2011-2046. Regulation of Fuel and Fuel Additives: Alternative Test Method for Olefins in Gasoline

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to allow refiners and laboratories to use an alternative test method for olefin content in gasoline. This proposed rule will provide flexibility to the regulated community by allowing an additional test method for compliance measurement while maintaining environmental benefits achieved from our fuels programs.

DATES:

Comments or a request for a public hearing must be received on or before March 2, 2011.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-HQ-OAR-2008-0558, by one of the following methods:

○ http://www.regulations.gov: Follow the on-line instructions for submitting comments.

○ E-mail: [e-mail].

○ Fax: [phone].

○ Mail: “EPA-HQ-OAR-2008-0558, Environmental Protection Agency,

○ Mailcode: 2822T, 1301 Constitution Ave., NW., Washington, DC 20460.”

○ Hand Delivery: EPA Headquarters Library, Room 3334, EPA West Building, 1301 Constitution Ave., NW., Washington, DC. 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 Number EPA-HQ-OAR-2008-0558. EPA's policy is that all comments will be included in the public docket without change and may be made available online at http://www.regulations.gov,, http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, 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 http://www.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 instructions on submitting comments, go to Unit 1.B of the SUPPLEMENTARY INFORMATION section of this document: http://www.epa.gov/​epahome/​dockets.htm.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Docket, EPA Headquarters Library, Mail Code: 2822T, EPA West Building, 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 holidays. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding holidays. The telephone number for the Public Reading Room is [phone], and the facsimile number for the Air Docket is [phone].

FOR FURTHER INFORMATION CONTACT:

Joe Sopata, Chemist, Environmental Protection Agency, 1200 Pennsylvania Ave. (6406J), NW., Washington, DC 20460; telephone number: [phone]; fax number: [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

The contents of today's preamble are listed in the following outline.

I. General Information

A. Does this action apply to me?

B. What should I consider as I prepare my comments for EPA?

II. Proposed Rule Change

A. Alternative Test Method for Olefins in Gasoline

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act of 1995 (UMRA)

E. Executive Order 13123: Federalism

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

G. Executive Order 13045: Protection of Children From Environmental Health & Safety Risks

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

I. National Technology Transfer Advancement Act

J. Executive Order 12898: Federal Actions To Address Environmental Justice and Minority Populations and Low-Income Populations

IV. Statutory Provisions and Legal Authority

I. General Information

A. Does this action apply to me?

Regulated categories and entities potentially affected by this proposed action include those involved with the production, importation, distribution, sale and storage of gasoline motor fuel and diesel motor fuel.

The table below is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this proposed action. This table lists the types of entities that EPA is now aware could be potentially regulated by this proposed action. Other types of entities not listed in the table could also be regulated. To determine whether an entity is regulated by this proposed action, one should carefully examine the existing regulations in 40 CFR part 80. If you have questions regarding the applicability of this proposed action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Category	NAICSs Codes a	SIC Codes b	Examples of potentially regulated parties
Industry	324110	2911	Petroleum Refiners.
Industry	54138	8734	Testing Laboratories.
Industry	422710, 422720	5171, 5172	Gasoline Marketers and Distributors.
a North American Industry Classification System (NAICS).
b Standard Industrial Classification (SIC) system code.

B. What should I consider as I prepare my comments for EPA?

1. Submitting Confidential Business Information (CBI). Do not submit CBI to EPA through EDOCKET, regulations.gov or e-mail. Clearly mark the part of 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:

i. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

ii. Follow directions—The agency may ask you to respond to specific questions or organize comments referencing a Code of Federal Regulations (CFR) part or section number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used.

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustrate your concerns, and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

II. Proposed Rule Change

A. Alternative Test Method for Olefins in Gasoline

Refiners, importers and oxygenate blenders producing gasoline are required to test Reformulated Gasoline (RFG), and conventional gasoline (CG) for various fuel parameters including olefin content. American Society for Testing and Materials (ASTM) D1319 is currently the designated test method for measuring the olefin content of gasoline.^[1]

On July 6, 2006, the American Petroleum Institute (API) petitioned the Agency to allow ASTM D6550 as an alternative test method for measuring the olefin content of gasoline.^[2] The Agency agreed with this request, viewed API's petition as non-controversial, and because no adverse comments were anticipated published a direct final rule,^[3] along with a corresponding proposed rule,^[4] on December 8, 2008, that would allow ASTM D6550 as an alternative test method provided no adverse comment was received by January 7, 2009, which was the close of the comment period. Before the close of the comment period, however, the Agency received an adverse comment ^[5] on the proposal for the allowance of ASTM D6550 as an alternative test method. On February 6, 2009, the Agency published a partial withdrawal notice ^[6] for the allowance of ASTM D6550 as an alternative test method. Since then, the American Petroleum Institute (API) and the New York State Department of Environmental Conservation (NYSDEC) have provided additional comments concerning the use of this alternative test method. These comments have been summarized and our responses to them are in the Response to Comments Document that has been placed in the docket for this rulemaking (Docket ID Number EPA-HQ-OAR-2008-0558).

EPA is proposing to allow ASTM D6550-05 (SFC) as an alternative to the designated test method, ASTM D1319-03ε¹ (FIA), for measuring olefin content of gasoline, provided the results are correlated to ASTM D1319-03ε¹ using a site-specific correlation of FIA (volume percent) versus SFC (weight percent). The Agency is also proposing that correlation be completed on a site-specific basis. The Agency believes it is in a test facility's best interest to ensure that the gasoline fuel set used to develop the correlation spans the range of olefin properties representative of that refinery's or importer's gasoline production. This gasoline fuel set would be analyzed by the test facility's laboratory using both ASTM D1319-03ε¹ (also known as FIA, or the designated test method) and ASTM D6550-05. A resulting correlation equation would then be developed in terms of ASTM D1319-03ε¹ in volume percent and ASTM D6550-05 in weight percent. Thus, the applicable range of the resulting correlation from a facility's site specific correlation would be consistent with that specific facility's olefin content range. Furthermore, the requirement of correlating SFC test methods results to the FIA designated test method produces an SFC-FIA equivalent result that is suitable for input into the Complex Model or for meeting fuel reporting requirements.

EPA originally proposed a 0.857 factor to convert from mass percent to volume percent when using ASTM D6500-05. NYSDEC commented this conversion factor was not intended for universal use and may not be appropriate for all gasoline. API commented that there is no need to use the 0.857 conversion factor when developing a correlation between ASTM D6500-05 and ASTM D1319-03.ε¹ The Agency agrees with API's recommendation that there is no need to convert olefin content measured by ASTM D6550-05 in weight percent to volume percent. In today's proposal, EPA is omitting the initial conversion of olefin content measured by ASTM D6500-05 in weight percent to volume percent using the 0.857 factor, as earlier proposed on December 8, 2008.

NYSDEC commented that a bias in test measurement results may occur between ASTM D1319-03ε¹ and ASTM D6550-05. The Agency agrees with NYSDEC that a bias in gasoline olefin measurement results may exist between ASTM D1319-03ε¹ and ASTM D6550-05. In order to compensate for any bias that may exist between these two analytical test methods, EPA is proposing to require ASTM D6550-05 to be correlated to ASTM D1319-03,ε¹ its respective designated test method. Refiners or importers that choose to use ASTM D6550-05 for the measurement of olefin content in gasoline must report the correlated result, on a site-specific basis, with the designated method, ASTM D1319-03,ε¹ when using the proposed EPA-allowed alternative test method, ASTM D6550-05. The olefin result as determined by SFC (ASTM D6550-05) would be correlated to FIA (ASTM D1319-03ε¹) based on a specific site's production and never used directly for compliance or as an input into the Complex Model.

The Agency believes today's proposal is consistent with past Agency practice with our allowance of other alternative test methods as specified in 40 CFR 80.46. The Agency currently allows eight alternative test methods for the measurement of gasoline or butane properties provided their results are correlated to the fuel parameter's respective EPA designated test method. These alternative test methods are: ASTM D5453, ASTM D6920, ASTM D3120 and ASTM D7039 for sulfur in gasoline,^[7] ASTM D4468 and ASTM D3246 for sulfur in butane,^[8] ASTM D1319 for aromatics in gasoline,^[9] and ASTM D4815 for oxygenate content of gasoline.^[10] In addition, ASTM D4294, ASTM D6920 and ASTM D5453 are approved alternative test methods for measuring the sulfur content of 500 ppm diesel fuel provided its test results are correlated to the designated test method, ASTM D2622.^[11] The Agency has evaluated ASTM D6550 as an alternative test method for olefins in gasoline and agrees with API's request.^[12] EPA invites comments on today's proposal to allow ASTM D6550-05 as an alternative test method for olefin content of gasoline. Comments must be received on or before March 2, 2011.

Although not the subject of today's proposed rule, EPA intends to establish a performance-based test method approach (PBTM) rule which would provide criteria for the qualification of alternative test methods.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

This proposed rule is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO.

B. Paperwork Reduction Act

This proposed rule does not impose any new information collection burden. However, the Office of Management and Budget (OMB), under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., has approved the information collection requirements contained in the final RFG and anti-dumping rulemaking and has assigned OMB control number 2060-0277. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (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 direct final rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administrations' regulations at 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 direct final rule on small entities, I certify that this action will 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 rule on small entities.” 5 USC 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.

This proposed rule does not impose a regulatory burden on anyone, including small businesses. Instead, this proposed rule will have a positive impact by the allowance of ASTM D 6550-05 which will provide additional flexibility to the regulated community, including small businesses, in meeting olefins in gasoline testing requirements. We have therefore concluded that today's proposed rule will relieve regulatory burden for all affected small entities.

D. Unfunded Mandates Reform Act of 1995 (UMRA)

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, requires Federal agencies, unless otherwise prohibited by law, to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Federal agencies must also develop a plan to provide notice to small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates and must inform, educate, and advise small governments on compliance with the regulatory requirements.

This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. The proposed allowance of ASTM D 6550-05 will provide additional flexibility to the regulated community in meeting olefins in gasoline testing requirements. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA. This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.

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. The proposed allowance of ASTM D 6550-05 will provide additional flexibility to the regulated community in meeting olefins in gasoline testing requirements. Thus, Executive Order 13132 does not apply to this direct final rule.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 6, 2000). This action applies to gasoline refiners, blenders and importers that supply gasoline. The proposed allowance of ASTM D6500-05 will provide additional flexibility to the regulated community in meeting olefins in gasoline testing requirements. Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental Health & Safety Risks

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action 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: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211(66 FR 18355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer 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 involves a technical standard. EPA is proposing to adopt an ASTM standard as described in Units II.A of the SUPPLEMENTARY INFORMATION section of this document. The technical standard included in today's rule is a standard developed by ASTM, a voluntary consensus standards body, and thus raises no issues under the NTTAA. The ASTM standard in today's action may be obtained from ASTM International at 100 Barr Harbor Drive, PO Box C700, West Conshohocken, PA 19428-2959, 610-832-9585 (phone), 610-832-9555 (fax), or [e-mail] (e-mail); or through the ASTM Web site (http://www.astm.org).

J. Executive Order 12898: Federal Actions To Address Environmental Justice and Minority Populations and Low-Income Populations

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The proposed allowance of ASTM D6500-05 will provide additional flexibility to the regulated community in meeting olefins in gasoline testing requirements. This proposed rule amendment does not relax control measures on sources regulated by the rule and therefore will not cause emission increases from these sources.

IV. Statutory Provisions and Legal Authority

Statutory authority for today's proposed rule comes from sections 211(c) and 211(k) of the CAA (42.U.S.C. 7545(c) and (k)). Section 211(c) 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 CG 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.

Regulation of Fuel and Fuel Additives: Alternative Test Method for Olefins in Gasoline

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: January 25, 2011.

Lisa P. Jackson,

Administrator.

For the reasons set forth in the preamble, part 80 of title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows:

PART 80—REGULATION OF FUELS AND FUEL ADDITIVES

1. The authority citation for part 80 continues to reads as follows:

Authority: 42 U.S.C. 7414, 7521(l), 7545 and 7601(a).

Subpart D—[Amended]

2. Section 80.46 is amended by adding paragraphs (b)(2) and (h)(1)(iii) to read as follows:

§ 80.46

Measurement of reformulated gasoline fuel parameters.

* * * * *

(b) * * *

(2)(i) Any refiner or importer may determine olefin content using ASTM standard method ASTM D6550 (incorporated by reference, see paragraph (h) of this section) for purposes of meeting any testing requirement involving olefin content; provided that

(ii) The refiner or importer test result is correlated with the method specified in paragraph (b)(1) of this section on a site-specific basis.

* * * * *

(h) * * *

(1) * * *

(iii) ASTM standard method D6550-05 (“ASTM D6550”), Standard Test Method for Determination of Olefin Content of Gasolines by Supercritical-Fluid Chromatography, approved November 1, 2005.

* * * * *

Footnotes

1.  40 CFR 80.46(b).

2.  See Air Docket # EPA-HQ-OAR-2008-0558-0002.

3.  73 FR 74350, December 8, 2008.

4.  73 FR 74403, December 8, 2008.

5.  See Air Docket # EPA-HQ-OAR-2008-0558-0005.

6.  74 FR 6233, February 6, 2009.

7.  See 40 CFR 80.46(a)(3)(i) through 80.46(a)(3)(iv).

8.  See 40 CFR 80.46(a)(4)(i) through 80.46(a)(4)(ii).

9.  See 40 CFR 80.46(f)(3)(i).

10.  See 40 CFR 80.46(g)(2)(i).

11.  See 40 CFR 80.580(c)(2).

12.  See EPA-HQ-OAR-2008-0558-0010.