[Federal Register: October 7, 2003 (Volume 68, Number 194)]
[Proposed Rules]
[Page 57851-57855]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07oc03-25]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[FRL-7566-7]
Use of Alternative Analytical Test Methods in the Reformulated
Gasoline, Anti-Dumping, and Tier 2 Gasoline Sulfur Control Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: EPA proposes to allow the use of certain alternative
analytical test methods for measuring sulfur in gasoline and butane
under the Federal reformulated gasoline (RFG) and anti-dumping program
and the Federal gasoline sulfur control program. We also propose to
allow refineries to use any reasonable test method designed for
measuring the sulfur content of butane until January 1, 2004. After
that date, either the designated analytical test method or an allowed
alternative analytical test method would have to be used. The purpose
of today's proposal is to grant temporary flexibility until we issue a
comprehensive performance-based analytical test methods rule and to
fulfill the terms of a recent settlement agreement related to gasoline
sulfur test methods.
DATES: Comments or a request for a public hearing must be received by
November 6, 2003.
ADDRESSES: For more information or to request a public hearing, please
contact Anne Pastorkovich, Attorney/Advisor, Transportation & Regional
Programs Division, U.S. Environmental Protection Agency, 1200
Pennsylvania Avenue, NW. (6406J), Washington, DC 20460, or by e-mail to pastorkovich.anne-marie@epa.gov. No confidential business information
(CBI) should be submitted by e-mail.
EPA has established a public docket for this proposed rule under
Docket ID No. OAR-2003-0050, which is available for public viewing at
the Air and Radiation Docket and Information Center (EPA/DC) in the EPA
Docket Center, EPA West, Room B102, 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 and
Information Center 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 listings 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 identified above.
Any comments related to the proposed rule should be submitted to
EPA within 30 days of this notice, and according to the following
detailed instructions: Submit your comments to EPA online using EDOCKET
(our preferred method) or by mail to EPA Docket Center, Environmental
Protection Agency (6102T), 1200 Pennsylvania Avenue, NW., Washington,
DC 20460.
EPA's policy is the public comments, whether submitted
electronically or in paper format, will be made available for public
viewing in EDOCKET as EPA receives them and without change, unless the
comment contains copyrighted material, CBI, or other information whose
public disclosure is otherwise restricted by statue, is not included in
the official public docket, and will not be available for public
viewing in EDOCKET. For further information about the electronic
docket, see EPA's Federal Register notice describing the electronic
docket at 67 FR 38102 (May 31, 2002), or go to http://www.epa.gov/edocket
.
FOR FURTHER INFORMATION CONTACT: If you would like further information
about this proposed rule or to request a hearing, contact Anne
Pastorkovich, Attorney/Advisor, Transportation & Regional Programs
Division, (202) 564-8987 or by e-mail at pastorkovich.anne-marie@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Regulated Entities
Entities potentially regulated by the action are those that use
analytical test methods to comply with the RFG, anti-dumping, and
gasoline sulfur control program. Regulated categories and entities
include:
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SIC codes
Category NAICSs codes a b Examples of potentially regulated parties
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Industry.............................. 324110 2911 Petroleum refiners.
[[Page 57852]]
Industry.............................. 422710 5171 Gasoline Marketers and Distributors.
422720 5172
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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 all entities that we are now aware could
potentially be regulated by this action. Other types of entities not
listed in this table could also be regulated by this action. To
determine whether your business is regulated by this action, you should
carefully examine the applicability criteria in part 80 of title 40 of
the Code of Federal Regulations. If you have any questions regarding
the applicability of this action to a particular entity, consult the
person listed in the preceding section of this document.
II. Background and Summary of Today's Proposed Rule
Section 211(k) of the Clean Air Act (CAA) directs EPA to establish
standards requiring the greatest reduction in emissions of ozone
forming volatile organic compounds (VOCs) and toxic air emissions
achievable through the reformulation of conventional gasoline,
considering cost, other health and environmental factors and energy
requirements. The Act requires that RFG meet certain content standards
for oxygen, benzene, and heavy metals. RFG must be used in certain
ozone nonattainment areas, called ``covered areas.'' The CAA also
requires EPA to establish anti-dumping standards applicable to
conventional gasoline used in the rest of the country. The
Administrator signed the final RFG and anti-dumping regulations on
December 15, 1993,\1\ and these regulations became effective in January
1995.
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\1\ ``Regulation of Fuels and Fuel Additives: Standards for
Reformulated and Conventional Gasoline--Final Rule,'' 59 FR 7812
(February 16, 1994). See 40 CFR part 80 subparts D, E, and F.
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In 2000, EPA issued regulations establishing lower sulfur content
requirements for all gasoline \2\ and establishing stricter tailpipe
emissions standards for all passenger vehicles, including sport utility
vehicles (SUVs), minivans, vans and pick-up trucks. The gasoline sulfur
control program begins phasing-in in 2004, and, in general, refiners
must meet a refinery average sulfur standard of 30 ppm beginning in
2005 and a per gallon cap standard of 80 ppm beginning in 2006 (with
the exception of challenged refiners, and gasoline sold in certain
western states subject to geographic phase-in).
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\2\ ``Control of Air Pollution From New Motor Vehicles: Tier 2
Motor Vehicles Emissions Standards and Gasoline Sulfur Control
Requirements--Final Rule,'' 65 FR 6698 (February 10, 2000). See also
40 CFR part 80 subpart H for regulations applicable to gasoline
sulfur.
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Under the RFG, anti-dumping and gasoline sulfur program, refiners,
importers, and oxygenate blenders are required to test RFG and
conventional gasoline for certain parameters, including sulfur levels,
aromatic content, benzene content, and oxygen content. Test methods for
determining these parameters are specified in the regulation. For the
sulfur content of gasoline, 40 CFR 80.46(a)(1) specifies American
Society for Testing and Materials (ASTM) standard method D-2622-98,
entitled, ``Standard Test Method for Sulfur in Petroleum Products by
Wavelength Dispersive X-Ray Fluorescence Spectrometry'' as the
designated test method. In addition, the gasoline sulfur rulemaking
required a test method for determining the sulfur content of butane
blended into gasoline--ASTM standard method D 3246-96, entitled
``Standard Test Method for Sulfur in Petroleum Gas by Oxidative
Microcoulometry.''
In the gasoline sulfur control rulemaking, we specifically
requested comments on the designated test method. We also requested
comments on other ASTM methods. After considering comments received
from the regulated industry during the gasoline sulfur rulemaking
process, including many comments supportive of ASTM D 2622-98 as the
designated method, we decided to require the use of ASTM D 2622-98 for
measuring sulfur content. We did not name any alternative analytical
test methods because we anticipated that a comprehensive performance-
based analytical test method approach rule would be issued in the near
future. A comprehensive performance based test methods approach would
allow anyone to qualify additional analytical test methods for use in
demonstrating compliance with program requirements. We now know that a
comprehensive performance based test methods rulemaking will take more
time to complete than originally anticipated. We feel that permitting
specific ASTM test methods to be used as alternative analytical test
methods now provides a bridge to a more comprehensive performance based
test methods approach in the future and grants refiners, importers and
blenders significant flexibility and potential cost savings in meeting
their testing requirements.
As discussed in a May 16, 2003, Federal Register notice,\3\ Antek
Instruments, which manufactures testing equipment, filed a petition
challenging the final gasoline sulfur control rule. EPA and Antek
entered into negotiations and reached a proposed settlement agreement.
The proposed settlement agreement outlined a proposed rule which would
identify ASTM D 5453-00 e1 as an alternative test method
refiners and importers could use to comply with the requirement to test
gasoline for sulfur content, provided the test result is correlated
with ASTM D 2622-98. In today's action, EPA is proposing to revise its
regulations to include such a provision. The proposed settlement
agreement was available for comment until June 16, 2003. No adverse
comments were received.
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\3\ See ``Notice of Proposed Settlement Agreement; Request for
Public Comment,'' 68 FR 26604 (May 16, 2003).
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For the reasons discussed above, we are proposing to revise 40 CFR
80.46(a) to allow the use of ASTM D 5453-00 e1, entitled
``Standard Test Method for Determination of Total Sulfur in Light
Hydrocarbons, Motor Fuels and Oils by Ultraviolet Fluorescence,'' ASTM
D 6428-99, entitled ``Test Method for Total Sulfur in Liquid Aromatic
Hydrocarbons and Their Derivatives by Oxidative Combustion and
Electrochemical Detection,'' and ASTM D 3120-96 (Reapproved 2002
)e1, entitled ``Standard Test Method for Trace Quantities of
Sulfur in Light Petroleum Hydrocarbons by Oxidative Microcoulometry.''
Refiners and importers would be able to choose which of these test
methods best fits their needs for compliance measurements. We believe
that
[[Page 57853]]
permitting the use of these test methods is desirable from the
standpoint of permitting regulated parties more flexibility. A refiner
or importer would be able to determine gasoline sulfur content using
ASTM D 5453-00 e1 or any of the specified alternative
analytical test methods named in the rule, provided that the refiner or
importer result is correlated to ASTM D 2622-98.
In order to ``correlate'' a test result from an alternative test
method to the designated test method, a laboratory would have to
develop and apply a ``correlation equation'' to the alternative test
method result. Because the ``correlation equation'' is designed to
provide a prediction of the designated test method result from the use
of an alternative test method, the ``correlation equation'' eliminates
bias between the designated test method and the alternative test
method, so results may be compared between these methods. After
applying the correlation equation, the results obtained from an
alternative test method should be equivalent to the result you would
obtain if you had used the designated test method. Users of a
correlation equation should periodically verify its correlation to the
designated test method.
This notice of proposed rulemaking also proposes to permit the use
of ASTM D 4468-85 (Reapproved 2000), ``Standard Test Method for Total
Sulfur in Gaseous Fuels by Hydrogenolysis and Rateometric Colorimetry''
as an alternative test method for butane, because it is an ASTM
approved method that some refiners may elect to use. If a refiner,
importer, or blender chooses to measure butane levels with this
alternative analytical test method, the results would have to be
correlated to D 3246-96, ``Standard Test Method for Sulfur in Petroleum
Gas by Oxidative Microcoulometry,'' which is the test method currently
designated in the existing rule.
Some refiners and butane suppliers expressed concern that the
designated test method is not currently in wide use. When we issued the
final gasoline sulfur control regulations, we did not intend to require
the use of this method until January 1, 2004. However, the final
regulation inadvertently did not specify that date and we are
clarifying the effective date by this action. Until January 1, 2004,
any test method may be used to determine the sulfur content of butane.
We believe that this proposed rule, and our intent to establish a
comprehensive performance based test method approach in the future,
will advance the purposes of the ``National Technology Transfer and
Advancement Act of 1995,'' (NTTAA) section 12(d) of Public Law 104-113,
and Office of Management and Budget (OMB) Circular A-119. Both of these
documents are designed to encourage the adoption of standards developed
by ``voluntary consensus bodies'' and to reduce reliance on government-
unique standards where such consensus standards would suffice. This
proposed rule would provide for the use of alternative test methods for
the measurement of sulfur in gasoline and butane under the RFG, anti-
dumping, and gasoline sulfur control programs. Allowing these test
methods, which are widely available and approved by ASTM, a ``voluntary
consensus body,'' is directly consistent with the goals of the NTTAA
and OMB Circular A-119.
Any environmental effects of today's proposed action would be
minimal, as it would merely grant limited flexibility to regulated
parties in their choice of test method for determining the sulfur
content of gasoline and butane. The economic effects of today's
proposed action are expected to be positive, since it permits regulated
parties the flexibility to choose the test method they will use to
comply with existing regulations.
III. Administrative Requirements
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.''
This proposed rule is not a significant regulatory action within
the meaning of the Executive Order. It would not have an annual effect
on the economy of $100 million or more and is not expected to have any
adverse economic effects as described in the Order. This proposed rule
does not raise issues of consistency with the actions taken or planned
by other agencies, would not materially alter the cited budgetary
impacts, and does not raise any novel legal or policy issues as defined
in the Order.
B. Paperwork Reduction Act
This proposed rule would not add any new requirements involving the
collection of information as defined by the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. Today's proposed rule would only permit more
flexibility to parties in their choice of analytical test methods. OMB
has approved the information collection requirements contained in the
final reformulated gasoline (RFG) and anti-dumping rulemaking and
gasoline sulfur control rulemaking has assigned OMB control number
2060-0277.
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 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.
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
[[Page 57854]]
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 would not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603
and 604. Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule.
We have therefore concluded that today's proposed rule will relieve
regulatory burden for all small entities. By permitting alternative
analytical test methods for the measurement of sulfur in gasoline and
butane, smaller entities would be granted greater flexibility in
performing compliance testing. We continue to be interested in the
potential impacts of the proposed rule on small entities and welcome
comments on issues related to such impacts.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 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. The proposed rule would
impose no enforceable duty on any State, local or tribal governments or
the private sector.
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 would
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. The proposed rule is limited to
permitting flexibility in the choice of test methods. Thus, Executive
Order 13132 does not apply to this proposed rule.
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 proposed rule would apply to parties required to test gasoline and
butane for gasoline and butane 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 & 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 proposed rule is not
subject to Executive Order 13045, entitled ``Protection of Children
from
[[Page 57855]]
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), because it does not involve decisions on environmental health
risks or safety risks that may disproportionately affect children.
H. Executive Order 13211: Actions 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.
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, 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 advances the goals of the NTTAA by adopting test
methods developed by voluntary consensus standards bodies.
J. Statutory Provisions and Legal Authority
Statutory authority for today's proposed rule comes from sections
211(c), 211(i) and 211(k) of the CAA (42 U.S.C. 7545(c) and (k)).
Section 211(c) and 211(i) allows EPA to regulate fuels that contribute
to air pollution which endangers public health or welfare, or which
impairs emission control equipment. Section 211(k) prescribes
requirements for RFG and conventional gasoline and requires EPA to
promulgate regulations establishing these requirements. Additional
support for the fuels controls in today's proposed rule comes from
sections 114(a) and 301(a) of the CAA.
List of Subjects in 40 CFR Part 80
Environmental protection, Air pollution control, Fuel additives,
Gasoline, Diesel, Imports, Incorporation by reference, Motor vehicle
pollution, Reporting and recordkeeping requirements.
Dated: September 24, 2003.
Marianne Lamont Horinko,
Acting Administrator.
[FR Doc. 03-25134 Filed 10-6-03; 8:45 am]
BILLING CODE 6560-50-P