Use of Alternative Analytical Test Methods in the Reformulated
Gasoline Program
Related Material
[Federal Register: September 1, 2000 (Volume 65, Number 171)]
[Proposed Rules]
[Page 53215-53218]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01se00-32]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[FRL-6855-7]
Use of Alternative Analytical Test Methods in the Reformulated
Gasoline Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: This proposed rule would extend the time period during which
certain alternative analytical test methods may be used in the Federal
reformulated gasoline (RFG) program to September 1, 2004. The time
period for the use of these alternative methods originally expired on
January 1, 1997 and was previously extended to September 1, 1998 and
September 1, 2000. This proposed rule would also update each of these
alternative methods to achieve more accurate results and to make them
easier to perform. The purpose of today's proposed extension is to
grant temporary flexibility until we issue a performance-based
analytical test methods rule.
DATES: Comments must be submitted by October 2, 2000.
ADDRESSES: If you wish to submit comments, you should send them to the
docket address listed and to Anne Pastorkovich, Attorney/Advisor,
Transportation & Regional Programs Division, U.S. Environmental
Protection Agency, 1200 Pennsylvania Avenue, NW. (6406J), Washington,
DC 20460. Materials relevant to this proposed (and direct final) rule
have been placed in docket A-2000-26 located at U.S. Environmental
Protection Agency, Air Docket Section, Room M-1500, 401 M Street, SW.,
Washington, DC 20460. The docket is open for public inspection from 8
a.m. until 5:30 p.m., Monday through Friday, except on Federal
holidays. You may be charged a reasonable fee for photocopying
services.
FOR FURTHER INFORMATION CONTACT: If you would like further information
about this proposed rule or to request a hearing, contact Anne
Pastorkovich, Attorney/Advisor, Transportation & Regional Programs
Division, (202) 564-8987.
SUPPLEMENTARY INFORMATION:
I. Regulated Entities
Entities potentially regulated by the action are those that use
analytical test methods to comply with the RFG program. Regulated
categories and entities include:
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Category Examples
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Industry............................... Oil refiners, gasoline
importers, oxygenate blenders
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists all entities that we are now aware could
potentially be regulated by this action. Other types of entities not
listed in this table could also be regulated by this action. To
determine whether your business is regulated by this action, you should
carefully examine the applicability criteria in part 80 of Title 40 of
the Code of Federal Regulations. If you have any questions regarding
the applicability of this action to a particular entity, consult the
person listed in the preceding section of this document.
II. RFG Standards & Test Methods Utilized in 40 CFR 80.46
Section 211(k) of the Clean Air Act directs EPA to establish
standards requiring the greatest reduction in emissions of ozone
forming volatile organic compounds (VOCs) and toxic air emissions
achievable through the reformulation of conventional gasoline,
considering cost, other health and environmental factors and energy
requirements. The Act requires that RFG meet certain content standards
for oxygen, benzene, and heavy metals. RFG must be used in certain
ozone nonattainment areas, called ``covered areas.'' The CAA also
requires EPA to establish anti-dumping standards applicable to
conventional gasoline used in the rest of the country. We issued final
RFG and anti-dumping regulations on December 15, 1993 \1\ and these
regulations became effective in January 1995.
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\1\ ``Regulation of Fuels and Fuel Additives: Standards for
Reformulated and Conventional Gasoline--Final Rule,'' 59 FR 7812
(February 16, 1994). See 40 CFR part 80 subparts D, E, and F.
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Under the RFG and anti-dumping program, refiners, importers, and
oxygenate blenders are required to test RFG and conventional gasoline
for certain parameters, including sulfur levels, aromatic content,
benzene content, and oxygen content. Test methods for determining these
parameters are specified in the regulation. For oxygen and oxygenate
content, 40 CFR 80.46(g)(1) through (8), (9)(ii), and (h) specify the
use of the gas chromatographic procedure using an oxygenate flame
ionization detector, or the ``GC-OFID method.'' For aromatics content,
40 CFR 80.46(f)(1) and (2) specifies the gas chromatography method.
Based upon comments received from the regulated industry during the
RFG and anti-dumping rulemaking process, we concluded that it would be
appropriate to temporarily allow the use of test methods not specified
in the regulation for measuring oxygen and aromatics content. These
comments tended to indicate that the designated test methods for oxygen
and aromatics content were costly and relatively new, so we agreed to
permit industry to use two specified alternative analytical test
methods until January 1, 1997. The alternative analytical test method
for oxygen is ASTM D 4815-93, entitled ``Standard Test Method for
Determination of MTBE, ETBE, TAME, DIPE, tertiary-Amyl Alcohol and C1
to C4 Alcohols in Gasoline by Gas Chromatography,'' and the alternative
analytical test method for aromatics is ASTM D 1319-93, entitled
``Standard Test Method for Hydrocarbon Types in Liquid Petroleum
Products by Flourescent Indicator Adsorption.'' These alternative
analytical test methods are specified in Sec. 80.46(g)(9)(i) and
(f)(3), respectively.
We later extended the deadline for use of the two alternative
analytical test methods to September 1, 1998 \2\ and September 1, 2000.
\3\ In granting these further extensions, we determined that permitting
continued use of the
[[Page 53216]]
specified alternative test methods would grant refiners, importers, and
blenders significant flexibility and would not result in any
environmental detriment. We continue to believe that the flexibility
associated with alternative test methods will not result in any
environmental detriment and that it is appropriate to allow these
methods to be used. In the earlier notices, we discussed our intent to
engage in a notice and comment rulemaking to establish performance-
based analytical test methods. A performance-based approach would apply
to the measurement of all RFG parameters listed at Sec. 80.46 and would
not be limited to oxygen and aromatics content. A performance-based
approach would allow regulated parties additional flexibility in
choosing analytical test methods since, rather than specifying the
exact test method and equipment to be used, a performance-based
approach would define the degree of precision and accuracy methods must
meet and sets forth procedures to qualify methods for use.
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\2\ ``Use of Alternative Test Methods in the Reformulated
Gasoline Program,'' 61 FR 58304 (November 13, 1996).
\3\ ``Use of Alternative Test Methods in the Reformulated
Gasoline Program and Revision of the Specification for the Mixing
Chamber Associated with Animal Toxicity Testing of Fuels and Fuel
Additives,'' 63 FR 63789 (November 17, 1998).
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By today's action, we are proposing to extend the time period
during which the alternative test methods may be used to September 1,
2004 or until such time as a performance-based test methods approach
rulemaking can be completed, whichever is sooner. Today's proposed rule
only applies to the test methods for aromatics and oxygen content. As
part of this proposed rule, we would update the two alternative test
methods that may be used to measure oxygen and aromatics content to
their current versions. The current version of the alternative
analytical test method for aromatics is ASTM D 1319-99, entitled,
``Standard Test Method for Hydrocarbon Types in Liquid Petroleum
Products by Flourescent Indicator Adsorption.'' The current version of
the alternative analytical test method for oxygen and oxygenate content
is ASTM D 4815-99, entitled, ``Standard Test Method for Determination
of MTBE, ETBE, TAME, DIPE, tertiary-Amyl Alcohol and C1 to C4 Alcohol
in Gasoline by Gas Chromatography.'' These two alternative test methods
have been updated from ASTM D 1319-93 and ASTM D 4815-93, respectively.
The updated methods incorporate minor technical revisions to help the
person using the test method achieve more accurate results and do not
require different or additional testing apparatus. Therefore, we
believe it is appropriate to designate the current versions of these
ASTM methods as the allowable alternative test methods. Doing so would
not affect our earlier determination that there would be no
environmental detriment, since these changes are minor This decision is
not expected to be controversial, since the full flexibility associated
with the use of alternative analytical test methods will be maintained.
Today's action only proposes to continue the existing flexibility
in the use of these two alternative test methods. Consideration of test
methods other than the specified alternative test methods for oxygen
and aromatics is beyond the limited scope of this proposed rule. The
performance-based test methods approach will establish criteria for
qualifying other test methods for use. We do invite comment on the
usefulness of other specific alternative test methods, not covered by
this proposal, and on the appropriateness of considering such methods
in future rulemaking actions.
We believe that this proposed rule, and our intent to establish a
performance-based test method approach, may help advance the purposes
of the ``National Technology Transfer and Advancement Act of 1995,''
section 12(d) of Public Law 104-113 and Office of Management and Budget
(OMB) Circular A-119. Both of these documents are designed to encourage
the adoption of standards developed by ``voluntary consensus bodies''
and to reduce reliance on government-unique standards where such
consensus standards would suffice. This proposed rule would provide an
extension of the deadline for using certain alternative test methods
until September 1, 2004. We reasonably expect to complete rulemaking on
the performance-based test methods approach prior to September 1, 2004.
The performance-based test methods approach will address the use of
these and other test methods.
III. Administrative Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735 (October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (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 entitlement, 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.
The Agency has determined that this proposed regulation would
result in none of the economic effects set forth in Section 1 of the
Order because it generally relaxes the requirements of the RFG program
and provides regulated parties with more flexibility with respect to
compliance with the RFG requirements. Pursuant to the terms of
Executive Order 12866, OMB has waived review of this action.
B. 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
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.
If EPA complies by consulting, Executive Order 13132 requires EPA
to provide to the Office of Management and Budget (OMB), in a
separately identified section of the preamble to the rule, a federalism
summary impact statement (FSIS). The FSIS must include a description of
the extent of EPA's prior consultation with State and local
[[Page 53217]]
officials, a summary of the nature of their concerns and the agency's
position supporting the need to issue the regulation, and a statement
of the extent to which the concerns of State and local officials have
been met. Also, when EPA transmits a draft final rule with federalism
implications to OMB for review pursuant to Executive Order 12866, EPA
must include a certification from the agency's Federalism Official
stating that EPA has met the requirements of Executive Order 13132 in a
meaningful and timely manner.
This proposed rule would 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 would provide regulatory relief for refiners who
choose to use alternative test methods and does not impose any
substantial direct effects on the states. Thus, the requirements of
section 6 of the Executive Order do not apply to this rule.
C. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
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 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 proposed rule would not significantly or uniquely affect
the communities of Indian tribal governments. Today's proposed rule
would not create a mandate for any tribal governments. This proposed
rule would apply to gasoline refiners, importers, and blenders. Today's
action would make some changes that would generally provide flexibility
within the Federal RFG requirements, and would not impose any
enforceable duties on communities of Indian tribal governments.
Accordingly, the requirements of section 3(b) of Executive Order 13084
do not apply to this proposed rule.
D. Regulatory Flexibility Act (RFA), as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The 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 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, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. Sections 603
and 604. Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule.
Today's proposed rule would provide regulatory relief by extending the
deadline for use of alternative test methods for RFG. We have therefore
concluded that today's proposed rule would relieve regulatory burden
for all small entities. We continue to be interested in the potential
impacts of the proposed rule on small entities and welcome comments on
issues related to such impacts.
E. Paperwork Reduction Act
This proposed rule would 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. 1591.07).
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.
F. 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
[[Page 53218]]
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 proposed rule would
impose no enforceable duty on any State, local or tribal governments or
the private sector. This proposed rule would apply to gasoline
refiners, blenders and importers. Today's proposed action suggests
changes that would provide regulated parties with more flexibility with
respect to compliance with the RFG requirements.
G. 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, 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 proposed rule is not
subject to Executive Order 13045, entitled ``Protection of Children
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April
23, 1997), because it does not involve decisions on environmental
health risks or safety risks that may disproportionately affect
children. This proposed rule would merely extend the deadline for use
of alternative test methods under the RFG program and would not have an
adverse effect on air quality.
H. National Technology Transfer and Advancement Act of 1995 (NTTAA)
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This proposed rule would provide an extension of deadline for use
of certain analytical test methods for the RFG program until such time
as a notice-and-comment rulemaking to establish performance-based
analytical test methods is completed. Today's proposed action does not
establish new technical standards or analytical test methods, although
it does update existing alternative ASTM test methods to their current
versions. To the extent that this proposed action would allow the use
of standards developed by voluntary consensus bodies (such as ASTM)
this action would further the objectives of the NTTAA. The Agency plans
to address the objectives of the NTTAA more broadly in the upcoming
rulemaking to establish performance-based analytical test methods.
I. Statutory Authority
Sections 114, 211, and 301(a) the Clean Air Act as amended (42
U.S.C. 7414, 7545, and 7601(a)).
List of Subjects in 40 CFR Part 80
Environmental protection, Air pollution control, Incorporation by
reference, Reformulated gasoline.
Dated: August 15, 2000.
Carol M. Browner,
Administrator.
[FR Doc. 00-22381 Filed 8-31-00; 8:45 am]
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