Regulation of Fuels and Fuel Additives: Modifications to Standards and Requirements for Reformulated and Conventional Gasoline

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[Federal Register: December 28, 2001 (Volume 66, Number 249)]
[Rules and Regulations]
[Page 67098-67108]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28de01-13]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[FRL-7122-5]
RIN 2060-AG76

Regulation of Fuels and Fuel Additives: Modifications to
Standards and Requirements for Reformulated and Conventional Gasoline

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: With today's action EPA is finalizing certain proposed
modifications to the reformulated gasoline (RFG) and conventional
gasoline regulations. Through the 1990 amendments to the Clean Air Act
(CAA), Congress directed EPA to publish rules requiring that gasoline
sold in certain areas be reformulated to reduce vehicle emissions of
toxic and ozone-forming compounds. Congress also directed EPA to
establish rules setting anti-dumping standards for non-reformulated, or
``conventional'' gasoline. EPA published rules for the certification
and enforcement of RFG and provisions for conventional gasoline on
February 16, 1994 at 59 FR 7716.
Based on experience gained since the promulgation of these
regulations, on July 11, 1997, we proposed a variety of revisions to
the regulations relating to emissions standards, emissions models,
compliance-related requirements and enforcement provisions. In a final
rule published on December 31, 1997, we took final action on several of
the proposed revisions. Today's action finalizes certain other of the
proposed revisions.
The revisions in this final rule involve both RFG and conventional
gasoline. This rule finalizes procedures for combining finished
gasoline with other products to produce new blends of gasoline. These
procedures allow refiners to use conventional gasoline to produce RFG,
and to reclassify RFG with regard to VOC classification, activities
which were previously prohibited under the regulations. This rule also
identifies procedures and requirements regarding the change of service
of gasoline storage tanks. The emissions benefits achieved from the RFG
and conventional gasoline programs will not be reduced as a result of
this final rule.
On May 17, 2001 the National Energy Policy Development Group (NEPD)
recommended that EPA ``study opportunities to maintain or improve the
environmental benefits of state and local `boutique' clean fuel
programs while exploring ways to increase the flexibility of the fuels
distribution infrastructure, improve fungibility, and provide added
market liquidity.'' In response to the NEPD charge, EPA included in its
boutique fuel report a series of regulatory actions, including today's
action regarding the use of finished gasoline to produce new blends of
gasoline, intended to better facilitate seasonal gasoline transition
and address gasoline supply and fungibility concerns during periods of
low gasoline inventories. We are able to finalize this action now, in
advance of other intended EPA actions, because it was previously
proposed by EPA. We expect the flexibilities provided via today's
action will promote improved availability of fuel meeting the range of
environmental and market needs. Action on the other boutique fuel
regulatory recommendations targeted at facilitating the transition from
winter to summer fuel should be completed in advance of next year's
ozone season.

DATES: This rule is effective on December 28, 2001.

ADDRESSES: Materials relevant to this FRM are contained in Public
Docket No. A-97-03, Waterside Mall (Room M-1500), Environmental
Protection Agency, Air Docket Section, 401 M Street, S.W., Washington,
D.C. 20460. Materials relevant to the final rule establishing standards
for RFG and anti-dumping standards for conventional gasoline are
contained in Public Dockets--A-92-01 and A-92-12, and are incorporated
by reference.

FOR FURTHER INFORMATION CONTACT: Marilyn Bennett, Transportation and
Regional Programs Division, U.S. EPA, Ariel Rios Building, 1200
Pennsylvania Avenue, N.W. (6406J), Washington, D.C. 20460; telephone:
(202) 564-8989; FAX (202) 565-2085; e-mail mbennett@epa.gov.

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially affected by this action include those involved
with the production and importation of gasoline 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.

[[Page 67099]]

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Category NAICSs codes a SIC codes b Examples of potentially regulated parties
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Industry........................... 324110 2911 Petroleum refiners.
Industry........................... 422710 5171 Gasoline Marketers and Distributors.
422720 5172
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a North American Industry Classification System (NAICS).
b Standard Industrial Classification (SIC) system code.

Access to Rulemaking Documents Through the Internet

Today's notice is available electronically on the day of
publication from the Office of the Federal Register Internet Web site
listed below. Electronic copies of the preamble, regulatory language
and other documents associated with today's final rule are available
from the EPA Office of Transportation and Air Quality (OTAQ) Web site
listed below shortly after the fuel is signed by the Administrator.
This service is free of charge, except any cost that you already incur
for connecting to the Internet.
EPA Federal Register Web Site: http://www.epa.gov/fedrgstr/
EPA-AIR/

(Either select desired date or use Search feature)

OTAQ Web Site: http://www.epa.gov/otaq/

(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.

Outline of This Preamble

I. Previously Certified Gasoline
II. Changing Service of Gasoline Storage Tanks
III. Public Participation
IV. Administrative Requirements
V. Statutory Provisions and Legal Authority

I. Previously Certified Gasoline

Under 40 CFR 80.65(i) and 80.101(e)(1), refiners are required to
exclude from a refinery's compliance calculations gasoline that was not
produced at that refinery, and gasoline that was produced at that
refinery but was included in the refinery's compliance calculations as
part of another gasoline batch. Such gasoline is called ``previously
certified gasoline,'' or ``PCG.'' PCG is required to be excluded from
compliance calculations to avoid double counting of the gasoline, since
PCG is gasoline that was previously accounted for in the refiner's or
another refiner's compliance calculations.\1\
Where PCG is combined with blendstock to produce a new blend of
gasoline, the blendstock must be included in the refinery's compliance
calculations, and the PCG must be excluded. The regulations at
Sec. 80.101(g)(3) provide a method for calculating the emissions
performance of a blendstock which may be used for purposes of including
in compliance calculations a blendstock that is blended with PCG.
However, this method only applies to previously certified conventional
gasoline that is combined with blendstock to produce a new blend of
conventional gasoline. The regulations prior to today's rule did not
include provisions for using previously certified conventional gasoline
to produce RFG, or previously certified RFG to produce new blends of
gasoline.
In the Notice of Proposed Rulemaking (NPRM) issued July 11, 1997,
we proposed procedures for excluding PCG from compliance calculations
which allow previously certified conventional gasoline or previously
certified RFG to be used to produce new blends of gasoline, including
RFG. Today's rule finalizes these PCG procedures. The provisions at
Sec. 80.101(g)(3) for calculating the emissions performance of a
blendstock continue to be available. Under certain circumstances, for
example, where a refiner includes oxygenate blended at a downstream
terminal in the refinery's anti-dumping compliance calculations, the
provisions at Sec. 80.101(g)(3) may provide the most appropriate method
for excluding PCG from compliance calculations. See 62 FR 37364 (July
11, 1997), and 62 FR 68196 (December 31, 1997), for further discussion
of the provisions at Sec. 80.101(g)(3).
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\1\ The regulations at 40 CFR 80.2(d) define previously
certified gasoline as ``gasoline or RBOB that previously has been
included in a batch for purposes of complying with the standards for
reformulated gasoline, conventional gasoline or gasoline sulfur, as
appropriate.''
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Where the PCG procedures finalized in today's rule are followed,
refiners may reclassify conventional gasoline as RFG (or reformulated
gasoline blendstock for oxygenate blending--``RBOB''), or reclassify
RFG with regard to VOC control. Prior to today's final rule, the
regulations allowed previously certified RFG to be reclassified as
conventional gasoline for use in non-RFG areas; however, they
prohibited refiners from combining RFG that is used in RFG areas with
conventional gasoline, or combining RFG of different VOC designations.
See Sec. 80.78. These prohibitions had the effect of prohibiting
refiners from upgrading conventional gasoline to RFG, or reclassifying
RFG with regard to its VOC control category.
At the time the RFG regulations were promulgated, EPA was concerned
that the overall quality of the various gasoline pools may be degraded
if refiners were able to reclassify conventional gasoline as RFG or
reclassify one category of RFG as another category of RFG. For example,
a refiner could produce very ``clean'' conventional gasoline and
include it in its anti-dumping compliance calculations, and then
reclassify it as RFG with little or no additional blending, thus
enabling the refiner to meet the anti-dumping standards using gasoline
that, in fact, is used as RFG. This type of activity could result in a
degradation of the quality of the conventional gasoline pool, with
associated adverse environmental effects. However, the PCG procedures
finalized in today's rule include requirements and limitations which
allow conventional gasoline to be reclassified as RFG, and RFG to be
reclassified with regard to VOC control, without the potential for
adverse environmental effects. As a result, today's final rule revises
the prohibitions in Sec. 80.78 to allow parties to combine RFG (or
RBOB) with conventional gasoline or blendstock if the PCG procedures
are followed.
Under the PCG procedures finalized today, reclassifications using
PCG may occur only at refineries, including terminal blending
facilities registered as refineries. Refiners are required to determine
the volume and properties of each batch of PCG used in the refinery
operation along with the designation of the gasoline (RFG, RBOB or
conventional), and, for RFG or RBOB, the designation relating to VOC
control. The volume and properties of each batch of PCG must be
reported to EPA as a negative batch under the same designation as the
gasoline as it was received or produced by the refinery. The PCG then
may be used by the

[[Page 67100]]

refiner as another blendstock, and the gasoline produced using the PCG
is sampled and tested and included in compliance calculations without
regard to the PCG content. The gasoline produced using the PCG will not
necessarily have the same designation as the original PCG batch. As a
result, these procedures allow conventional gasoline to be upgraded to
RFG, non-VOC controlled RFG to be reclassified as VOC controlled RFG,
and RFG VOC Region 2 gasoline to be reclassified as RFG VOC Region 1
gasoline. Where previously certified RFG is blended with other
components to produce conventional gasoline, the refiner must
reclassify the RFG as conventional gasoline and follow the procedures
for using previously certified conventional gasoline to produce new
conventional gasoline.
RFG standards may be met on an annual average basis or on a per-
gallon basis. When using PCG, these two situations are handled somewhat
differently, as follows:
(1) Where standards are met on average at a refinery, a refiner who
uses PCG must meet each average standard based on the net average
properties of gasoline in the relevant averaging pool, consisting of
the positive volume and properties of all gasoline produced in that
averaging pool and the negative volume and properties of all PCG in
that averaging pool. Each averaging pool is required to have a net
``positive'' gasoline volume.
(2) Where a refiner has elected to meet a parameter or emissions
performance standard on a per-gallon basis, and a batch of RFG or RBOB
is produced using previously certified RFG, for this batch the refiner
must meet the more stringent of: (1) The per-gallon standard that
applies to the refinery under Sec. 80.41; or (2) the actual value for
that parameter or emissions performance measure for the previously
certified RFG used to produce the batch. Where previously certified
conventional gasoline is used to produce a batch of RFG or RBOB, the
gasoline produced must meet the per-gallon RFG standards under
Sec. 80.41.
Under the PCG procedures, any gasoline claimed as PCG must actually
be used in a refinery's operation. This is to ensure that the PCG
procedures will not cause a degradation in gasoline quality. For
example, if a refinery receives a batch of ``dirty'' conventional
gasoline and classifies it as PCG, but never uses it as a component for
gasoline production, the PCG would be included as a negative batch in
the refinery's compliance calculations and the refinery's conventional
gasoline pool would appear ``cleaner'' than it actually is.
The following table summarizes the PCG approach:

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Compliance with standards when using PCG
Type of previously certified gasoline (PCG) Type of gasoline produced ---------------------------------------------------------------
Per-gallon Average
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RFG or RBOB......................................... RFG or RBOB....................... New batch must meet the more Include PCG in RFG compliance
stringent of: Sec. 80.41 calculations as negative batch;
per gallon standards; or include new batch in RFG
PCG properties. compliance calculations.
All RFG pool volumes for
standards must be positive.
Conventional gasoline (CG).......................... RFG or RBOB....................... New batch must meet Sec. Include PCG in CG compliance
80.41 per gallon standards. calculations as negative batch;
include new batch in RFG
compliance calculations.
CG pool volume must be positive.
CG (or RFG) \1\..................................... CG................................ None........................ Include PCG in CG compliance
calculations as a negative
batch; include new batch in CG
compliance calculations.
CG pool volume must be positive.

We received a number of favorable comments on the proposal
regarding PCG. One commenter, however, said that requiring the net
volume of gasoline in a refinery's anti-dumping compliance calculations
to be positive creates an inconsistency with those parties who have
elected to aggregate refineries for purposes of complying with the
anti-dumping standards. We agree with the commenter, and today's final
rule modifies the proposed regulatory language to clarify that for
refiners who have elected to aggregate their refineries for anti-
dumping compliance, the requirement for the net volume of gasoline to
be positive applies to the anti-dumping compliance calculations of the
refiner's aggregation.
Another commenter suggested that EPA clarify that tank heels do not
have to be included in the volume accounted for as a negative batch,
assuming that proper change of tank service procedures are followed. In
the NPRM, we proposed procedures relating to the change of service of
gasoline storage tanks. These procedures are also finalized by today's
rule. See Sec. 80.78(a)(10), and Section II of this preamble for a
discussion of these procedures. Under these procedures, tank heels are
allowed to remain in a tank and may be mixed with products that
normally are required to be segregated in a situation where a party is
changing the service of a gasoline storage tank. The allowances under
these provisions are limited specifically to circumstances where the
change of service is for a legitimate operational reason and is not for
the purpose of combining categories of gasoline that otherwise must be
segregated, or for the purpose of combining gasoline with blendstock.
Accordingly, these provisions include specific change-of-service
requirements, one of which is that the volume of product in the tank
must be made as low as possible through normal pumping operations
before adding product of a new category. Where all of the requirements
of Sec. 80.78(a)(10) are met, a refiner is not required to account for
the volume of a PCG tank heel.
Where gasoline is produced at a refinery in a blending tank, a tank
heel of PCG must be tested and included in the refinery's compliance
calculations as a negative batch in the appropriate category for the
PCG. However, if the refiner has test results from the prior batch
which included the volume of the heel, and no other PCG product is
added to the tank, the test results from the prior batch may be used to
fulfill the testing requirements for the PCG heel. In situations where
other PCG product in addition to the PCG heel may be present in the
blending tank, the entire volume of PCG, including the heel, must be

[[Page 67101]]

tested and included in the refinery's compliance calculations as a
negative batch.
One commenter said that the proposed treatment is appropriate for
conventional gasoline that is upgraded at the same refinery where it
was originally certified, but not for conventional gasoline that was
produced at another refinery. In the latter case, the inclusion of a
negative batch in the anti-dumping calculations has the effect of
removing a batch of gasoline that was never included in the refiner's
pool in the first instance. Where conventional gasoline certified at
another refinery is upgraded to RFG or RBOB, the commenter suggested
that the negative batch should be applied to the RFG calculations,
leaving only the blendstocks combined with it in that refinery's RFG
compliance calculations. The commenter said that the proposal as
written would make it difficult for refineries that produce close to
100% RFG to upgrade PCG and/or blendstocks from other refineries to
RFG, since they may not produce sufficient volumes of conventional
gasoline to offset the negative batches. This commenter also suggested
that the source of the conventional gasoline (same refinery vs.
different refinery) be acknowledged in the negative batch data, which,
the commenter believes would preserve the flexibility for all refiners
while eliminating the ``gaming'' that concerns EPA.
As discussed above, the original prohibitions against reclassifying
certain products were included in the RFG rule because of a concern
that the overall quality of the gasoline pools could be degraded if
refiners were able to reclassify conventional gasoline to RFG, or to
reclassify certain categories of RFG into other categories of RFG.
Therefore, to prevent a degradation of the overall quality of a
gasoline pool, we believe that PCG used to produce gasoline of a
different category should be included as a negative batch in the
refinery's compliance calculations for the category originally
designated for the PCG. Although requiring the source of the PCG to be
included in the negative batch data may serve to deter persons from
using PCG for purposes of ``gaming,'' as the commenter suggested, we
believe this alone would not address the problem of degradation of the
overall gasoline pool. Unless a refiner is required to include all PCG
in compliance calculations as a negative batch, there may be the
potential for negative environmental consequences. Moreover, we believe
that it would be unreasonable and impractical to require a refiner who
sells gasoline that is later used as PCG by another refiner to adjust
its compliance calculations to reflect the other refiner's use of the
PCG. As a result, we believe that the most appropriate approach is to
require the refiner who uses the PCG to produce gasoline of a different
category to include the PCG as a negative batch in the refinery's
compliance calculations.
We understand that there may be situations where a refiner is
unable to avail itself of the flexibility provided by the PCG
provisions because of the limitations on this approach, particularly
those refiners who wish to upgrade PCG but who produce little or no
gasoline of the same category as the PCG to offset the PCG batches. We
are interested in extending the flexibility afforded by today's rule to
such refiners if it is possible to devise practical and effective
procedures for extending this flexibility without compromising the
environmental benefits of the RFG/anti-dumping program. As a result, we
are requesting comments on how the flexibility afforded in today's rule
can be practically extended to refiners in this situation. If, based on
the comments we receive, we are able to determine practical and
effective procedures for extending this flexibility, we would adopt
those procedures through notice and comment rulemaking. In the
meantime, we believe that finalizing the previously proposed procedures
for using PGC is appropriate as they will provide industry with
additional blending flexibility without compromising environmental
goals. We believe this additional flexibility will be beneficial to
refiners and may ease potential supply problems, particularly with
regard to RFG in the summertime.
Several commenters said that the proposed revision of
Sec. 80.78(a)(5), which prohibits the combining of RFG with
conventional gasoline or blendstock except where a refiner does so
under the requirements specified in Sec. 80.65(i), would have the
unintended effect of prohibiting the downgrading of RFG to conventional
gasoline. We agree this would be an unintended consequence of the
revision of Sec. 80.78(a)(5) as proposed. As a result, Sec. 80.78(a)(5)
is being finalized as proposed, except for minor word changes and the
addition of language which specifically allows RFG to be combined with
conventional gasoline or blendstock if the combined product is
designated as conventional gasoline.
To ensure effective enforcement of the RFG and conventional
gasoline regulations, today's rule includes recordkeeping requirements
applicable to the PCG option which require retention of records
demonstrating the storage and movement of the PCG from the time it is
received at the refinery until it is used in the production of
gasoline. Today's rule also includes a requirement to submit
information relating to PCG batches in compliance reports to EPA. In
addition, today's rule includes attest procedures which require the
auditor to verify that PCG was used to produce gasoline at the
refinery, and that the PCG batch report to EPA is consistent with both
the refiner's sampling and testing of the PCG and the PCG product
transfer documents when received at the refinery.
The recordkeeping and reporting requirements in today's rule were
included in the NPRM in the case of PCG used to produce RFG, but were
inadvertently omitted in the NPRM for PCG used to produce conventional
gasoline. We believe these recordkeeping and reporting requirements are
necessary enforcement tools for tracking the use of PCG for
conventional gasoline as well as RFG, and are a logical outgrowth of
the PCG proposal. The recordkeeping and reporting requirements for
using PCG to produce conventional gasoline are minimal, as they are for
RFG, and any burden associated with these requirements would be more
than offset by the additional flexibility provided by the PCG
provisions. We received no negative comments on the proposed
recordkeeping and reporting requirements for RFG producers under the
PCG rule, and we have no reason to believe that there would be any
unique burdens associated with the recordkeeping and reporting
requirements for conventional gasoline producers under the rule.
Consideration of the burdens associated with recordkeeping and
reporting for conventional gasoline producers as well as for RFG
producers who use PCG was included in the ICR for the proposed rule.
As a result, the recordkeeping and reporting provisions relating to
PCG used to produce RFG are being finalized as proposed, except that in
some cases the provisions have been reworded or reordered slightly from
the proposed rule for purposes of clarity. These modifications do not
change the substance of the rule as proposed. The recordkeeping and
reporting requirements relating to use of PCG to produce conventional
gasoline finalized in today's rule mirror the recordkeeping and
reporting requirements for PCG used to produce RFG. We received no
negative comments on the attest engagement requirements relating to the

[[Page 67102]]

PCG provisions, and these requirements being finalized as proposed.
Section 80.340(c) of today's rule provides that the procedures for
using PCG may be applied under the gasoline sulfur regulations in
Subpart H. We believe that the PCG procedures in today's rule provide
an appropriate alternative method to the existing methods in
Sec. 80.340 for demonstrating compliance with the sulfur requirements
where PCG is used to produce gasoline. Moreover, we believe that this
approach is necessary for purposes of regulatory consistency. Under the
gasoline sulfur regulations, parties are required to include in their
annual averaging sulfur reports batch information as reported under the
RFG/anti-dumping regulations. Where the PCG procedures in today's rule
are used, the batch reports submitted under the RFG/anti-dumping
regulations will reflect the PCG as a negative batch and the batch of
gasoline produced using the PCG as a separate new batch. Therefore,
where PCG is used, the method of demonstrating compliance under the
gasoline sulfur regulations should relate to the batch reports
submitted under the RFG/anti-dumping regulations. While this particular
approach was not proposed, we believe that the provisions for allowing
use of the PCG procedures under the gasoline sulfur regulations are a
necessary and logical outgrowth of the proposal for using PCG.
On May 17, 2001, the National Energy Policy Development Group
(NEPD) recommended that EPA ``study opportunities to maintain or
improve the environmental benefits of state and local `boutique' clean
fuel programs while exploring ways to increase the flexibility of the
fuels distribution infrastructure, improve fungibility, and provide
added market liquidity.'' In response to the NEPD charge, EPA included
in its boutique fuel report a series of regulatory actions, including
today's action regarding PCG, intended to better facilitate seasonal
gasoline transition and address gasoline supply and fungibility
concerns during periods of low gasoline inventories. We are able to
finalize the PCG procedures now, in advance of other intended EPA
actions, because they were previously proposed by EPA. We expect that
the flexibilities provided in today's action will promote improved
availability of fuel meeting the range of environmental and market
needs. Action on the other boutique fuel regulatory recommendations
targeted at facilitating the transition from winter to summer fuel
should be completed in advance of next year's ozone season.

II. Changing Service of Gasoline Storage Tanks

Today's rule finalizes procedures for changing the service of
gasoline storage tanks. These procedures were originally issued in
Question and Answer guidance documents. See Reformulated Gasoline and
Anti-Dumping Questions and Answers, November 21, 1994, February 21,
1995. As discussed below, these procedures may be used for tank
turnovers during the transition to VOC controlled gasoline in the
spring. We are currently assessing other aspects of the regulatory
requirements regarding the transition to the VOC control season. If we
determine that additional changes to the regulations relating to the
VOC transition period are appropriate, they will be addressed in a
subsequent Federal Register notice.
Section 80.78(a) requires the segregation of several categories of
gasoline. Prior to today's final rule, these segregation requirements
prohibited the mixing of any amount of the gasolines that must be
segregated. As a result, if a refiner wishes to change a tank's
service, and the old and new gasolines are types that are required to
be segregated, the new gasoline may not be added unless the tank is
completely free of any amount of the old gasoline. Moreover, under the
regulations prior to today's rulemaking, a party who combines any
volume of blendstock with RFG or conventional gasoline has produced an
additional volume of gasoline which constitutes ``refining.'' For any
such action, the refiner must meet all standards and requirements that
apply to refiners of RFG or conventional gasoline. As a result, if a
refiner were to change a gasoline storage tank's service in a manner
that results in some volume of blendstocks being mixed with RFG or
conventional gasoline, the refiner would be required to meet all of the
standards and requirements for that ``batch'' of gasoline.
We recognize that when many gasoline storage tanks are pumped as
low as possible, a residual volume of gasoline or blendstock remains in
the tank (called the tank ``heel''), and in the terminal's manifolds
and pipes that serve the tank. We believe it is very difficult and
impractical to eliminate these residual volumes. As a result, we
proposed that, under certain conditions and constraints, where a
refiner changes the service of a gasoline storage tank, pipe, or
manifold for legitimate business reasons (unrelated to any goal of
mixing dissimilar gasolines or blendstock), such refiner would be
allowed to mix products that normally must remain segregated.
We also proposed an additional option that would apply to oxygenate
blenders. We proposed that this option would be available only where
the oxygenate blender is unable to meet the tank transition
requirements discussed above. We proposed this option because, in some
cases, the requirements for tank transition under the proposed
provisions are not feasible without risk that a terminal would have to
be closed during at least part of the transition period. For example,
where a terminal operator supplies RFG containing MTBE during the
summer VOC season, and RFG containing ethanol outside the VOC season,
the terminal tank would have to transition from RBOB to RFG in the
spring, and from RFG to RBOB in the fall. Under the change-of-service
requirements described above, in the spring the storage tank's RBOB
content would have to be drawn-down to the minimum level possible
through normal pumping operations before any RFG could be added to the
tank. However, to meet this requirement, the party may have to take the
storage tank out of service if the ``minimum level'' is reached before
new product is available to be transferred into the tank. If the
terminal has limited tankage it may be unable to supply gasoline during
the time the storage tank remains out of service, which could adversely
affect gasoline supplies for some parties. The same difficulty could
occur when transitioning from RFG to RBOB in the fall.
To minimize the likelihood that a party would have to take a tank
out of service to transition product types, we proposed to allow
parties to receive RFG in a tank containing RBOB in the spring prior to
the beginning of the VOC season, and receive RBOB in a tank containing
RFG in the fall after the end of the VOC season. However, under this
option, parties would be required to ensure that all RFG downstream
standards, including the oxygen standard, are met during the
transition. In addition, the transition must occur outside the period
VOC control standards apply at the terminal (i.e., May 1 through
September 15 each year). For further discussion, see the Notice of
Proposed Rulemaking for this action at 62 FR 37358-59 (July 11, 1997).
We received one comment on the proposal regarding change of service
of gasoline storage tanks. The commenter said that the cite to
Sec. 80.78(a)(1)(iii) in the change of service provisions appears to be
incorrect. We agree with the comment, and the provisions for changing
service of gasoline storage

[[Page 67103]]

tanks are being finalized as proposed, except that the cite to
Sec. 80.78(a)(1)(iii) has been deleted.

III. Public Participation

In the NPRM, we solicited comments on the need to take the actions
proposed, including the actions finalized today. We have reviewed and
considered all written comments on the provisions in today's rule.
Responses to comments are contained in the preamble to this rule. All
comments received by EPA are located in the EPA Air Docket, Docket A-
97-03 (See ADDRESSES section of this preamble). Comments solicited at
the end of Section I. of this preamble should be submitted to the
address listed in the ADDRESSES section of this preamble. Please also
submit a copy to the person listed in the FOR FURTHER INFORMATION
CONTACT section of this preamble.

IV. Administrative Requirements

A. Administrative Designation and Regulatory Analysis

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency is required to determine whether the regulatory action is
``significant'' and therefore subject to review by the Office of
Management and Budget (OMB) and the requirements of the Executive
Order. The order defines a ``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 final rule is not a ``significant regulatory action.''

B. Compliance With the Regulatory Flexibility Act

We have determined that this rule would not have a significant
impact on a substantial number of small entities, and that it is
therefore not necessary to prepare a regulatory flexibility analysis in
conjunction with this final rule. This rule would not have a
significant impact on a substantial number of small entities because it
involves optional provisions intended to promote successful
implementation of the RFG and anti-dumping requirements and to afford
regulated parties with greater flexibility to blend gasoline and
implement tank turnovers. As such, this final rule will be beneficial
to industry and may have the potential to ease gasoline supply
shortages.

C. Paperwork Reduction Act

The information collection requirements related to the provisions
finalized today have been submitted for approval to the Office of
Management and Budget (OMB) under the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. An Information Collection Request
(ICR) was prepared by EPA (ICR No. 1591.12) and a copy may be obtained
from Susan Auby, OIC Collection Strategies Division; U.S. Environmental
Protection Agency (mail code 2822); 1200 Penn. Ave NW; Washington, DC
20460, or by calling (202) 260-4901. Insert the ICR title and/or OMB
control number in any correspondence. Copies may also be downloaded
from the Internet at http://www.epa.gov/icr.
Under today's final rule, EPA is requiring refiners to keep certain
records associated with the provisions for using PCG to produce
gasoline. However, EPA believes that this requirement will be met using
documents created and kept for commercial business purposes; i.e.,
documents that show the movement of PCG to blending tanks and volume
and parameter measurements. This requirement, therefore, is not
expected to impose additional recordkeeping burdens on regulated
parties. This final rule also requires refiners to include information
regarding PCG batches in their RFG and anti-dumping compliance reports.
However, since the required information regarding PCG batches, such as
volume and parameter measurements, will be created for commercial
business purposes, including this information in the EPA reports is
expected to impose only a minimal additional burden on regulated
parties. An estimate of the information collection burden is contained
in the ICR for this rule.\2\
---------------------------------------------------------------------------

\2\ There are no new recordkeeping or reporting requirements
included in today's final tank change-over provisions. Any
recordkeeping obligations associated with the refining or blending
activities, and related sampling, described in the new tank change-
over provisions are covered by an existing reformulated gasoline
ICR. OMB Control #2060.0277. Additionally, to the extent that the
new tank change-over provisions allow for activities that would
otherwise subject a party to regulation as a refiner, the very
limited sampling and testing obligations of today's final rule
represent a relaxation of the sampling and testing obligations
otherwise applicable to refiners, and therefore a relaxation in any
potential recordkeeping and reporting obligations.
---------------------------------------------------------------------------

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 the 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 Chapter 15.

D. Intergovernmental Relations

1. 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 for
any single year. Before promulgating a 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 that is
not the least costly, most cost-effective, or least burdensome
alternative if EPA provides an

[[Page 67104]]

explanation in the final rule of why such an alternative was adopted.
Before we establish any regulatory requirement that may
significantly or uniquely affect small governments, including tribal
governments, we must develop a small government plan pursuant to
section 203 of the UMRA. Such a plan must provide for notifying
potentially affected small governments, and enabling officials of
affected small governments to have meaningful and timely input in the
development of our regulatory proposals with significant federal
intergovernmental mandates. The plan must also provide for informing,
educating, and advising small governments on compliance with the
regulatory requirements.
This final rule contains no federal mandates for state, local, or
tribal governments as defined by the provisions of Title II of the
UMRA. The rule imposes no enforceable duties on any of these
governmental entities. Nothing in this final rule would significantly
or uniquely affect small governments.
EPA has determined that this rule contains no federal mandates that
may result in expenditures of more than $100 million to the private
sector in any single year. This action provides refiners with optional
procedures for blending gasoline and performing tank turnovers. This
action, in fact, is expected to reduce the burden on regulated entities
by providing them with this additional flexibility. Therefore, the
requirements of the Unfunded Mandates Act do not apply to this action.
2. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
On January 1, 2001, Executive Order 13084 was superseded by
Executive Order 13175. However, this rule was developed during the
period when Executive Order 13084 was still in force, and so Tribal
considerations were addressed under Executive Order 13084.
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian Tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian Tribal governments. The requirements for private
businesses in today's document would have national applicability, and
thus would not uniquely affect the communities of Indian Tribal
Governments. Further, no circumstances specific to such communities
exist that would cause an impact on these communities beyond those
discussed in the other sections of today's document. Thus, EPA's
conclusions regarding the impacts from the implementation of today's
rule discussed in the other sections of this document are equally
applicable to the communities of Indian Tribal governments.
Accordingly, the requirements of section 3(b) of Executive Order 13084
do not apply to this rule.
3. 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.''
Under Section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law, unless
the Agency consults with State and local officials early in the process
of developing the proposed regulation.
Section 4 of the Executive Order contains additional requirements
for rules that preempt state or local law, even if those rules do not
have federalism implications (i.e., the rules 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.) Those
requirements include providing all affected state and local officials
notice and an opportunity for appropriate participation in the
development of the regulation. If the preemption is not based on
express or implied statutory authority, EPA also must consult, to the
extent practicable, with appropriate state and local officials
regarding the conflict between state law and federally protected
interests within the Agency's area of regulatory responsibility.
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. This rule allows industry
greater flexibility to blend gasoline components in a manner that will
not result in any negative effect on air quality. As a result, the
effect of this rule on the states, if any, will be positive in that the
blending flexibility afforded by this rule may help to ensure that
adequate supplies of gasoline are available, particularly in areas that
require RFG. Thus, the requirements of section 6 of the Executive Order
do not apply to this rule.

E. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Section 12(d) of Public Law 104-113, directs EPA
to use voluntary consensus standards in its regulatory activities
unless it 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) 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.

[[Page 67105]]

Today's rule includes a provision which requires the testing of
gasoline in a storage tank after the service of the tank has been
changed. This provision is included in today's rule to ensure that the
quality of the gasoline is not compromised through the process of
changing the service of the tank. This provision is consistent with the
NTTAA since it allows parties to use alternative test methods to
fulfill this requirement rather than using the regulatory test methods,
provided that the alternative methods are approved by the American
Society of Testing and Materials (ASTM), the protocols of the ASTM
methods are followed, and the alternative methods are correlated to the
regulatory method.

F. Executive Order 13045: Children's Health Protection

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, section 5-501 of the Order directs the Agency to
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.
This final rule is not subject to the Executive Order because it is
not an economically significant regulatory action as defined by
Executive Order 12866 and it does not concern an environmental health
or safety risk that EPA has reason to believe may have a
disproportionate effect on children. The reformulated gasoline program
is designed to reduce vehicle emissions of toxic and ozone-forming
substances. This rule will not affect the air quality benefits of the
reformulated gasoline program.

G. 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 summit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. 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 United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).

H. Executive Order 13211 (Energy Effects)

This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866. Although no
assessment is required under Executive Order 13211, we believe that
today's rule should help to alleviate energy supply or distribution
concerns in certain situations, since the additional flexibility
provided to refiners under the rule will help to facilitate seasonal
gasoline transitions and address gasoline supply and fungibility
problems during periods of low gasoline inventories.

V. 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
conventional gasoline and requires EPA to promulgate regulations
establishing these requirements. Additional support for the procedural
aspects of 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, Imports, Motor vehicle pollution, Reporting and recordkeeping
requirements.

Dated: December 19, 2001.
Christine Todd Whitman,
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--REGULATION OF FUELS AND FUEL ADDITIVES

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

Authority: Secs. 114, 211, and 301(a) of the Clean Air Act, as
amended (42 U.S.C. 7414, 7545 and 7601(a)).

2. Section 80.65 is amended by revising paragraph (i) to read as
follows:

Sec. 80.65 General requirements for refiners, importers, and oxygenate
blenders.

* * * * *
(i) Exclusion of previously certified gasoline. Any refiner who
uses previously certified reformulated or conventional gasoline or RBOB
to produce reformulated gasoline or RBOB must exclude the previously
certified gasoline for purposes of demonstrating compliance with the
standards under Sec. 80.41. This exclusion must be accomplished by the
refiner as follows:
(1)(i) Determine the volume and properties of each batch of
previously certified gasoline used to produce reformulated gasoline or
RBOB using the procedures in paragraph (e)(1) of this section and
Sec. 80.66, and the independent analysis requirements in paragraph (f)
of this section in the case of previously certified reformulated
gasoline.
(ii) In the case of previously certified reformulated gasoline or
RBOB determine the emissions performances for toxics and
NO_X, and VOC for VOC-controlled gasoline, and the
designations for VOC control.
(iii) In the case of previously certified conventional gasoline
determine the exhaust toxics and NO_X emissions performances.
(2) Determine the volume and properties, and the emissions
performance for toxics and NO_X, and VOC for VOC-controlled
gasoline, of any batch of reformulated gasoline or RBOB produced at the
refinery using previously certified gasoline and include each batch in
the refinery's compliance calculations without regard to the presence
of previously certified gasoline in the batch.
(3) In the case of any parameter or emissions performance standard
that the refiner has designated for the refinery to meet on a per-
gallon basis under paragraph (d)(2)(v) of this section, the per-gallon
standard that applies to any batch of reformulated gasoline or RBOB
produced by the refinery is as follows:
(i) When using any previously certified reformulated gasoline or
RBOB, the more stringent of:
(A) The per-gallon standard that applies to the refinery under
Sec. 80.41; or
(B) The most stringent value for that parameter or emissions
performance for any previously certified reformulated gasoline or RBOB
used to produce the batch.
(ii) When using any previously certified conventional gasoline, the
per-gallon standard that applies to the refinery under Sec. 80.41.

[[Page 67106]]

(4) In the case of any parameter or emissions performance standard
that the refiner has designated for the refinery to meet on average
under paragraph (d)(2)(v) of this section, any previously certified
gasoline must be excluded from the refinery's compliance calculations
as follows:
(i) Where a refiner uses previously certified reformulated gasoline
or RBOB to produce reformulated gasoline or RBOB:
(A) The refiner must include the volume and properties of any batch
of previously certified reformulated gasoline or RBOB in the refinery's
compliance calculations for the standard under Sec. 80.67(g) as a
negative batch, by multiplying the term V_i in
Sec. 80.67(g)(1)(ii) (i.e., the batch volume) times negative 1; and
(B) The negative batch under paragraph (i)(4)(i)(A) of this section
must be included in the averaging categories that correspond to the
designation regarding VOC control of the previously certified gasoline
batch when received; and
(C) The net volume of gasoline in the refinery's reformulated
gasoline compliance calculations must be positive in each of the
following categories where the standard is being met on average:

------------------------------------------------------------------------
Gasoline category that must
Standard have net positive volume
------------------------------------------------------------------------
(1) Oxygen................................ All RFG \1\.
(2) Benzene............................... All RFG and RBOB.
(3) VOC emissions performance............. (i)RFG and RBOB that is VOC-
controlled for Region 1.
(ii) RFG and RBOB that is
VOC-controlled for Region
2.
(4) Toxics emissions performance.......... All RFG and RBOB.
(5) NO_X emissions performance............. (i) All RFG and RBOB.
(ii) RFG and RBOB that is
VOC-controlled.
------------------------------------------------------------------------
\1\ ``RFG'' is an abbreviation for reformulated gasoline.

(ii) Where a refiner uses previously certified conventional
gasoline to produce reformulated gasoline or RBOB:
(A) The refiner must include the volume and properties of any batch
of previously certified conventional gasoline as a negative batch in
the refiner's anti-dumping compliance calculations under Sec. 80.101(g)
for the refinery, or where applicable, the refiner's aggregation under
Sec. 80.101(h); and
(B) The net volume of gasoline in the refiner's anti-dumping
compliance calculations for the refinery, or, where applicable, the
refiner's aggregation under Sec. 80.101(h), must be positive.
(5) The refiner must use any previously certified gasoline that the
refiner includes as a negative batch under paragraph (i)(4) of this
section in its compliance calculations for the refinery, or where
appropriate, the refiner's aggregation, as a component in gasoline
production during the annual averaging period in which the previously
certified gasoline was included as a negative batch in the refiner's
compliance calculations.
(6) (i) Any refiner may use the procedures specified in this
paragraph (i) to combine previously certified conventional gasoline
with reformulated gasoline or RBOB, to reclassify conventional gasoline
into reformulated gasoline or RBOB, or to change the designations of
reformulated gasoline or RBOB with regard to VOC control.
(ii) The procedures under this section are refinery procedures. Any
person who uses the procedures under this section is a refiner who must
meet all requirements applicable to refiners under this subpart.
(7) Nothing in this paragraph (i) prevents any party from combining
previously certified reformulated gasolines from different sources in a
manner that does not violate the prohibitions in Sec. 80.78(a).

3. Section 80.74 is amended by:
a. Removing the word ``and'' at the end of paragraph (b)(5).
b. Removing the period and adding a semicolon and the word ``and''
at the end of paragraph (b)(6).
c. Adding paragraph (b)(7).
The addition reads as follows:

Sec. 80.74 Recordkeeping requirements.

* * * * *
(b)* * *
(7) In the case of any gasoline classified as previously certified
gasoline under the terms of Sec. 80.65(i):
(i) Results of the tests to determine the properties and volume of
the previously certified gasoline when received at the refinery; and
(ii) Records that reflect the storage and movement of the
previously certified gasoline within the refinery to the point the
previously certified gasoline is used to produce reformulated gasoline
or RBOB.
* * * * *

4. Section 80.75 is amended by:
a. Removing the word ``and'' at the end of paragraph (a)(2)(vi).
b. Removing the period and adding a semicolon and the word ``and''
to the end of paragraph (a)(2)(vii).
c. Adding paragraph (a)(2)(viii).
The addition reads as follows:

Sec. 80.75 Reporting requirements.

* * * * *
(a) * * *
(2) * * *
(viii) In the case of any previously certified gasoline used in a
refinery operation under the terms of Sec. 80.65(i), the following
information relative to the previously certified gasoline when received
at the refinery:
(A) Identification of the previously certified gasoline as such;
(B) The batch number assigned by the receiving refinery;
(C) The date of receipt; and
(D) The volume, properties and designation of the batch.
* * * * *

5. Section 80.78 is amended by:
a. Revising paragraphs (a)(5) and (a)(10).
b. Removing the word ``or'' at the end of paragraph (a)(7)(i).
c. Removing the period at the end of paragraph (a)(7)(ii) and
adding in its place ``;or''.
d. Adding paragraphs (a)(7)(iii) and (a)(11).
The revisions and additions to read as follows:

Sec. 80.78 Controls and prohibitions on reformulated gasoline.

* * * * *
(a) * * *
(5) No person may combine any reformulated gasoline with any
conventional gasoline or blendstock, except that a refiner may do so at
a refinery under the requirements specified in Sec. 80.65(i), or if the
combined product is designated as conventional gasoline.
* * * * *
(7) * * *
(iii) Under the terms of paragraph (a)(5) of this section.
* * * * *
(10) The prohibitions against combining certain categories of
gasoline under paragraphs (a)(5), (a)(7) and (a)(8) of this section do
not apply in the case of a party who is changing the type of gasoline
stored in a gasoline storage tank or the type of gasoline transported
through a gasoline pipe or manifold within a single facility (a
gasoline storage tank, pipe, or manifold change of service), or in the
case of a change of service that involves mixing gasoline with
blendstock, provided that:
(i) The change of service is for a legitimate operational reason
and is not for the purpose of combining the categories of gasoline or
of combining gasoline with blendstock;

[[Page 67107]]

(ii) Prior to adding product of the new category the volume of
product of the old category in the tank, pipe or manifold is made as
low as possible through normal pumping operations;
(iii) The volume of product of the new category that is added to
the tank, pipe or manifold is as large as possible taking into account
the availability of product of the new category; and
(iv) In any case where the new category of product is reformulated
gasoline, subsequent to adding the gasoline of the new category, a
representative sample from the tank, pipe or manifold is collected and
analyzed, and such analysis shows compliance with each standard under
Sec. 80.41 that is relevant to the new gasoline category. The analysis
for each standard must be conducted using the method specified under
Sec. 80.46, or using another method that is approved by the American
Society of Testing and Materials (ASTM), provided that the protocols of
the ASTM method are followed and the alternative method is correlated
to the method specified under Sec. 80.46.
(11) The prohibition against combining reformulated gasoline with
RBOB under paragraph (a)(8) of this section does not apply in the case
of a party who is changing the type of product stored in a tank from
which trucks are loaded, from reformulated gasoline to RBOB, or vice
versa, provided that:
(i) The change of service requirements described in paragraph
(a)(10) of this section cannot be met without taking the storage tank
out of service;
(ii) Prior to adding product of the new category the volume of
product of the old category in the tank is drawn down to the lowest
point which allows trucks to be loaded during the transition;
(iii) The volume of product of the new category that is added to
the tank is as large as possible taking into account the availability
of product of the new category;
(iv) When transitioning from RBOB to reformulated gasoline:
(A) If the reformulated gasoline in the storage tank has an oxygen
content of less than 1.5 wt%, oxygenate must be blended into the
reformulated gasoline at the loading rack such that the reformulated
gasoline has a minimum oxygen content of 1.5 wt%;
(B) Subsequent to any oxygenate blending, the reformulated gasoline
must meet all applicable standards that apply at the terminal; and
(C) Prior to the date the VOC-control standards apply to the
terminal the reformulated gasoline in the storage tank must have an
oxygen content of not less than 1.5 wt%;
(v) When transitioning from reformulated gasoline to RBOB:
(A) The oxygen content of the reformulated gasoline produced using
the RBOB must be not less than the minimum oxygen amount specified in
the RBOB product transfer documents;
(B) Subsequent to any oxygenate blending, the reformulated gasoline
produced using the RBOB must meet all applicable standards that apply
at the terminal; and
(C) The transition from reformulated gasoline to RBOB may not begin
until the date the VOC-control standards no longer apply to the
terminal; and
(vi) The party must demonstrate compliance with the requirements
specified in paragraphs (a)(11)(iv) and (v) of this section through
testing of samples collected from the terminal storage tank and from
trucks loaded at the terminal subsequent to each receipt of new product
until the transition is complete. The analyses must be conducted using
the test method specified under Sec. 80.46, or using another test
method that is approved by the American Society of Testing and
Materials (ASTM), provided that the protocols of the ASTM method are
followed and the alternative method is correlated with the method
specified under Sec. 80.46.
* * * * *

6. Section 80.101 is amended by adding paragraph (g)(9) to read as
follows:

Sec. 80.101 Standards applicable to refiners and importers.

* * * * *
(g) * * *
(9) Exclusion of previously certified gasoline and blendstock. (i)
Any refiner who uses previously certified reformulated or conventional
gasoline or RBOB, or blendstock that previously has been included in
compliance calculations under Sec. 80.102, to produce conventional
gasoline at a refinery, must exclude the previously certified gasoline
and blendstock for purposes of demonstrating compliance with the
standards under paragraph (b) of this section.
(ii) To accomplish the exclusion required in paragraph (g)(9)(i) of
this section, the refiner must determine the volume and properties of
the previously certified gasoline or previously certified blendstock
used at the refinery, and the volume and properties of gasoline
produced at the refinery, and use the compliance calculation procedures
in paragraphs (g)(9)(iii) and (g)(9)(iv) of this section.
(iii) For each batch of previously certified gasoline or blendstock
that is used to produce conventional gasoline the refiner must:
(A) Determine the volume and properties using the procedures in
paragraph (i) of this section;
(B) In the case of previously certified gasoline, determine the
exhaust toxics and NO_X emissions performance using the
summer or winter complex model, as appropriate;
(C) In the case of previously certified blendstock, determine the
exhaust toxics and NO_X equivalent emissions performance
using the procedures in paragraph (g)(3) of this section;
(D) Include the volume and emissions performance of the previously
certified gasoline and/or blendstocks as a negative volume and a
negative emissions performance in the refiner's compliance calculations
for the refinery, or where applicable, the refiner's aggregation under
paragraph (h) of this section, for exhaust toxics and NO_X.
(iv) For each batch of conventional gasoline produced at the
refinery using previously certified gasoline or blendstock, the refiner
must determine the volume and properties, and exhaust toxics and
NO_X emissions performance, and include each batch in the
refinery's compliance calculations for exhaust toxics and
NO_X without regard to the presence of previously certified
gasoline or blendstock in the batch.
(v) The refiner must use any previously certified gasoline that the
refiner includes as a negative batch in its compliance calculations for
the refinery, or where appropriate, the refiner's aggregation, as a
component in gasoline production during the annual averaging period in
which the previously certified gasoline was included as a negative
batch in the refiner's compliance calculations.
(vi) Notwithstanding the provisions of this paragraph (g)(9), the
provisions of paragraph (g)(3) of this section may be used to calculate
the exhaust toxics and NO_X emissions performance of a
blendstock added to conventional gasoline for purposes of demonstrating
compliance with the standards under paragraph (b) of this section.
* * * * *

7. Section 80.104 is amended by adding paragraph (a)(2)(xii) to
read as follows:

Sec. 80.104 Recordkeeping requirements.

* * * * *
(a) * * *
(2) * * *
(xii) In the case of gasoline classified as previously certified
gasoline under

[[Page 67108]]

the terms of Sec. 80.101(g)(9), the results of the tests to determine
the properties and volume of the previously certified gasoline when
received at the refinery and records that reflect the storage and
movement of the previously certified gasoline to the point the
previously certified gasoline is used to produce conventional gasoline.
* * * * *

8. Section 80.105 is amended by adding paragraph (a)(5)(vi) to read
as follows:

Sec. 80.105 Reporting requirements.

(a) * * *
(5) * * *
(vi) In the case of any previously certified gasoline used in a
refinery operation under the terms of Sec. 80.101(g)(9), the following
information relative to the previously certified gasoline when received
at the refinery:
(A) Identification of the previously certified gasoline as such;
(B) The batch number assigned by the receiving refinery;
(C) The date of receipt; and
(D) The volume, properties and designation of the batch.
* * * * *

9. Section 80.131 is added to Subpart F read as follows:

Sec. 80.131 Agreed upon attest engagement procedures for previously
certified gasoline.

The following are the agreed upon procedures which must be carried
out pursuant to the attest engagement requirements of Sec. 80.125 where
a refiner uses previously certified gasoline under the provisions of
Sec. 80.65(i) and Sec. 80.101(g)(9):
(a) Obtain a listing of all previously certified gasoline batches
reported to EPA by the refiner. Agree the total volume of previously
certified gasoline from the listing of previously certified gasoline
received to the volume of previously certified gasoline reported to
EPA.
(b) Select a sample, in accordance with the guidelines in
Sec. 80.127, from the listing obtained in paragraph (a) of this
section, and for each previously certified gasoline batch selected
perform the following:
(1) Trace the previously certified gasoline batch to the tank
activity records. Confirm that the previously certified gasoline was
included in a batch of reformulated or conventional gasoline produced
at the refinery.
(2) Obtain the refiner's laboratory analysis and volume measurement
for the previously certified gasoline when received and agree the
properties and volume listed in the corresponding batch report
submitted to the EPA to the laboratory analysis and volume
measurements.
(3) Obtain the product transfer documents for the previously
certified gasoline when received and agree the designations from the
product transfer documents to designations in the corresponding batch
report submitted to EPA (reformulated gasoline, RBOB or conventional
gasoline, and designations regarding VOC control).

10. Section 80.340 is amended by adding paragraph (c) to read as
follows:

Sec. 80.340 What standards and requirements apply to refiners
producing gasoline by blending blendstocks into previously certified
gasoline (PCG)?

* * * * *
(c) The procedures in Secs. 80.65(i) and 80.101(g)(9) may be
applied for purposes of demonstrating compliance with the sulfur
standards under this subpart.

[FR Doc. 01-31935 Filed 12-27-01; 8:45 am]
BILLING CODE 6560-50-P

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

Regulation of Fuels and Fuel Additives: Modifications to Standards and Requirements for Reformulated and Conventional Gasoline

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