2011-27219. Regulation of Fuel and Fuel Additives: Alternative Test Method for Olefins in Gasoline

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is finalizing a rule to allow refiners and laboratories to use an alternative test method for olefin content in gasoline. This final 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:

This rule is effective November 21, 2011 without further notice. The incorporation by reference listed in this rule was approved by the Director of the Federal Register as of November 21, 2011.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2008-0558. All documents in the docket are listed on the http://www.regulations.gov Web site. 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 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., NW. (6406J), 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?

II. 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 and 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

K. Congressional Review Act

IV. Statutory Provisions and Legal Authority

I. General Information

A. Does this action apply to me?

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

II. 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 several fuel parameters including olefins. The test method for determining olefin content is specified at 40 CFR 80.46(b).

On January 31, 2011, EPA proposed to allow ASTM D6550-05 (SFC) as an alternative to the designated test method, ASTM D1319-03 e^[1] (FIA), for measuring olefin content of gasoline, provided the results are correlated to ASTM D1319-03 e^[1] using a site-specific correlation of FIA (volume percent) versus SFC (weight percent). The Agency also proposed that correlation be completed on a site-specific basis.^[1] As discussed in the proposal, the gasoline fuel set used to develop the correlation should span the range of olefin properties representative of that refinery's or importer's gasoline production. We also explained this gasoline fuel set would be analyzed by the test facility's laboratory using both ASTM D1319-03 e¹ (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 D1319-03 e¹ 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.

In response to this proposed rule, EPA received five comments from the American Petroleum Institute (API), BP America Incorporated (BP), the National Petroleum and Refiners Association (NPRA), Western States Petroleum Association (WSPA), and Shell Oil Products U.S. (SOPUS). All comments were in support of the proposal. API, NPRA, SOPUS and WSPA also provided additional comments. These additional 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).

The EPA is finalizing a rule to allow ASTM D6550-05, as an alternative test method to measure the olefin content of gasoline, provided its test results are correlated to ASTM D1319-03 e¹ on a site specific basis.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

This final 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 final 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 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 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 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.

This final rule does not impose a regulatory burden on anyone, including small businesses. Instead, this final 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 final rule will relieve regulatory burden for all effected 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 rules with significant Federal intergovernmental mandates and must inform, educate, and advise small governments on compliance with the regulatory requirements.

This final 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 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 final 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 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 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 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 and Safety Risk

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 final rule involves a technical standard. EPA is adopting an ASTM standard as described in Unit 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 final 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 allowance of ASTM D6500-05 will provide additional flexibility to the regulated community in meeting olefins in gasoline testing requirements. This final rule amendment does not relax control measures on sources regulated by the rule and therefore will not cause emission increases from these sources.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective November 21, 2011.

IV. Statutory Provisions and Legal Authority

Statutory authority for today's final 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 final 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: October 13, 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 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, in order to achieve an unbiased prediction of the result in volume percent, for the method specified in paragraph (b)(1) of this section.

* * * * *

(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.  76 FR 5319, January 31, 2011.