Regulation of Fuel and Fuel Additives: Gasoline and Diesel Fuel
Test Method Update
[Federal Register: October 2, 2003 (Volume 68, Number 191)]
[Proposed Rules]
[Page 56805-56809]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02oc03-15]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[FRL-7566-4]
Regulation of Fuel and Fuel Additives: Gasoline and Diesel Fuel
Test Method Update
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to take
action to make certain fuel testing requirements more consistent and
up-to-date by having refiners and laboratories use the most current
version of an American Society of Testing and Materials (ASTM)
analytical test method.
Specifically, we are proposing to update an ASTM designated
analytical test method, ASTM D 1319 to the most recent 2002a version
which if adopted will supersede earlier versions of this method in
EPA's motor vehicle fuel
[[Page 56806]]
regulations. This method is designated in EPA regulations for measuring
chemical compositions in reformulated gasoline (RFG), conventional
gasoline (CG), and diesel fuel, specifically aromatics and olefins in
CG and RFG and aromatics in diesel fuel. These updates allow for more
consistent use of the same methodology across EPA motor vehicle fuel
regulations and incoporate improvements in the test method procedures
that will ensure better operation.
DATES: The Agency must receive comments or a request for public hearing
by November 3, 2003.
ADDRESSES: If you wish to submit comments or request a public hearing,
you should send any written materials to the docket address listed and
to Joe Sopata, Chemist, Transportation & Regional Programs Division,
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW.
(6406J), Washington, DC 20460; or by e-mail to sopata.joe@epa.gov. All
comments and materials relevant to today's action are contained in
Public Docket No. A-2002-15 and docket A-2001-21 located at the
following address: EPA Docket Center (EPA/DC), Public Reading Room,
Room B102, EPA West Building, 1301 Constitution Avenue, NW.,
Washington, DC. Dockets may be inspected from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, except on government holidays. You may reach the
Air Docket by telephone at (202) 566-1742 and by facsimile at (202)
566-1741. You may be charged a reasonable fee for photocopying docket
materials, as provided in 40 CFR part 2.
FOR FURTHER INFORMATION CONTACT: If you would like further information
about this rule or to request a hearing, contact Joe Sopata, Chemist,
Transportation & Regional Programs Division, (202) 564-9034.
SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed
in the following outline.
I. Regulated Entities
II. Rule Changes
A. Updating ASTM D 1319 Test Method to 2002a Year Version
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
E. Executive Order 13132: 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 that Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
IV. Statutory Provisions and Legal Authority
I. Regulated Entities
Entities potentially affected by this action include those involved
with the production, importation, distribution, sale and storage of
gasoline motor fuel and diesel motor fuel.
The table below gives some examples of entities that may have to
comply with the regulations. However, since these are only examples,
you should carefully examine these and other existing regulations in 40
CFR part 80. If you have any questions, please call the person listed
in the FOR FURTHER INFORMATION CONTACT section above.
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Examples of potentially
Category NAICSs codes SIC codes regulated parties
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Industry..... 32411 2911 Petroleum refiners.
Industry..... 54138 8734 Testing Laboratories.
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\a\ North American Industry Classification System (NAICS).
\b\ Standard Industrial Classification (SIC) system code.
II. Rule Changes
A. Updating ASTM D 1319 Test Method to 2002a Year Version
Refiners, importers and oxygenate blenders producing gasoline and
diesel motor vehicle fuel are required to test Reformulated Gasoline
(RFG), Conventional Gasoline (CG) and diesel fuel for various fuel
parameters including olefins, and aromatics. ASTM test method D1319 is
currently a designated test method for measuring olefins \1\ in
gasoline and aromatics \2\ in diesel fuel and is also allowed as an
alternative test method for measuring aromatics \3\ in gasoline.
Because rules were adopted at different points in time, the regulations
currently cite three different versions of D 1319 (published in three
different years) for these applications.
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\1\ 40 CFR 80.46(b).
\2\ 40 CFR 80.2(z).
\3\ 40 CFR 80.46(f)(3).
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On February 26, 2002, the Agency published a final rule entitled
``Regulation of Fuel and Fuel Additives: Reformulated Gasoline
Transition.'' \4\ Among other things, this final rule updated certain
ASTM test methods for RFG and CG, designated in EPA regulations, to
their most recent ASTM version. Several designated test methods were
updated to their most recent version including methods covering oxygen
content, distillation properties, RVP, and aromatics. The designated
test method for olefins, ASTM D 1319, was updated by EPA only to its
1998 version and not to the most recent version. This was because the
1999 version of ASTM D 1319 (the most recent version at that time) had
mistakenly left out an important reference to use of another ASTM
method. ASTM D 5599-00, the missing test method, measures oxygenate
concentration when present in the gasoline sample. Measurement of
oxygenate content when oxygenates are present is a required procedure
when determining olefin content. Therefore, since ASTM D 5599-00 is
EPA's designated method for oxygenate determination, omission of this
procedure in the 1999 version of ASTM 1319 meant that it would not be
appropriate for EPA to adopt that version of ASTM 1319. We explained in
our response to comments that ``unless a determination is made that
ASTM D 5599-00 can be appropriately included as a method for measuring
oxygen and oxygen content with ASTM D 1319-99, EPA will retain the 1998
version of D 1319 as the designated test method for olefins.'' \5\
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\4\ February 26, 2002, (67 FR 8729).
\5\ See Air Docket #A-2001-21, Document #V-C-01.
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Recently, David Bradley, the ASTM Director of Committee D02 for
Petroleum Products and Lubricants, said in a letter to EPA that ASTM
has updated test method D1319 to a 2002 year version.\6\ Mr. Bradley
also pointed out that this most recent version of ASTM D 1319 now
includes the reference to ASTM D 5599 thus resolving the problem
associated with omission of EPA's designated test method for oxygen and
oxygen content. The American Petroleum Institute (API)
[[Page 56807]]
also submitted comments to EPA in support of this test method update of
ASTM D 1319 to the 2002 year version.\7\ Thus, both ASTM and API
support revising our motor vehicle fuels regulations to allow the use
of D1319-02a for testing of olefins.
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\6\ See Air Docket #A-2002-15, Document #II-D-01.
\7\ See Air Docket #A-2002-15, Document #II-D-02.
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In addition to updating our regulations to allow for the use of
ASTM D 1319-02a for determining olefins in gasoline (discussed above),
we are also today proposing to allow use of the newest version of D1319
for determination of aromatics content in RFG and CG (as an alternative
method) and in determining aromatics content in diesel motor fuel.
Previous versions of ASTM D1319 were allowed for determining aromatic
content under previous rulemakings.
Table 1 lists the designated analytical test methods and
alternative analytical test methods which are being updated for
parameters measured under RFG, CG, and diesel fuels program in today's
action. We have reviewed the 2002a version of ASTM test method D 1319
and we are in agreement with its revisions. We believe that the
revisions in ASTM D 1319-02a are not significant changes that would
cause a user of an older version of the same method to incur
significant costs. All of the revisions were deemed necessary by ASTM
so that improvements in the test method's procedures would ensure
better operation for the user of the test method. By updating ASTM D
1319 to the 2002a version for all three of these applications, the
required analytical methodologies will be more consistent, making it
easier for manufacturers of gasoline and diesel fuel to utilize the
ASTM technique for all fuels and properties being tested.
Table 1.--Designated & Alternative Analytical Test Methods Under RFG, CG
& Diesel Fuel Programs
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Fuel parameter Analytical test method
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Olefins................................ ASTM D 1319-02a, entitled,
``Standard Test Method for
Hydrocarbon Types in Liquid
Petroleum Products by
Fluorescent Indicator
Absorption.''
Aromatics (gasoline and diesel)........ ASTM D 1319-02a, entitled,
``Standard Test Method for
Hydrocarbon Types in Liquid
Petroleum Products by
Fluorescent Indicator
Absorption'', for diesel fuel,
this method is the designated
test method, for gasoline,
this method is an alternative
test method and if used as an
alternative method, its
results, must be correlated to
ASTM D 5769-98.
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In the ``Final Rules'' section of today's Federal Register, we are
publishing a direct final rule that matches the substance of this
proposed rule. If the Agency receives adverse comment or a request for
public hearing by November 3, 2003, we will withdraw the direct final
rule by publishing a timely withdrawal notice in the Federal Register.
If the Agency receives no adverse comment or a request for public
hearing by November 3, 2003, these test method changes will be
effective sixty (60) days after publication of the final rule in the
Federal Register. We are confident that sixty(60) days is sufficient
lead time for industry to become familiar and implement this most
recent ASTM test method for the applications mentioned above.
III. Statutory and Executive Order Reviews
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.''
Pursuant to the terms of Executive Order 12866, we have determined
that this proposed rule is not a significant regulatory action.
B. Paperwork Reduction Act
This action does not add any new requirements involving the
collection of information as defined by the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. The Office of Management and Budget (OMB) has
approved the information collection requirements contained in the final
RFG/anti-dumping rulemaking (See 59 FR 7716, February 16, 1994) and has
assigned OMB control number 2060-0277 (EPA ICR No. 1591.14). The OMB
has approved the information collection requirements contained in the
final Tax Exempt (Dyed) Highway Diesel Fuel rulemaking (See 66 FR
64817, December 14, 2001) and has assigned OMB control number 2060-0308
(EPA ICR No. 1718.03).
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. 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.
[[Page 56808]]
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 proposed rule on
small 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, we believe that this action will not have a significant
economic impact on a substantial number of small entities. We have
determined that no small entities will experience an impact from this
proposal. ASTM test method D 1319 is currently a designated test method
for measuring olefins in gasoline and aromatics in diesel fuel and is
also allowed as an alternative test method for measuring aromatics in
gasoline (see citations above in Section II.A). Because rules were
adopted at different points in time, the regulations currently cite
three different versions of ASTM D 1319 (published in three different
years) for these applications. Currently, if a small entity produces
both gasoline and diesel fuel, and it relies on ASTM D 1319 for
determining compliance with the fuel parameters mentioned above, it
must maintain three different versions of ASTM D 1319. These proposed
updates allow for more consistent use of the same methodology across
EPA motor vehicle fuel regulations, thus increasing flexibility for
small entities who manufacture gasoline or diesel fuel. Thus this
proposed rule is expected to reduce operating costs for all parties,
including small entities.
Although this proposed rule will not have a significant impact on a
substantial number of small entities, EPA has nonetheless tried to
reduce the impact of this rule on small entities. If the Agency
receives no adverse comment or request for public hearing on this
proposed rule, these test method changes will be effective sixty (60)
days after publication of this proposed rules corresponding direct
final rule in the Federal Register. We are confident that sixty (60)
days is sufficient lead time for small entities to become familiar and
implement this ASTM test method for its applications. We continue to be
interested in the potential impacts of the 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), Public
Law 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 rule would impose no
enforceable duty on any State, local or tribal governments or the
private sector. This rule applies to gasoline refiners, blenders and
importers that supply gasoline or diesel fuel.
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. This proposed rule updates an
ASTM test method to its most recent version. Thus, Executive Order
13132 does not apply to this proposed rule.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, 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
[[Page 56809]]
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 applies to gasoline refiners,
blenders and importers that supply gasoline or diesel fuel. Today's
action updates an ASTM test method to its most recent version, and does
not impose any enforceable duties on communities of Indian tribal
governments. Thus, Executive Order 13175 does not apply to this
proposed rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and 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 rule 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 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. EPA is allowing additional flexibility and streamlining the
regulations by updating an ASTM test method to its most current version
for three applications under its motor vehicle programs.
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 rule will update an ASTM test method which is a designated
analytical test method for two applications and an alternative test
method for one application to its most recent ASTM version. Today's
action does not establish new technical standards or analytical test
methods, although it does update an ASTM test method to its most
current version. To the extent that this action would allow the use of
standards developed by voluntary consensus bodies (such as ASTM) this
action would further the objectives of the NTTAA.
IV. 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)).
Sections 211(c) and 211(i) allow 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 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,
Administrator.
[FR Doc. 03-24908 Filed 10-1-03; 8:45 am]
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