Sec.
80.91(e)(2)(ii)(A) and 80.101(g)(6) to clarify the summer/winter
distinction with regard to gasoline produced or imported for use in
Alaska, Hawaii, Puerto Rico and the Virgin Islands. We request comment
on all of the proposed modifications to the anti-dumping regulations.
3. How Does a Refiner or Importer Change Its Baseline?
We are proposing that the changes in today's rule would be optional
for any refiner for a refinery, or importer, that produces or imports
gasoline intended for use in Alaska, Hawaii, Puerto Rico and the Virgin
Islands, and would be limited to those refiners and importers that
petition the Agency for these changes. However, a refinery or importer
that changes from the anti-dumping statutory baseline to a single
seasonal statutory baseline must use the appropriate seasonal statutory
baseline for all gasoline produced or imported for use in any of the
areas subject to this rule, and must use the appropriate seasonal
Complex Model for all future calculations. For example, an importer of
Puerto Rican gasoline that petitions EPA to change from the anti-
dumping statutory baseline to a single seasonal statutory baseline must
change to the summer statutory baseline and must use the summer Complex
Model for all future calculations for Puerto Rican gasoline and also
for any gasoline the importer imports into Hawaii and/or the Virgin
Islands. Refineries and importers whose 1990 individual baselines
include gasoline produced or imported for these areas would be required
to recalculate their individual baselines, as described above, and
submit the new baselines with their petition. Once such a petition is
submitted and granted, the new method for determining compliance with
the anti-dumping requirements would apply from then on and the refinery
or importer could not revert back to its original baseline. The new
baseline would apply to the refinery regardless of ownership; i.e., if
a refinery obtains a new baseline under today's rule, the new baseline
would apply to the refinery even if the refinery is subsequently sold
to another refiner.
Refineries and importers that produce or import gasoline for these
areas and do not petition EPA to change their baselines would continue
to be subject to their current baselines and would continue to use the
Complex Model that is required for calculating emissions under the
current regulations.
We believe that it is appropriate to make this baseline change
optional since, as discussed below, an election not to adopt a baseline
change would not result in any adverse environmental impact. We request
comment on the proposal to allow these changes to be optional.
4. What Are the Environmental Effects of This Proposed Action?
We believe that the proposal to allow refineries and importers to
change their baselines would not undermine the environmental goals of
the anti-dumping program (i.e., to ensure that conventional gasoline
will be no dirtier than 1990 gasoline). Although it is possible that
the gasoline supplied by parties to the affected areas could have
increases in emissions, these changes will not result in gasoline with
emissions that are greater than conventional gasoline in these areas,
or nationwide, compared to 1990 levels. Today's rule provides an
alternative compliance method for refiners and importers who, under the
current regulations, are required to produce or import gasoline that is
actually cleaner than the average 1990 gasoline produced or imported
for use in the affected areas or nationwide. As a result, even if all
of these affected parties choose the new compliance method, the goals
of the anti-dumping program would be met. To the extent that parties
choose to retain their current compliance method, there would continue
to be an added environmental benefit above and beyond that specifically
required to meet the goals of the anti-dumping program.
We request comment on the environmental effects of today's proposed
changes to the anti-dumping rules.
5. When Would the Baseline Changes Become Effective?
We are proposing that the baseline changes proposed in today's rule
would become effective beginning with the annual averaging period in
which a refiner's or importer's petition is granted.
6. Are Refiners and Importers Required To Provide Documentation That
Gasoline Was Produced or Imported for Use in an Affected Area?
We are proposing to require refiners and importers who change their
baseline in accordance with today's rule to retain documents which
substantiate that gasoline complying with the new baseline, in fact,
was produced or imported for use in the affected area. We believe that
such information will be included in business documents associated with
the sale and distribution of the gasoline. In the absence of such
documentation, the refiner or importer would have no assurance that the
product would be used in the affected area, and, thus, would have no
basis for applying the new baseline. We request
[[Page 653]]
comment on the proposed documentation retention requirement.
IV. Mobile Source Air Toxics Rule (MSAT)
A. Background
40 CFR part 80, subpart J, contains the provisions applicable to
refiners and importers for determining their baselines and compliance
values for the gasoline toxics program, also known as the Mobile Source
Air Toxics (MSAT) program. As with the conventional gasoline anti-
dumping requirements, the toxics performance provisions in the MSAT
program apply on a refinery-by-refinery (and importer-by-importer)
basis. For each refinery, a refiner must identify the appropriate
toxics performance baseline for its conventional gasoline and its RFG.
Similarly, each importer must identify an appropriate toxics
performance baseline for the gasoline that it imports. Refiners and
importer must then demonstrate compliance with each applicable baseline
on an annual average basis using the Complex Model.
The MSAT provisions require that refiners and importers establish
an individual toxics baseline, separately for RFG and conventional
gasoline, based on the average toxics performance of their gasoline
during the baseline period, 1998 through 2000. Refiners and importers
are also required to establish a total baseline volume based on their
volume of gasoline production during this baseline period.
Alternatively, a refiner or importer may be subject to the default
toxic baseline established by EPA if a refinery or importer did not
have sufficient production or imports during the MSAT baseline period
to calculate an average toxics performance for their baseline gasoline.
Refineries or importers subject to the default baseline do not have an
MSAT baseline volume.
MSAT compliance is determined on an annual average basis. The
gasoline produced or imported during the averaging period can be no
more polluting than the refiner's or importer's MSAT baseline level for
that type of gasoline (RFG or conventional). For RFG, total toxics
emissions are evaluated, and toxics performance is reported as a
percent reduction from the statutory baseline. For conventional
gasoline, only exhaust toxics emissions are evaluated, and toxics
performance is reported in mg/mile. Any volume produced or imported in
excess of a refiner's or importer's individual MSAT baseline volume can
be no more polluting than the RFG toxics standard or the refiner's or
importer's conventional gasoline anti-dumping toxics baseline level, as
applicable.
B. Action
EPA believes that it is appropriate to modify the MSAT requirements
in a manner that is consistent with the changes being proposed today
for the conventional gasoline anti-dumping program. These changes to
the MSAT program are necessary because, generally, the MSAT provisions
applicable to conventional gasoline are of the same form as the anti-
dumping provisions, and because such changes are needed to maintain
agreement between methods used to establish baselines and those used to
evaluate gasoline performance for purposes of compliance. Thus, EPA is
proposing to require a refiner or importer that submits a petition
under the anti-dumping program as described in today's action to also
petition for a separate or modified MSAT baseline applicable to
gasoline produced or imported into Alaska and/or Hawaii, Puerto Rico,
and the Virgin Islands.
EPA is proposing the following MSAT baselines and compliance
determinations for refiners and importers who submit petitions as
discussed in today's proposal for gasoline produced or imported into
Alaska and/or Hawaii and/or Puerto Rico and/or the Virgin Islands:
(1) Affected parties who did not produce or import any gasoline
during the baseline period (1998-2000), may petition EPA to have the
appropriate seasonal MSAT conventional gasoline default baseline for
gasoline produced or imported for use in Alaska and/or Hawaii, Puerto
Rico, and the Virgin Islands, and use the appropriate seasonal version
of the Complex Model for evaluating gasoline produced or imported for
these areas. Such parties would be subject to the annual MSAT
conventional gasoline default baseline for all other gasoline produced
or imported (i.e., gasoline for use in the continental U.S.)
(2) Affected parties who produced gasoline during the baseline
period, but who did not produce or import gasoline for Alaska and/or
Hawaii, Puerto Rico, or the Virgin Islands during the baseline period,
may petition EPA to have the appropriate individual refinery or
importer conventional gasoline seasonal MSAT baseline for these areas,
and evaluate any gasoline produced or imported for use in these areas
using the appropriate seasonal Complex Model. Such gasoline shall not
be considered in determining whether a refiner or importer has produced
or imported any incremental gasoline volumes above the refiner's or
importer's MSAT baseline volume.
(3) Affected parties who only produced or imported gasoline for
Alaska and/or Hawaii, Puerto Rico, or the Virgin Islands during the
baseline period may petition EPA for a revised MSAT baseline using the
appropriate seasonal version of the Complex Model, and use the
appropriate seasonal version of the Complex Model for all compliance
determinations for such gasoline. Gasoline produced or imported for use
in these areas up to the refiner's or importer's MSAT baseline volume
would be subject to the refiner's or importer's seasonally appropriate
MSAT baseline. Any incremental volumes above the baseline volume would
be subject to the refiner's or importer's appropriate seasonal anti-
dumping baseline. Any gasoline produced or imported for use in the
continental U.S. would be subject to the annual MSAT conventional
gasoline default baseline.
(4) Affected parties who produced or imported gasoline during the
baseline period for use in the continental U.S. and for use in Alaska
and/or Hawaii, Puerto Rico, or the Virgin Islands may petition EPA to
have a separate, seasonally appropriate MSAT baseline and a separate
MSAT baseline volume for gasoline produced or imported for use in
Alaska and/or Hawaii, Puerto Rico, and the Virgin Islands. Such
refiners or importers must then use the appropriate seasonal component
of the Complex Model to evaluated gasoline sold in these areas.
Additionally, such refiners must establish a separate annual baseline
and baseline volume for all other gasoline, which must be evaluated
using the annual Complex Model.
We believe that the changes to the MSAT regulations proposed in
today's rule are consistent with the Agency's findings in the MSAT
rulemaking, 66 FR 17233-34 (March 29, 2001) respecting air toxics under
the Act. In that rule, EPA adopted standards under Section 202(l) of
the Act, which requires EPA to establish regulations which reflect the
greatest degree of reduction in emissions of air toxics achievable
through the application of available technology. In the MSAT rule, EPA
determined that the performance of gasoline during the 1998 through
2000 baseline period reflected the greatest degree of toxics reduction
achievable in the near term. Thus, EPA promulgated regulations under
Subpart J requiring refiners and importers to produce or import
gasoline that is no dirtier than the gasoline they produced or imported
during the baseline period, and requiring refiners and importers who
[[Page 654]]
did not produce or import gasoline during the baseline period to
produce or import gasoline no dirtier than the national annual average
toxics emissions during the baseline period (i.e., the MSAT default
baseline). See 66 FR 17233.
Under the current regulations, refiners and importers who produce
or import gasoline for use in Alaska, and/or Hawaii, Puerto Rico or the
Virgin Islands who are subject to the MSAT default baseline are, in
fact, required to produce or import gasoline that is cleaner than the
national annual average during the MSAT baseline period. This is
because the MSAT default baseline was determined using both seasonal
components of the Complex Model, while parties in the affected areas
are required to evaluate their gasoline using only the winter Complex
Model (which, as discussed above, gives higher emission values for the
same gasoline than if the gasoline were evaluated using both seasonal
components of the model). Today's proposed rule corrects this
inconsistency while continuing to require such parties to produce or
import gasoline that is no more polluting than the average gasoline
during the MSAT baseline period, as required under EPA's MSAT
regulations. Similarly, parties with individual MSAT baselines will
continue to meet the requirements under the Act and EPA's regulations
for gasoline produced or imported up to their baseline volume, without
being required to produce or import gasoline that is cleaner than their
average gasoline during the MSAT baseline period.
For parties with an individual MSAT baseline who produce or import
gasoline in excess of their MSAT baseline volume, the MSAT regulations
require the excess volume to meet the refiner's or importer's standard
under the anti-dumping rule (i.e., excess volume may not be more
polluting than the refiner's or importer's individual anti-dumping
baseline level). Therefore, we believe it is appropriate for gasoline
produced or imported in excess of the MSAT baseline volume to be
subject to the anti-dumping baseline that is established for purposes
of anti-dumping compliance, as discussed earlier in this notice.
For these reasons, we believe it is appropriate for EPA to permit
refiners and importers to modify their MSAT baseline, as described
above, consistent with the changes allowed under today's proposed rule
for refiners' and importers' anti-dumping baselines, with respect to
gasoline sold in Alaska and/or Hawaii, Puerto Rico or the Virgin
Islands.
V. Public Participation
EPA desires full public participation in arriving at its final
decisions and solicits comments on all aspects of this proposal.
Wherever applicable, full supporting data and detailed analysis should
also be submitted to allow EPA to make maximum use of the comments. All
comments should be directed, by February 3, 2005, to the EPA Air
Docket, Docket No. OAR-2003-0010. Any proprietary information being
submitted for the Agency's consideration should be markedly
distinguished from other submittal information and clearly labeled
``Confidential Business Information.'' Proprietary information should
be sent directly to the contact person listed above, and not to the
public docket, to ensure that it is not inadvertently placed in the
docket. Information thus labeled and directed shall be covered by a
claim of confidentiality and will be disclosed by EPA only to the
extent allowed and by the procedures set forth in 40 CFR part 2. If no
claim of confidentiality accompanies a submission when it is received
by EPA, it may be made available to the public without further notice
to the commenter.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under 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 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
the Executive Order.
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. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 1591.17. OMB has approved the information
collection requirements contained in the final RFG/anti-dumping
rulemaking (see 59 FR 7716 (February 16, 1994)) and has assigned OMB
control number 2060-0277 (EPA ICR No. 1591.13). EPA ICR 1591.17
associated with this rule will be encompassed in the next renewal of
ICR 1591.13.
This proposed rule addresses certain adverse impacts on refiners
and importers of conventional gasoline under the current rule and
provides refiners and importers parties with additional flexibility to
comply with the regulations. The flexibility afforded under this rule
is optional. Modest information collection requirements in the form of
a one-time only petition to EPA and minimal recordkeeping requirements
are required of those refiners who wish to avail themselves of the
flexibility provided in this rule.
The estimated hour burden for this rule is 20 hours per petition.
The estimated number of petitions is 10. The estimated cost burden for
the petition is $60 per hour. The total estimated cost for each
respondent is $1,200. The total estimated cost for all respondents is
$12,000. We do not anticipate that any burdens will be associated with
the additional recordkeeping requirements, since the information
required to be retained normally is included on business documents
retained by refiners and importers.
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 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
[[Page 655]]
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.
To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, including the use of automated collection
techniques, EPA has established a public docket for this ICR under
Docket ID number OAR-2003-0010. The public docket is available for
viewing at the Air and Radiation Docket in the EPA Docket Center (EPA/
DC), EPA West, Room B 102, 1301 Constitution Avenue, NW., Washington,
DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Reading Room is (202) 566-1744, and the
telephone number for the Air and Radiation Docket is (202) 566-1742. An
electronic version of the public docket is available through EPA
Dockets (EDOCKET) at http://www/epa.gov/edocket. Use EDOCKET to submit
or view public comments, access the index listing of the contents of
the public docket, and to access those documents in the public docket
that are available electronically. Once in the system, select
``search,'' then key in the docket ID number OAR-2003-0010. Also, you
can send comments to the Office of Information and Regulatory Affairs,
Office of Management and Budget, 725 17th Street, NW., Washington, DC
20503, Attention: Desk Office for EPA. Since OMB is required to make a
decision concerning the ICR between 30 and 60 days after January 4,
2005, a comment to OMB is best assured of having its full effect if OMB
receives it by February 3, 2005. The final rule will respond to any OMB
or public comments on the information collection requirements contained
in this proposal.
C. Regulatory Flexibility Act
The 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 proposed rule on
small entities, small entity is defined as: (1) A small business that
has not more than 1,500 employees (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 proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule involves optional provisions intended to promote
successful implementation of the requirements for conventional gasoline
and to address existing adverse economic impacts of the current rule.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's proposed rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local or
tribal governments or the private sector. This proposed rule would
impose no enforceable duty on any State, local or tribal governments or
the private sector. This proposed rule affects gasoline refiners and
importers of conventional gasoline by proposing optional provisions for
evaluating the emissions of conventional gasoline in certain
situations. This proposed rule would have the effect of reducing the
burden of the conventional gasoline regulations on these regulated
parties. Therefore, the requirements of the Unfunded Mandates Act do
not apply to this proposed action.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
This proposed rule 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. This rule proposes options for
evaluating the emissions of conventional gasoline. The requirements of
the rule would be enforced by the federal government at the national
level. Thus, Executive Order 13132 does not apply to this proposed
rule.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
[[Page 656]]
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
This rule applies to gasoline refiners and importers who supply
conventional gasoline. Today's action proposes certain modifications to
the federal requirements for conventional gasoline, and does not impose
any enforceable duties on communities of Indian tribal governments.
Thus, Executive Order 13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This rule is not subject to
Executive Order 13045 because it does not establish an environmental
standard intended to mitigate health or safety risks.
H. Executive Order 13211: Acts That Significantly Affect Energy Supply,
Distribution, or Use
This proposed rule is not an economically ``significant energy
action'' as defined in Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355 (May 22, 2001)) because it does not have a
significant adverse effect on the supply, distribution, or use of
energy. This proposed rule would provide additional flexibility for
refiners and importers of conventional gasoline which may allow these
regulated parties to better respond to fluctuations in gasoline supply
or demand in certain situations.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 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 proposed rule does not establish new analytical test methods
under the RFG and conventional gasoline programs.
VII. Statutory Provisions and Legal Authority
The statutory authority for the actions proposed today comes from
section 211(c) and (k) of the CAA (42 U.S.C. 7545(c) and (k)), which
allows us to regulate fuels that either contribute to air pollution
which endangers public health or welfare or which impairs emission
control equipment. Additional support for the procedural aspects of the
fuels's controls in today's proposed rule, including the petition
requirement, comes from sections 114(a) and 301(a) of the CAA. Today's
action is a proposed rulemaking under section 307(d) of the CAA.
List of Subjects in 40 CFR Part 80
Environmental protection, Air pollution control, Fuel additives,
Gasoline, Motor vehicle pollution, Reporting and recordkeeping
requirements.
Dated: December 22, 2004.
Michael O. Leavitt,
Administrator.
For the reasons set out in the preamble, part 80 of title 40 of the
Code of Federal Regulations is proposed to be amended as follows:
PART 80--REGULATION OF FUEL AND FUEL ADDITIVES
1. The authority citation for part 80 continues to read as follows:
Authority: 42 U.S.C. 7414, 7545, and 7601(a).
Subpart E--[Amended]
2. Section 80.91 is amended by revising paragraph (e)(2)(ii)(A) to
read as follows:
Sec. 80.91 Individual baseline determination.
* * * * *
(e) * * *
(2) * * *
(ii) * * *
(A)(1) All gasoline produced to meet EPA's 1990 summertime
volatility requirements shall be considered summer gasoline. All other
gasoline shall be considered winter gasoline, except:
(2) Gasoline produced or imported for use in Hawaii, the
Commonwealth of Puerto Rico, and the Virgin Islands that is subject to
an approved petition under Sec. 80.93(d) shall be considered summer
gasoline for purposes of paragraph (e) of this section.
* * * * *
3. Section 80.93 is amended by revising paragraph (d) to read as
follows:
Sec. 80.93 Individual baseline submission and approval.
* * * * *
(d) Requirements for a petition applicable to gasoline produced or
imported for use in Alaska, Hawaii, the Commonwealth of Puerto Rico,
and the Virgin Islands. (1)(i) Any refiner for any refinery or importer
with gasoline produced or imported for use in Alaska in its individual
1990 baseline may petition EPA to establish a separate 1990 baseline
for gasoline produced or imported for use in Alaska using the winter
Complex Model, and to use the winter statutory baseline values under
Sec. 80.91(c)(5) for any gasoline produced or imported for use in
Alaska which is
[[Page 657]]
in excess of the refinery's or importer's 1990 volume of gasoline
produced or imported for use in Alaska for purposes of determining the
refinery's or importer's compliance baseline under Sec. 80.101(f)(4).
(ii) Any refiner for any refinery or importer with an individual
1990 baseline which did not include any gasoline produced or imported
for use in Alaska in 1990 may petition EPA to establish a baseline for
gasoline produced or imported for use in Alaska, which is the
refinery's or importer's winter baseline values, for purposes of
determining the refinery's or importer's compliance baseline under
Sec. 80.101(f)(3) for any gasoline which the refiner or importer
produces or imports for use in Alaska.
(iii) Any refiner or importer subject to the anti-dumping statutory
baseline under Sec. 80.91(c)(5) may petition EPA to have the winter
statutory baseline values under Sec. 80.91(c)(5) apply for purposes of
determining the refinery's or importer's compliance baseline under
Sec. 80.101(f)(3) for any gasoline which the refiner or importer
produces or imports for use in Alaska.
(2)(i) Any refiner for any refinery or importer with gasoline
produced or imported for use in Hawaii, the Commonwealth of Puerto
Rico, and/or the Virgin Islands in its individual 1990 baseline may
petition EPA to establish a separate 1990 baseline for gasoline
produced or imported for use in these areas using the summer Complex
Model, and to use the summer statutory baseline values under Sec.
80.91(c)(5) for any gasoline produced or imported for use in these
areas in excess of the refinery's or importer's 1990 volume of gasoline
produced or imported for use in these areas, for purposes of
determining the refinery's or importer's compliance baseline under
Sec. 80.101(f)(4).
(ii) Any refiner for any refinery or importer with an individual
1990 baseline which did not include any gasoline produced or imported
for use in Hawaii, the Commonwealth of Puerto Rico, and/or the Virgin
Islands in 1990 may petition EPA to establish a baseline for gasoline
produced or imported for use in these areas, which is the refinery's or
importer's summer baseline values, for purposes of determining the
refinery's or importer's compliance baseline under Sec. 80.101(f)(3)
for any gasoline which the refiner or importer produces or imports for
use in these areas.
(iii) Any refiner or importer subject to the anti-dumping statutory
baseline under Sec. 80.91(c)(5) may petition EPA to have the summer
statutory baseline values under Sec. 80.91(c)(5) apply for purposes of
determining the refinery's or importer's compliance baseline under
Sec. 80.101(f)(3) for any gasoline which the refiner or importer
produces or imports for use in Hawaii, the Commonwealth of Puerto Rico,
and/or the Virgin Islands.
(iv) Any petition submitted in accordance with paragraphs
(d)(2)(i), (d)(2)(ii) or (d)(2)(iii) of this section shall apply to
gasoline produced or imported for use in the areas specified,
inclusively.
(3) A petition under paragraphs (d)(1) or (d)(2) of this section
must include the following:
(i) Identification of the refinery or importer;
(ii) EPA company and facility registration numbers issued under
Sec. 80.76;
(iii) Identification of a contact person; and
(iv) For petitions submitted under paragraphs (d)(1)(i) and
(d)(2)(i) of this section:
(A) Revised 1990 individual baseline determination wherein the
baseline for gasoline produced or imported for use in Alaska has been
evaluated using the winter Complex Model, or gasoline produced or
imported for use in Hawaii, the Commonwealth of Puerto Rico, and/or the
Virgin Islands has been evaluated using the summer Complex Model, as
applicable, with the calculations clearly and fully described and
displayed; and
(B) Revised 1990 individual baseline determination for gasoline in
the refinery's or importer's original individual 1990 baseline which
was not produced or imported for use in Alaska, and/or Hawaii, the
Commonwealth of Puerto Rico, and/or the Virgin Islands, inclusive.
(C) Baseline auditor agreement with the revised baseline values.
(4) A petition submitted under this section must be sent in
duplicate to: U.S. EPA, Transportation and Regional Programs Division,
Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC
20460.
(5) EPA reserves the right to request additional information. If
such information is not forthcoming in a timely manner, the petition
will not be approved.
4. Section 80.101 is amended by revising paragraphs (f)(2),
(f)(4)(iii), (g)(1)(ii)(B), (g)(2) introductory text, (g)(2)(i), and
(g)(6), and adding paragraphs (f)(3) and (g)(1)(ii)(C) to read as
follows:
Sec. 80.101 Standards applicable to refiners and importers.
* * * * *
(f) * * *
(2)(i) In the case of any refiner for any refinery or importer for
whom the anti-dumping statutory baseline applies under Sec. 80.91, the
anti-dumping statutory baseline for each parameter or emissions
performance shall be the compliance baseline for that refinery or
importer.
(ii) In the case of any refiner for any refinery or importer that
has received approval of a petition submitted under Sec.
80.93(d)(1)(iii), the compliance baseline for each emissions
performance for that refinery or importer for gasoline produced or
imported for use in Alaska shall be the winter statutory baseline value
under Sec. 80.45(b)(3), Table 5.
(iii) In the case of any refiner for any refinery or importer that
has received approval of a petition submitted under Sec.
80.93(d)(2)(iii), the compliance baseline for each emissions
performance for that refinery or importer for gasoline produced or
imported for use in Hawaii, the Commonwealth of Puerto Rico, and/or the
Virgin Islands shall be:
(A) The summer statutory baseline value under Sec. 80.45(b)(3),
Table 5 for NOX.
(B) The summer statutory baseline value under Sec. 80.45(b)(3),
Table 5 for Toxics less the corresponding value for Benzene under Sec.
80.45(b)(3), Table 4.
(3)(i) In the case of any refiner for any refinery or importer that
has received approval of a petition submitted under Sec.
80.93(d)(1)(ii), the compliance baseline for each emissions performance
for that refinery or importer for gasoline produced or imported for use
in Alaska shall be the refinery's or importer's winter baseline value
determined under Sec. 80.91.
(ii) In the case of any refiner for any refinery or importer that
has received approval of a petition submitted under Sec.
80.93(d)(2)(ii), the compliance baseline for each emissions performance
for that refinery or importer for gasoline produced or imported for use
in Hawaii, the Commonwealth of Puerto Rico, and/or the Virgin Islands
shall be the refinery's or importer's summer baseline value determined
under Sec. 80.91.
(4) * * *
(iii) Any refiner or importer with gasoline produced or imported
for use in Alaska, Hawaii, the Commonwealth of Puerto Rico, or the
Virgin Islands in its individual baseline that has received approval of
a petition submitted under Sec. 80.93(d), must calculate the
compliance baseline for each parameter or emissions performance
according to the following formulas:
[[Page 658]]
[GRAPHIC] [TIFF OMITTED] TP04JA05.005
[GRAPHIC] [TIFF OMITTED] TP04JA05.006
Where:
CBi = The compliance baseline for parameter or emission
performance i
CBi,j = The compliance baseline for parameter or emission
performance i applicable to the conventional gasoline in production
volume Vj
j is a subscript identifying a portion of gasoline and RBOB
produced or imported as follows:
j=1: Conventional gasoline supplied to Hawaii, the Commonwealth of
Puerto Rico and the Virgin Islands, if gasoline supplied to these areas
is covered by a petition for a separate baseline.
j=2: Conventional gasoline supplied to Alaska, if gasoline supplied to
this area is covered by a petition for a separate baseline.
j=3: Conventional gasoline, reformulated gasoline, RBOB and California
gasoline produced or imported by a refiner or importer, and not
included in portions 1 or 2.
Vj = The averaging period volume for portion j.
Vr = The volume of reformulated gasoline, RBOB and
California gasoline included in V3.
Bi,j = The refiner/importer's individual baseline for
parameter i applicable to the conventional gasoline in portion j, or
the applicable statutory baseline if assigned in lieu of an individual
baseline.
DBi,j = The statutory baseline for parameter i applicable to
the conventional gasoline in portion j (i.e. the annual or seasonal
statutory baseline).
V1990j = The 1990 baseline volume applicable to portion j.
(g) * * *
(1) * * *
(ii) * * *
(B) Any refiner for any refinery or importer that has received EPA
approval of a petition submitted in accordance with the provisions of
Sec. 80.93(d) must use the applicable summer complex model under Sec.
80.45 to evaluate its averaging period gasoline produced or imported
for use in Hawaii, the Commonwealth of Puerto Rico, and the Virgin
Islands.
(C) Any refiner for any refinery or importer that has received EPA
approval of a petition submitted in accordance with the provisions of
Sec. 80.93(d) must use the applicable winter complex model under Sec.
80.45, using an RVP of 8.7 psi, to evaluate its averaging period
gasoline produced or imported for use in Alaska.
(2) In the case of any refiner or importer subject to the anti-
dumping statutory baseline, the summer statutory baseline and/or the
winter statutory baseline, the refiner or importer shall determine
compliance using the following methodology:
(i) Calculate the compliance total for the averaging period for
sulfur, T-90, olefins, exhaust benzene emissions, exhaust toxics and
exhaust NOX emissions, as applicable, based upon the anti-
dumping statutory baseline value, the summer statutory baseline value,
or the winter statutory baseline value, as applicable, for that
parameter using the formula specified at 80.67.
* * * * *
(6)(i) The emissions performance of gasoline that has an RVP
greater than the RVP required under Sec. 80.27 (``winter gasoline'')
shall be determined using the applicable winter complex model under
Sec. 80.45, using an RVP of 8.7 psi for compliance calculation
purposes under this subpart E.
(ii) Except as provided in paragraph (g)(1)(ii) of this section,
the emissions performance of gasoline produced or imported for use in
areas that are not subject to the requirements of Sec. 80.27 shall be
determined using the applicable winter complex model under Sec. 80.45,
using an RVP of 8.7 psi for compliance calculation purposes under this
subpart E.
* * * * *
5. Section 80.104 is amended by adding paragraph (a)(2)(xiii) to
read as follows:
Sec. 80.104 Recordkeeping requirements.
* * * * *
(a) * * *
(2) * * *
(xiii) In the case of gasoline subject to the requirements of Sec.
80.101(f)(2)(ii), (f)(2)(iii), (f)(3)(i) or (f)(3)(ii), documents that
reflect that the gasoline was produced or imported for use in Alaska,
Hawaii, the Commonwealth of Puerto Rico, and/or the Virgin Islands, as
applicable.
* * * * *
Subpart J--[Amended]
6. Section 80.825 is amended by revising paragraph (c)(2) to read
as follows:
Sec. 80.825 How is the refinery or importer annual average toxics
value determined?
* * * * *
(c) * * *
(2)(i) The toxics value, Ti, of each batch of
conventional gasoline, and the annual average toxics value,
Ta, for conventional gasoline under this subpart are in
milligrams per mile (mg/mile) and volumes are in gallons.
(ii) Any refiner for any refinery or importer that has received EPA
approval of a petition submitted in accordance with the provisions of
Sec. 80.93(d) shall determine the toxics value, Ti, of each
batch of conventional gasoline produced or imported for use in Alaska,
and/or Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands
in accordance with Sec. 80.101(g)(1)(ii).
* * * * *
7. Section 80.850 is amended by revising paragraph (c) and adding
paragraph (d) to read as follows:
Sec. 80.850 How is the compliance baseline determined?
* * * * *
(c) Any refiner for any refinery or importer with an approved anti-
dumping baseline under Sec. 80.93(d)(1) for gasoline produced or
imported for use in Alaska, and/or Hawaii, the Commonwealth of Puerto
Rico, and the Virgin Islands, and for which a conventional gasoline
baseline toxics value for such gasoline can be determined according to
Sec. 80.915(b)(1) shall determine its compliance baseline applicable
to such gasoline according to the following equation:
[[Page 659]]
[GRAPHIC] [TIFF OMITTED] TP04JA05.007
Where:
TCBase = Compliance baseline toxics value.
TBase = Baseline toxics value for the refinery or importer, calculated
according to Sec. 80.915(b)(1) for all gasoline except gasoline
produced or imported for use in Alaska, Hawaii, the Commonwealth of
Puerto Rico, and the Virgin Islands.
VBase = Baseline volume for the refinery or importer, calculated
according to Sec. 80.915(b)(2) for all gasoline except gasoline
produced or imported for use in Alaska, Hawaii, the Commonwealth of
Puerto Rico, and the Virgin Islands.
TExist = The refinery's or importer's anti-dumping compliance baseline
value for exhaust toxics, in mg/mi, per Sec. 80.101(f) for all
gasoline except gasoline produced or imported for use in Alaska,
Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands.
VInc = Volume of gasoline produced or imported, excluding the volume of
gasoline produced or imported for use in Alaska, Hawaii, the
Commonwealth of Puerto Rico, and the Virgin Islands during the
averaging period, which is in excess of VBase.
TSBase = Baseline toxics value for the refinery or importer, calculated
according to Sec. 80.915(e)(2)(i) for gasoline produced or imported
for use in Hawaii, the Commonwealth of Puerto Rico, and the Virgin
Islands.
VSBase = Baseline volume for the refinery or importer, calculated
according to Sec. 80.915(e)(2)(ii) for gasoline produced or imported
for use in Hawaii, the Commonwealth of Puerto Rico, and the Virgin
Islands.
TSExist = The refinery's or importer's anti-dumping compliance baseline
value for exhaust toxics, in mg/mi, per Sec. 80.101(f) for gasoline
produced or imported for use in Hawaii, the Commonwealth of Puerto
Rico, and the Virgin Islands.
VSInc = Volume of gasoline produced or imported for use in Hawaii, the
Commonwealth of Puerto Rico, and the Virgin Islands during the
averaging period which is in excess of VSBase.
TWBase = Baseline toxics value for the refinery or importer, calculated
according to Sec. 80.915(e)(1)(i) for gasoline produced or imported
for use in Alaska.
VWBase = Baseline volume for the refinery or importer, calculated
according to Sec. 80.915(e)(1)(ii) for gasoline produced or imported
for use in Alaska.
TWExist = The refinery's or importer's anti-dumping compliance baseline
value for exhaust toxics, in mg/mi, per Sec. 80.101(f) for gasoline
produced or imported for use in Alaska.
VWInc = Volume of gasoline produced or imported for use in Alaska
during the averaging period which is in excess of VWBase.
(d) If the refinery or importer produced less gasoline during the
compliance period than its applicable baseline volume, the value of
Vinc, VSInc or VWInc, as applicable,
will be zero.
8. Section 80.855 is amended by revising paragraph (b)(2) and
adding paragraph (b)(3) to read as follows:
Sec. 80.855 What is the compliance baseline for refineries or
importers with insufficient data?
* * * * *
(b) * * *
(2)(i) A refinery or importer which has an approved anti-dumping
baseline under Sec. 80.93(d) for gasoline produce or imported for use
in Alaska, and that cannot determine an applicable toxics value
according to paragraph (b)(1) of this section, shall have the following
as its compliance baseline for the purposes of this subpart: 110.72 mg/
mile.
(ii) A refinery or importer which has an approved anti-dumping
baseline under Sec. 80.93(d) for gasoline produce or imported for use
in Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands and
that cannot determine an applicable toxics value according to paragraph
(b)(1) of this section, shall have the following as its compliance
baseline for the purposes of this subpart: 77.82 mg/mile.
(3) By October 31, 2001, EPA will revise by regulation the default
baseline values specified in paragraph (b)(1) of this section to
reflect the final 1998-2000 average toxics values.
* * * * *
9. Section 80.910 is amended by revising paragraph (a) to read as
follows:
Sec. 80.910 How does a refiner or importer apply for a toxics
baseline?
(a)(1) A refiner or importer shall submit an application to EPA
which includes the information required under paragraph (c) of this
section no later than June 30, 2001, or 3 months prior to the first
introduction of gasoline into commerce from the refinery or by the
importer, whichever is later.
(2) A refiner or importer shall submit an application to EPA for
the purposes of this subpart simultaneously with the submission of a
petition under Sec. 80.93(d).
* * * * *
10. Section 80.915 is amended by redesignating paragraphs (e)
through (h) as paragraphs (f) through (i) and adding new paragraph (e)
to read as follows:
Sec. 80.915 How are the baseline toxics value and baseline toxics
volume determined?
* * * * *
(e)(1)(i) A refiner or importer which is approved for a petition
submitted under Sec. 80.910(a)(2) for gasoline produced or imported
for use in Alaska shall calculate the applicable toxics baseline value
using the following equation:
[GRAPHIC] [TIFF OMITTED] TP04JA05.008
Where:
TWBase = Baseline toxics value for gasoline produced or imported for
use in Alaska.
Vi = Volume of gasoline batch i produced or imported for use in Alaska
between January 1, 1998 and December 31, 2000, inclusive.
Ti = Toxics value of gasoline batch i produced or imported for use in
Alaska between January 1, 1998 and December 31, 2000, inclusive.
i = Individual batch of gasoline produced or imported for use in Alaska
between January 1, 1998 and December 31, 2000, inclusive.
n = Total number of batches of gasoline produced or imported for use in
Alaska between January 1, 1998 and December 31, 2000, inclusive.
M = Compliance margin.
(ii) The baseline volume associated with the baseline value
calculated in paragraph (e)(1)(i) of this section shall be calculated
using the methodology in paragraph (b)(2) of this section for the
gasoline described in paragraph (e)(1)(i) of this section.
(2)(i) A refiner or importer which is approved for a petition
submitted under Sec. 80.910(a)(2) for gasoline produced or imported
for use in Hawaii, the
[[Page 660]]
Commonwealth of Puerto Rico, and the Virgin Islands shall calculate the
applicable toxics baseline value using the following equation:
[GRAPHIC] [TIFF OMITTED] TP04JA05.009
Where:
TSBase = Baseline toxics value for gasoline produced or imported for
use in Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands.
Vi = Volume of gasoline batch i produced or imported for use in Hawaii,
the Commonwealth of Puerto Rico, and the Virgin Islands between January
1, 1998 and December 31, 2000, inclusive.
Ti = Toxics value of gasoline batch i produced or imported for use in
Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands between
January 1, 1998 and December 31, 2000, inclusive.
i = Individual batch of gasoline produced or imported for use in
Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands between
January 1, 1998 and December 31, 2000, inclusive.
n = Total number of batches of gasoline produced or imported for use in
Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands between
January 1, 1998 and December 31, 2000, inclusive.
M = Compliance margin.
(ii) The baseline volume associated with the baseline value
calculated in paragraph (e)(2)(i) of this section shall be calculated
using the methodology in paragraph (b)(2) of this section for the
gasoline described in paragraph (e)(2)(i) of this section.
* * * * *
[FR Doc. 05-43 Filed 1-3-05; 8:45 am]
BILLING CODE 6560-50-P