Regulation of Fuels and Fuel Additives: Modification of
Reformulated and Conventional Gasoline Regulations--Treatment of
Business Information Submitted Concerning Individual Baselines
[Federal Register: December 20, 1995 (Volume 60, Number 244)]
[Rules and Regulations]
[Page 65571-65575]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[AMS-FRL-5399-9]
Regulation of Fuels and Fuel Additives: Modification of
Reformulated and Conventional Gasoline Regulations--Treatment of
Business Information Submitted Concerning Individual Baselines
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: Under the Clean Air Act, as amended in 1990 (CAA or the Act),
the Environmental Protection Agency (EPA or the Agency) promulgated
anti-dumping regulations for conventional gasoline (gasoline not
certified as reformulated gasoline (RFG)). These regulations require
that conventional gasoline not be more polluting than it was in 1990
and include provisions for the development of individual refinery
baselines and other compliance provisions. Today's action modifies the
regulations concerning the publication and confidentiality of
individual baselines and information submitted to obtain an individual
baseline.
DATES: This final rule is effective December 12, 1995.
ADDRESSES: Materials relevant to this final rule can be found in Public
Docket A-95-03; materials relevant to the reformulated gasoline final
rule are contained in Public Dockets A-91-02 and A-92-12. These dockets
are located at Room M-1500, Waterside Mall (ground floor), U.S.
Environmental Protection Agency, 401 M Street SW., Washington, DC
20460. The docket may be inspected from 8 a.m. until 5 p.m. Monday
through Friday. A reasonable fee may be charged by EPA for copying
docket materials.
FOR FURTHER INFORMATION CONTACT: Christine M. Brunner, U.S. EPA, Fuels
and Energy Division, 2565 Plymouth Road, Ann Arbor, MI 48105.
Telephone: (313) 668-4287. To Request Copies of This Document Contact:
Delores Frank, U.S. EPA, Fuels and Energy Division, 2565 Plymouth Road,
Ann Arbor, MI 48105. Telephone: (313) 668-4295.
SUPPLEMENTARY INFORMATION:
I. Electronic Copies of Rulemaking Documents Through the Technology
Transfer Network Bulletin Board System (TTNBBS)
A copy of this final rule is available electronically on the EPA's
Office of Air Quality Planning and Standards (OAQPS) Technology
Transfer Network Bulletin Board System (TTNBBS). The service is free of
charge, except for the cost of the phone call. The TTNBBS can be
accessed with a dial-in phone line and a high-speed modem per the
following information:
TTN BBS: 919-541-5742
(1200-14400 bps, no parity, 8 data bits, 1 stop bit)
Voice Help-line: 919-541-5384
Accessible via Internet: TELNET ttnbbs.rtpnc.epa.gov
Off-line: Mondays from 8 AM to 12 Noon ET
A user who has not called TTN previously will first be required to
answer some basic informational questions for registration purposes.
After completing the registration process, proceed through the
following menu choices from the Top Menu to access information on this
rulemaking.
<T> GATEWAY TO TTN TECHNICAL AREAS (Bulletin Boards)
<M> OMS--Mobile Sources Information
<K> Rulemaking and Reporting
<3> Fuels
<9> File Area #9 * * * Reformulated gasoline
[[Page 65572]]
At this point, the system will list all available files in the
chosen category in reverse chronological order with brief descriptions.
These files are compressed (i.e., ZIPed). Today's notice can be
identified by the following title: CBI-FRM.ZIP. To download this file,
type the instructions below and transfer according to the appropriate
software on your computer:
<D>ownload, <P>rotocol, <E>xamine, <N>ew, <L>ist, or <H>elp Selection
or <CR> to exit: D filename.zip
You will be given a list of transfer protocols from which you must
choose one that matches with the terminal software on your own
computer. The software should then be opened and directed to receive
the file using the same protocol. Programs and instructions for dearchiving
compressed files can be found via <S>ystems Utilities from
the top menu, under <A>rchivers/de-archivers. After getting the files
you want onto your computer, you can quit the TTNBBS with the <G>oodbye
command. Please note that due to differences between the software used
to develop the document and the software into which the document may be
downloaded, changes in format, page length, etc. may occur.
II. Confidentiality of Information Submitted for Individual
Baselines
A. Introduction
Compliance with certain aspects of the reformulated and
conventional gasoline regulations depends on the individual baseline of
the refiner or importer.\1\ The final regulations issued by EPA in
December 1993 establish requirements for developing an individual
baseline which is the set of fuel parameter values, emissions and
volumes which represent the quality and quantity of the refiner's 1990
gasoline. See 40 CFR 80.91. The final rule also states that certain
information contained in a refiner's baseline submittal would not be
considered confidential, and that EPA would publish the individual
standards for each refinery, blender or importer upon approval of an
individual baseline. See 40 CFR 80.93(b)(6).
\1\ In general, the provisions regarding individual baselines
apply to refiners or importers of conventional gasoline. For brevity
in this discussion, the term ``refiner'' shall include both refiners
and importers.
Persons affected by this provision sought judicial review,
objecting to the release or publication of this information on grounds
of business confidentiality. American Petroleum Institute v. U.S.
Environmental Protection Agency, No. 94-1138 (D.C. Cir.), and
consolidated case Texaco, Inc. and Star Enterprises v. U.S.
Environmental Protection Agency, No. 94-1143 (D.C. Cir.). Based on
discussions with these parties, EPA reconsidered this provision and
proposed to revise it.\2\ 60 FR 40009, August 4, 1995. Under the
proposal, EPA would publish only a portion of the baseline information,
representing a refinery's baseline emissions values. Instead of
determining by regulation that the remaining baseline information
submitted by a refiner is non-confidential, EPA would address claims of
business confidentiality for this other baseline information under
EPA's regulations on ``Confidentiality of Business Information (CBI),''
40 CFR part 2 subpart B.
\2\ For a discussion of industry concerns regarding this issue
and EPA's rationale behind its proposal, see the support document
``Regulation of Fuels and Fuel Additives: Standards for Reformulated
and Conventional Gasoline--Detailed Discussion and Analysis'', Air
Docket A-95-03.
This preamble provides background information on individual
baselines and their use, discusses the proposal, and summarizes and
responds to the comments received on the proposal. The revisions
contained in the August 4, 1995 proposal are finalized as proposed.
Refiners may submit to EPA claims of confidentiality on baseline
information originally deemed not confidential by the December 1993
rule but for which claims of confidentiality would now be considered
under EPA's CBI regulations pursuant to this rulemaking. These claims
may be sent to Deborah Adler, U.S. EPA, Fuels and Energy Division, 2565
Plymouth Road, Ann Arbor, MI 48105. Telephone: (313) 668-4223.
B. Background
A refiner's individual baseline reflects the volume and average
quality of its gasoline for the year 1990. Unlike the standards for
reformulated gasoline (which for the most part are the same for all
refiners), the standards for conventional gasoline (the anti-dumping
standards) are generally expressed in terms of this individual
baseline, so that compliance with the standards is measured by
comparing current production of conventional gasoline against the
individual baseline, on an annual basis. For example, for conventional
gasoline under the simple model, a refiner's annual average value for
exhaust benzene emissions may not exceed its compliance baseline value
for exhaust benzene emissions, and its annual average values for
sulfur, olefins and T90 may not exceed 125 percent of its compliance
baseline values for these parameters. 40 CFR 80.101(b)(1). In most
cases, the compliance baseline is the same as the individual baseline.
40 CFR 80.101(f). For reformulated gasoline, certain standards
applicable during 1995 through 1997 are also expressed in terms of a
refiner's or importer's individual baseline. 40 CFR 80.41(h)(2).
EPA assigns an individual baseline after reviewing a refiner's
baseline submittal. The submittal includes the refiner's estimate of
its baseline values for the various required fuel parameters; exhaust
emissions values calculated from such parameters; 1990 gasoline
volumes; and the blendstock-to-gasoline ratios for 1990 through 1993.
Per the December 1993 final rule, this information would not be
considered confidential, and EPA would publish, for each refinery or
importer, certain baseline exhaust emissions and the sulfur, olefins
and T90 standards noted above. 40 CFR 80.93(b)(6).
C. Proposal
In the preamble to the December 1993 regulations, EPA stated that
it believed that each refiner's anti-dumping standard should be
publicly known. The standards for reformulated gasoline are publicly
known, but are generally the same for all refiners. EPA cited several
benefits of publishing a refiner's anti-dumping standards (i.e.,
specific individual baseline information). These included citizen suit
enforcement, more information to the public about EPA's standards, and
better deterrence to noncompliance.
However, as stated above, objections raised by certain parties
regarding publication of baseline information caused EPA to reconsider
which information should be published and which information might more
appropriately be handled under EPA's CBI regulations. Because EPA was
particularly concerned that the emissions standards for refiners
continue to be public,\3\ it did not propose to change the regulations
regarding publication of the individual baseline exhaust emissions
values that comprise a refiner's anti-dumping standards. However, EPA
did propose that the standards for sulfur, olefins and T90 applicable
during 1995 through 1997 not be published and instead that the
reporting requirements be revised such that a refiner would have to
note whether and how much its annual average for these values exceeded
their individual baseline value. This latter
[[Page 65573]]
reporting information would be considered non-confidential. EPA stated
that this would effectively provide the same benefits as publishing the
baseline values for these three parameters as it would clearly show
whether and how much a refiner violated the standards applicable for
these fuel parameters while preserving valid claims of business
confidentiality.
\3\ The Act specifies that conventional gasoline emissions
cannot be greater than they were in 1990. The simple model
requirements for sulfur, olefins and T90 were a result of the
Regulatory Negotiation process.
EPA's proposal to change the regulations regarding business
confidentiality was based in large part on evidence, presented by
interested parties in the oil refining industry, arguing that detailed
information regarding the quality of a business' 1990 gasoline
production would allow a competitor to calculate the business' current
cost of producing reformulated gasoline much more accurately with this
baseline information. This increased ability to predict current cost of
production would lead to significant adverse competitive harm.
According to the interested parties, information on individual baseline
fuel parameters (i.e., sulfur, olefins and T90) would have much more
adverse competitive impact than information on individual baseline
exhaust emission values.
In the proposal, EPA also stated that requests for release of other
baseline information would be governed by the regulations on the
confidentiality of business information at 40 CFR part 2 subpart B. By
deferring to 40 CFR part 2 subpart B, the factual and legal issues
concerning disclosure of this information may be resolved on a case-bycase
basis under EPA's CBI rules.
D. Summary and Analysis of Comments
EPA received less than ten comments on this issue; most generally
supported the proposal. Commenters agreed with EPA that the proposal
would properly inform the public of each refiner's standards yet would
minimize competitive harm and would protect each refiner's competitive
business interests. Commenters also mentioned that foregoing
publication of some baseline information does not hinder EPA's ability
to enforce the RFG (or anti-dumping) programs. One commenter stated
that no negative environmental effects would occur due to the proposed
change. EPA agrees with all of these comments.
Commenters also mentioned that indiscriminate publication of
baseline data would be contrary to the Agency's stated rationale for
establishing the procedures set forth in the CBI regulations. While EPA
believes the December 1993 final rule provisions were consistent with
the rationale of the Agency's CBI regulations, EPA believes that the
changes adopted today are a more appropriate mechanism to implement
this rationale. The December 1993 rule was based on the view that all
information submitted by a refiner regarding its individual baseline
should be considered non-confidential emissions data, and therefore
would not be protected from release notwithstanding its claimed
confidential nature. See CAA section 114, 208. In the rule adopted
today, EPA basically limits this determination to the information that
will be published--individual baseline exhaust emission levels. The
reporting information that is considered non-confidential does not meet
the definition of confidential business information, without addressing
whether it is emissions data. The confidentiality of the remaining
baseline information will be addressed under EPA's CBI regulations.
Instead of pre-determining whether this remaining information is
confidential business information or whether it is emissions data,
these issues will be resolved as needed on a case-by-case basis under
EPA's CBI regulations. This will allow for a case specific inquiry,
focusing on any unique aspects that might be specific to a refiner and
thereby reducing the risk of improper disclosure. Having reconsidered
these issues, especially the competitive harm that could occur if a
refiner's entire baseline information were available for release, EPA
believes that the alternative contained in the August 1995 proposal and
finalized today will retain the benefits of publishing all of a
refiner's individual baseline exhaust emission levels while minimizing
competitive harm. One commenter stated that with the proposal the
regulations now conformed to the CBI rules.
Another commenter stated that the Act exempts only emission data
from CBI rules and that the baseline information is not emission data.
EPA disagrees with this comment with respect to the individual baseline
exhaust emissions levels. With respect to the remaining individual
baseline information, the issue of whether it is or is not emissions
data is not resolved by this rulemaking, but will be resolved as needed
under EPA's CBI regulations.
Several commenters expressed concern about the ability to claim
confidentiality now on baseline information not originally marked
confidential. For example, under the December 1993 rule baseline values
for sulfur, olefins and T90 were not considered confidential, and many
baseline submitters may therefore not have claimed that information as
confidential. If not allowed to claim confidentiality now, someone
could arguably request and receive that information from EPA. However,
baseline submitters can, and in fact are encouraged to now submit
claims of confidentiality on baseline information that the submitter
considers confidential, even though not originally marked confidential.
EPA's CBI regulations do not prohibit a company from notifying EPA that
it now claims certain previously submitted information as business
confidential. See 40 CFR 2.203, 2.204(c). This also addresses the
suggestion by one commenter that EPA take precautions in releasing
other baseline information. Once a company makes such a claim, EPA's
regulations generally call for notifying the company and giving it an
opportunity to justify the claim of confidentiality prior to any
release of the information to the public.
One commenter was concerned about the public perception of any
published information, citing potential pressure (presumably to be
cleaner than one's standard) from competitors and non-informed public
and the resulting impact on investor support. The commenter implied
that this kind of pressure can be especially burdensome if performance
margins are tight. This same commenter was particularly concerned about
small refiners and stated that big refiners are protected by (the
ability to) aggregate baselines. While multi-refinery refiners do have
the option to aggregate baselines for compliance purposes, publication
of baseline information is on a refinery basis, and multi-refinery
refiners have no advantage over single-refinery refiners in that
regard. This commenter also implicitly suggested that EPA consider
relaxing the publication requirements for small refiners since EPA has
determined that the contribution to emissions of small refiners is
minimal to the point of relaxing some requirements. However, the issue
of when and under what conditions to allow for baseline adjustments is
a separate issue. Whether or not a refiner meets such criteria, EPA
believes there is a continuing value in publishing the applicable
standards, including standards based on baseline adjustments. This
value, described above, occurs whether the business is small or large.
There is also no indication that the business pressures noted by this
commenter are greater for small businesses.
E. Final Rule
EPA today finalizes the provisions regarding the confidentiality of
information submitted for individual
[[Page 65574]]
baselines and the publication of certain baseline information as
proposed in the August 4, 1995 Federal Register (60 FR 40009). The
applicable regulations have been modified slightly from the proposal.
Specifically, in Sec. 80.75, the proposed additional paragraphs (H),
(I) and (J) have been re-ordered to paragraphs (D), (G) and (J) in
today's rulemaking. By re-ordering these paragraphs, all paragraphs in
Sec. 80.75(b)(2)(ii) referring to a specific fuel parameter, e.g.,
sulfur, are grouped together, for benefit of the reader. Section 80.105
has also been modified from the proposal, and now requires that a
refiner's or importer's simple model standards for conventional
gasoline be reported (in addition to the requirements contained in the
December 1993 final rule and those contained in the proposal being
finalized today). This minor revision results in similar reporting
requirements for both reformulated and conventional gasoline under the
simple model.
III. Environmental and Economic Impacts
No environmental impacts are expected as a result of today's
action. Economic impacts should be generally beneficial to refiners as
one purpose of this action is to reduce any adverse competitive harm
that could occur without this change. The environmental and economic
impacts of the reformulated gasoline program are described in the
Regulatory Impact Analysis supporting the December 1993 rule, which is
available in Public Docket A-92-12 located at Room M-1500, Waterside
Mall (ground floor), U.S. Environmental Protection Agency, 401 M Street
SW., Washington, DC 20460.
IV. Compliance With the Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) of 1980 requires federal
agencies to examine the effects of their regulations and to identify
any significant adverse impacts of those regulations on a substantial
number of small entities. Pursuant to section 605(b) of the Regulatory
Flexibility Act, 5 U.S.C. 605(b), the Administrator certifies that this
rule will not have a significant economic impact on a substantial
number of small entities. In fact, today's action is designed to
minimize any adverse competitive impacts since only individual baseline
exhaust emissions, and not individual baseline fuel parameters values,
will be published. Additionally, by this action, less baseline
information will automatically be deemed non-confidential.
V. Administrative Designation
Pursuant to Executive Order 12866 (58 FR 51735, October 4, 1993),
the Agency must determine whether the regulatory action is
``significant'' and therefore subject to OMB review and the
requirements of the executive order. The Order defines ``significant
regulatory action as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this final rule is not a ``significant regulatory
action''.
VI. Paperwork Reduction Act
The Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq., and
implementing regulations, 5 CFR part 1320, do not apply to this action
as it does not involve the collection of information as defined
therein.
VII. Unfunded Mandates Reform Act
Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded
Mandates Act''), signed into law on March 22, 1995, EPA must prepare a
budgetary impact statement to accompany any proposed or final rule that
includes a Federal mandate that may result in expenditure by State,
local, and tribal governments, in the aggregate; or by the private
sector, of $100 million or more. Under section 205, EPA must select the
most cost-effective and least burdensome alternative that achieves the
objectives of the rule and is consistent with statutory requirements.
Section 203 requires EPA to establish a plan for informing and advising
any small governments that may be significantly or uniquely impacted by
the rule.
EPA has determined that the action promulgated today does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local or tribal governments in the
aggregate, or to the private sector. This action has the net effect of
reducing burden of the reformulated gasoline program on regulated
entities. Therefore, the requirements of the Unfunded Mandates Act do
not apply to this action.
VIII. Statutory Authority
The statutory authority for this action is granted to EPA by
Sections 114, 211 and 301(a) of the Clean Air Act as amended (42 U.S.C.
7414, 7545, and 7601(a)).
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 12, 1995.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, part 80 of title 40 of the
Code of Federal Regulations is amended as follows:
PART 80--REGULATION OF FUELS AND FUEL ADDITIVES
The authority citation for part 80 continues to read as follows:
Authority: Sec. 114, 211, and 301(a) of the Clean Air Act as
amended (42 U.S.C. 7414, 7545 and 7601(a)).
Section 80.75 is amended by revising the heading for paragraph
(b)(2), and by revising paragraphs (b)(2)(ii)(D) through (G), and
adding paragraphs (b)(2)(ii) (H) through (J) to read as follows:
Sec. 80.75 Reporting requirements.
* * * *
(b) * * *
(2) Sulfur, olefins and T90 averaging reports.
(i) * * *
(ii) * * *
(D) The difference between the applicable sulfur content standard
under Sec. 80.41(h)(2)(i) in parts per million and the average sulfur
content under paragraph (b)(2)(ii)(C) of this section in parts per
million, indicating whether the average is greater or lesser than the
applicable standard;
(E) The applicable olefin content standard under
Sec. 80.41(h)(2)(i) in volume percent;
(F) The average olefin content in volume percent;
(G) The difference between the applicable olefin content standard
under Sec. 80.41(h)(2)(i) in volume percent and the average olefin
content under paragraph (b)(2)(ii)(F) of this section in volume
percent, indicating whether the
[[Page 65575]]
average is greater or lesser than the applicable standard;
(H) The applicable T90 distillation point standard under
Sec. 80.41(h)(2)(i) in degrees Fahrenheit;
(I) The average T90 distillation point in degrees Fahrenheit; and
(J) The difference between the applicable T90 distillation point
standard under Sec. 80.41(h)(2)(i) in degrees Fahrenheit and the
average T90 distillation point under paragraph (b)(2)(ii)(I) of this
section in degrees Fahrenheit, indicating whether the average is
greater or lesser than the applicable standard.
* * * *
Section 80.93 is amended by revising paragraph (b)(6) to read as
follows:
Sec. 80.93 Individual baseline submission and approval.
* * * *
(b) * * *
(6) Confidential business information.
(i) Upon approval of an individual baseline, EPA will publish the
individual annualized baseline exhaust emissions, on an annual average
basis, specified in paragraph (b)(5)(ii) of this section. Such
individual baseline exhaust emissions shall not be considered
confidential. In addition, the reporting information required under
Sec. 80.75(b)(2)(ii) (D), (G) and (J), and Sec. 80.105(a)(4)(i) (E),
(H) and (K) shall not be considered confidential.
(ii) Information in the baseline submission which the submitter
desires to be considered confidential business information (per 40 CFR
part 2, subpart B) must be clearly identified. If no claim of
confidentiality accompanies a submission when it is received by EPA,
the information may be made available to the public without further
notice to the submitter pursuant to the provisions of 40 CFR part 2,
subpart B.
* * * *
Section 80.105 is amended by revising paragraph (a)(4) to read
as follows:
Sec. 80.105 Reporting requirements.
(a) * * *
(4)(i) If using the simple model:
(A) The applicable exhaust benzene emissions standard under
Sec. 80.101(b)(1)(i);
(B) The average exhaust benzene emissions under Sec. 80.101(g);
(C) The applicable sulfur content standard under
Sec. 80.101(b)(1)(ii) in parts per million;
(D) The average sulfur content under Sec. 80.101(g) in parts per
million;
(E) The difference between the applicable sulfur content standard
under Sec. 80.101(b)(1)(ii) in parts per million and the average sulfur
content under paragraph (a)(4)(i)(D) of this section in parts per
million, indicating whether the average is greater or lesser than the
applicable standard;
(F) The applicable olefin content standard under
Sec. 80.101(b)(1)(iii) in volume percent;
(G) The average olefin content under Sec. 80.101(g) in volume
percent;
(H) The difference between the applicable olefin content standard
under Sec. 80.101(b)(1)(iii) in volume percent and the average olefin
content under paragraph (a)(4)(i)(G) of this section in volume percent,
indicating whether the average is greater or lesser than the applicable
standard;
(I) The applicable T90 distillation point standard under
Sec. 80.101(b)(1)(iv) in degrees Fahrenheit;
(J) The average T90 distillation point under Sec. 80.101(g) in
degrees Fahrenheit; and
(K) The difference between the applicable T90 distillation point
standard under Sec. 80.101(b)(1)(iv) in degrees Fahrenheit and the
average T90 distillation point under paragraph (a)(4)(i)(J) of this
section in degrees Fahrenheit, indicating whether the average is
greater or lesser than the applicable standard.
(ii) If using the optional complex model, the applicable exhaust
benzene emissions standard and the average exhaust benzene emissions,
under Sec. 80.101(b)(2) and (g).
(iii) If using the complex model:
(A) The applicable exhaust toxics emissions standard and the
average exhaust toxics emissions, under Sec. 80.101(b)(3) and (g); and
(B) The applicable NOXemissions standard and the average
NOXemissions, under Sec. 80.101(b)(3) and (g).
* * * *
[FR Doc. 95-30986 Filed 12-19-95; 8:45 am]
BILLING CODE 6560-50-P
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