Removal of Requirement in Gasoline Deposit Control Additives Rule
Regarding the Identification of the Oxygenate Content of Transferred
Gasoline
[Federal Register: November 6, 1997 (Volume 62, Number 215)]
[Rules and Regulations]
[Page 59998-60001]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06no97-6]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[FRL-5917-9]
Removal of Requirement in Gasoline Deposit Control Additives Rule
Regarding the Identification of the Oxygenate Content of Transferred
Gasoline
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is amending the gasoline deposit control additives
program, (the ``detergent rule'') to remove the requirement that
certain information on the oxygenate content of transferred gasoline
must be included in the gasoline's product transfer document. EPA is
taking this action to avoid unnecessary disruption to the gasoline
distribution system and because the Agency believes that it will result
in no negative environmental impact.
In the proposed rules section of today's Federal Register, EPA is
proposing the same action covered by this direct final rule (i.e., to
amend the detergent rule to remove the requirement that certain
information on the oxygenate content of transferred gasoline must be
included in the gasoline's product transfer document), as well as
several other actions impacting the detergent rule. If adverse comment
or a request for a public hearing is received on this direct final
rule, EPA will withdraw the direct final rule and address the comments
received in a subsequent final rule on the related proposed rule. No
additional
[[Page 59999]]
opportunity for public comment on this removal of certain detergent
rule product transfer document oxygenate information will be provided.
DATES: This action will become effective on January 5, 1998, unless
notice is received by December 8, 1997 from someone who wishes to
submit adverse comment or requests an opportunity for a public hearing.
If such notice is received, EPA will withdraw this direct final rule,
and a timely notice will be published in the Federal Register to
indicate the withdrawal.
ADDRESSES: Interested parties may submit written comments (in duplicate
if possible) to Public Docket No. A-91-77, at the following address:
Air Docket Section (LE-131), room M-1500, 401 M Street SW, Washington,
DC 20460; phone (202) 260-7548; fax (202) 260-4000. The Agency also
requests that a separate copy be sent to the contact person listed
below. The docket is open for public inspection from 8:00 a.m. until
5:30 p.m. Monday through Friday, except on government holidays. As
provided in 40 CFR part 2, a reasonable fee may be charged for copying
docket materials.
This direct final rule is also available electronically on the day
of publication from the Office of the Federal Register internet Web
site listed below. A prepublication electronic copy of this notice is
also available from the EPA Office of Mobile Sources Web site listed
below. This service is free of charge, except for any cost that you
already incur for internet connectivity.
Federal Register Web Site:
http://www.epa.gov/fedrgstr/EPA-AIR/ (Either select desired
date or use Search feature.)
Office of Mobile Sources Web Site:
http://www.epa.gov/OMSWWW/ (Look in ``What's New'' or under the
specific rulemaking topic.)
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.
FOR FURTHER INFORMATION CONTACT: Judith Lubow, U.S. EPA, Office of
Enforcement and Compliance Assurance, Western Field Office, 12345 West
Alameda Parkway, Suite 214, Lakewood, CO 80228; Telephone: (303) 969-
6483, FAX (303) 969-6490.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Regulated Entities
II. Introduction
III. Removal of Identification Requirement of Specific Oxygenate
Content on Gasoline Product Transfer Documents (PTDs)
A. Background
B. Rule Amendment
IV. Environmental Impact
V. Economic Impact and Impact on Small Entities
VI. Public Participation and Effective Date
VII. Executive Order 12866
VIII. Unfunded Mandates
IX. Paperwork Reduction Act
X. Submission to Congress and General Accounting Office
XI. Statutory Authority
I. Regulated Entities
Entities potentially regulated by this action are those involved
with the production, distribution, and sale of gasoline and gasoline
detergent additives. Regulated categories and entities include:
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Category Examples of regulated entities
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Industry............................ Gasoline refiners and importers,
Gasoline terminals, Detergent
blenders, Gasoline truckers,
Gasoline retailers and wholesale
purchaser-consumers, and
Detergent manufacturers.
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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 types of entities that EPA is now aware could
potentially be regulated by this action. Other types of entities not
listed in the table could also be regulated. To determine whether your
organization is regulated by this action, you should carefully examine
the applicability requirements in Sec. 80.161(a), the detergent
certification requirements in Sec. 80.161(b), the program controls and
prohibitions in Sec. 80.168, and other related program requirements in
Subpart G, title 40, of the Code of Federal Regulations (CFR). If you
have any questions regarding the applicability of this action to a
particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
II. Introduction
Section 211(l) of the Clean Air Act (``CAA'') requires that, by
January 1, 1995, all gasoline must contain detergent additives to
prevent the accumulation of deposits in motor vehicle engines and fuel
supply systems. This CAA section also requires EPA to promulgate
specifications for the detergent additives. Detergent additives prevent
the accumulation of engine and fuel supply system deposits that have
adverse effects on vehicle emissions as well as on fuel economy and
driveability.
In response to section 211(l)'s requirements, EPA published a
Notice of Proposed Rulemaking (``NPRM'') on December 6, 1993 (59 FR
64213) proposing a detergent additives regulatory program. The
detergent program was finalized in two parts. Final regulations for the
interim detergent program, requiring the use of detergent additives in
gasoline but not mandating specific detergent efficiency testing, were
published on October 14, 1994 (59 FR 54678). Final regulations for the
detergent certification program, mandating the use of certified
detergents with specified detergent efficiency testing, were published
on July 5, 1996 (61 FR 35310).
One important implementation issue that has arisen since the
publication of the detergent certification rule concerns the
requirement that the product transfer documents (PTDs) for gasoline
transfers must identify all oxygenates found in the gasoline. 40 CFR
80.158(a)(5) and 80.171(a)(5). Members of the gasoline refining and
distribution industry informed EPA that this requirement would, as an
unintended consequence, significantly disrupt gasoline distribution.
\1\
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\1\ Letter to Judith Lubow, Office of Enforcement and Compliance
Assurance (OECA), EPA, from C.J. Krambuhl, Director, Manufacturing,
Distribution, and Marketing, American Petroleum Institute (API),
August 14, 1996, Docket item VI--D-01.
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For the reasons described below, EPA exercised its enforcement
discretion and announced by letter to the American Petroleum Institute
(``API'') that it would temporarily not enforce the PTD oxygenate
identification requirement pending resolution of the issue through a
rulemaking or until September 3, 1997, whichever occurrence came first.
\2\ The Agency reserved the right to rescind the exercise of this
enforcement discretion if it determined that restricted-use detergents
were actually being certified or that the PTD oxygenate identification
requirements otherwise became appropriate. The Agency further advised
that if violations involving the improper use of oxygenate-restricted
detergents occurred, parties wishing to successfully assert an
affirmative defense to liability for such violations might need to
provide information establishing the appropriate oxygenate content of
the gasoline in question. Subsequently, EPA extended this exercise of
enforcement discretion until implementation of this Direct Final Rule
which removes the specified PTD
[[Page 60000]]
oxygenate requirement, or until December 31, 1997, whichever comes
first. \3\
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\2\ Letter to C.J. Krambuhl, API, from Steven A. Herman,
Assistant Administrator, OECA, EPA, August 28, 1996, Docket item
VII-C-01.
\3\ Letter to C.J. Krambuhl, API, from Steven A. Herman,
Assistant Administrator, OECA, EPA, September 4, 1997, Docket item
VII-C-02.
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III. Removal of Identification Requirement of Specific Oxygenate
Content on Gasoline Product Transfer Documents (PTDs)
A. Background
The gasoline detergent additive program requires all regulated
parties transferring products controlled under the program to provide
to the transferee PTDs giving pertinent information about the products
transferred. (40 CFR 80.158 and 80.171) The products subject to the
detergent program PTD requirements are gasoline, detergent additives,
and additized components, such as ethanol, which are blended into
gasoline after the refinery process (additized post-refinery
components, or ``PRC''). For transfers of these regulated products, the
PTDs must identify the parties to the transfer, the product being
transferred, and other information about the product's regulatory
status.
One such requirement is that PTDs for transferred gasoline must
identify all oxygenates and PRCs contained in the gasoline. Further, if
the gasoline is comprised of commingled fuels, all oxygenates and PRCs
in the fuels comprising the commingled product must be identified. (40
CFR 80.158(a)(5) and 80.171(a)(5)) The purpose of this identification
requirement is to alert the parties receiving the gasoline about the
oxygenates and PRCs in the received product. This information would be
useful to the recipient because, under the detergent certification
program, parties may choose to additize gasoline with a detergent whose
certification is restricted for use only with a specific oxygenate or
with no oxygenate, or, in the case of fuel-specific certified
detergents, for use in gasoline without PRCs. Thus, parties choosing to
use such restricted-use detergents must know the oxygenate or PRC
(``oxygenate'') content of the gasoline they intend to additize with
these detergents. The PTD oxygenate identification requirement was
intended to provide such information for the transferred gasoline.
In creating this identification requirement, the Agency was not
aware that many parties did not know the specific oxygenate content of
the gasoline they were transferring. EPA has since learned that, under
typical industry practice prior to this requirement, parties commingled
gasolines without knowledge of what (if any) specific ethers (a type of
oxygenate) were present. Under the interim detergent rule's PTD
requirements, no information about the oxygenate content of base
gasoline was required. Parties were thus typically unaware of the
specific ether content (in type and concentration) of commingled
gasoline they received or possessed themselves. To comply with this new
oxygenate identification requirement and to become knowledgeable about
the ether status of their gasoline, parties would have to ascertain the
ether content of received gasoline, stop commingling gasolines with
different ether contents, or start testing all batches to determine
such content. In any of these scenarios, gasoline distribution as
presently practiced would be significantly disrupted.
It was never EPA's intention to disrupt gasoline distribution
practices through the imposition of this PTD oxygenate identification
requirement. Consequently, on August 28, l996, the Agency issued its
first enforcement discretion letter temporarily suspending enforcement
of this PTD requirement.
B. Rule Amendment
EPA does not believe that the benefits from the PTD requirement of
providing oxygenate information to those parties who might choose to
use oxygenate-restricted certified detergents warrants the resulting
disruption to the gasoline distribution system. Therefore, the Agency
is now amending the detergent program through this direct final rule to
eliminate the requirement that PTDs for gasoline must identify the
oxygenates found in the transferred product. At the same time, an NPRM
is being published to address this issue with full notice and comment.
Under the proposal, a new requirement would take the place of the
deleted PTD identification requirement. The proposed requirement would
mandate that those detergent-blending parties wishing to use oxygenate-
restricted detergents must maintain documentation fully identifying the
oxygenate content of the fuel into which the detergent was blended, as
evidence that the fuel complied with the detergent's oxygenate use
restriction. This direct final rule, however, is merely deleting the
PTD oxygenate identification requirement. The Agency believes this is
appropriate because no oxygenate-restricted detergents have been
certified to date, so there is presently no potential for
misadditization based on inappropriate use of oxygenate-restricted
detergents through the deletion of this PTD requirement. Further, the
deletion of this requirement until the issue is resolved through the
NPRM process does not in any way affect the detergent rule's
requirement of proper additization of gasoline in full compliance with
all certification restrictions of the detergent being used.
IV. Environmental Impact
This rule is expected to have no negative environmental impact.
Controls on proper gasoline additization are not affected by this rule.
Further, no oxygenate-restricted detergents have been certified yet, so
the absence of the specific PTD oxygenate information on transferred
gasoline will have no impact on the proper additization of such
gasoline.
V. Economic Impact and Impact on Small Entities
EPA has determined that this final rule will not have a significant
impact on a substantial number of small entities because it removes a
regulatory requirement with which parties would otherwise have to
comply. This rule is not expected to result in any additional
compliance cost to regulated parties and may be expected to reduce
compliance cost. Therefore, a regulatory flexibility analysis has not
been prepared.
VI. Public Participation and Effective Date
The Agency is publishing this action as a direct final rule because
it views it as non-controversial and anticipates no adverse comments.
However, in a separate Notice of Proposed Rulemaking (NPRM) in today's
Federal Register, the Agency is proposing, among other things, to
eliminate the PTD requirement should adverse or critical comments be
filed. Thus, today's direct final action will be effective January 5,
1998 unless the Agency receives notice by December 8, 1997 that adverse
or critical comments will be submitted or that a party requests the
opportunity to submit such oral comments pursuant to section 307(d)(5)
of the Clean Air Act, as amended.
If the Agency receives such comments, EPA will withdraw this action
before the effective date by publishing a subsequent document. All
public comments received will then be addressed in a subsequent final
rule based on the NPRM published elsewhere in today's Federal Register.
The Agency will not institute a second comment period on this action.
Any parties interested in commenting on this action should do so at
this time. If no such comments are received, the public is advised that
this action will be effective January 5, 1998.
[[Page 60001]]
VII. Executive Order 12866
Under Executive Order 12866,4 the Agency must determine
whether a regulation 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:
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\4\ 58 FR 51736 (October 4, 1993).
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(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 of 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
this Executive Order. 5
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\5\ Id. at section 3(f)(1)-(4).
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It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
VIII. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``UMRA''), Public Law 104-4, EPA must prepare a budgetary impact
statement to accompany any general notice of proposed rulemaking or
final rule that includes a federal mandate which may result in
estimated costs to State, local, or tribal governments in the
aggregate, or to the private sector, of $100 million or more. Under
Section 205, for any rule subject to Section 202 EPA generally must
select the least costly, most cost-effective, or least burdensome
alternative that achieves the objectives of the rule and is consistent
with statutory requirements. Under Section 203, before establishing any
regulatory requirements that may significantly or uniquely affect small
governments, EPA must take steps to inform and advise small governments
of the requirements and enable them to provide input.
EPA has determined that the final rule promulgated today does not
include a federal mandate as defined in UMRA. The rule does not include
a federal mandate that may result in estimated annual costs to State,
local or tribal governments in the aggregate, or to the private sector,
of $100 million or more, and it does not establish regulatory
requirements that may significantly or uniquely affect small
governments.
IX. Paperwork Reduction Act
The action in today's notice does not impose any new information
collection burden. Implementation of this action would eliminate the
existing requirement that product transfer documents (PTDs) for
gasoline must identify the oxygenates present. No new information
collection requirements would result from the implementation of the
regulatory amendment which is the subject of this action. To the
contrary, its implementation would eliminate a compliance burden from
the majority of regulated parties.
The Office of Management and Budget (OMB) has previously approved
the information collection requirements of the Regulation of Deposit
Control Additives contained in 40 CFR Part 80 under the provisions of
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned
OMB control number 2060-0275 (EPA ICR Numbers 1655-01, 1655-02, and
1655-03).
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.
Copies of the ICR documents may be obtained from Sandy Farmer,
Information Policy Branch; EPA; 401 M St., SW. (mail code 2136);
Washington, DC 20460 or by calling (202) 260-2740. Include the ICR and/
or OMB number in any correspondence.
X. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
XI. Statutory Authority
The statutory authority for the proposed action in this rule is
granted to EPA by sections 114, 211(a), (b), (c), and (l), and 301 of
the Clean Air Act as amended: 42 U.S.C. 7414, 7545(a), (b), (c) and
(l), and 7601.
List of Subjects in 40 CFR Part 80
Environmental protection, Fuel additives, Gasoline detergent
additives, Gasoline, Motor vehicle pollution, Penalties, Reporting and
recordkeeping requirements.
Dated: October 30, 1997.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, part 80 of title 40 of
the Code of Federal Regulations is amended as follows:
PART 80--[AMENDED]
1. The authority citation for part 80 continues to read as follows:
Authority: Sections 114, 211 and 301(a) of the Clean Air Act as
amended (42 U.S.C. 7414, 7545, and 7601(a)).
Sec. 80.158 [Amended]
2. Section 80.158(a) is amended as follows:
a. Paragraph (a)(5) is removed.
b. Paragraphs (a)(6) through (a)(10) are redesignated as paragraphs
(a)(5) through (a)(9).
Sec. 80.171 [Amended]
3. Section 80.171(a) is amended as follows:
a. Paragraph (a)(5) is removed.
b. Paragraphs (a)(6) through (12) are redesignated as paragraphs
(a)(5) through (a)(11).
[FR Doc. 97-29391 Filed 11-5-97; 8:45 am]
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