Regulation of Fuels and Fuel Additives: Modifications to
Standards and Requirements for Reformulated and Conventional Gasoline
Including Butane Blenders and Attest Engagements
[Federal Register: December 15, 2005 (Volume 70, Number 240)]
[Rules and Regulations]
[Page 74551-74579]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15de05-13]
[[Page 74552]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[OAR-2003-0019 FRL-8006-5]
RIN 2060-AK77
Regulation of Fuels and Fuel Additives: Modifications to
Standards and Requirements for Reformulated and Conventional Gasoline
Including Butane Blenders and Attest Engagements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action on certain modifications to
the reformulated and conventional gasoline regulations. Based on
experience gained since the promulgation of these regulations, EPA
proposed these modifications along with various others in a Notice of
Proposed Rulemaking (NPRM) published on July 11, 1997. In final rules
published on December 31, 1997, and December 28, 2001, EPA took final
action on several of the modifications proposed in the July 11, 1997
NPRM. Today's direct final action would finalize many of the remaining
proposed modifications.
The modifications in today's direct final rule correct technical
errors, clarify certain provisions, and codify guidance previously
issued by the Agency. This rule also makes several minor technical
corrections to the RFG rule which were not included in the July 11,
1997 proposal, and makes two minor technical corrections to the Tier 2
gasoline sulfur rule. The emissions benefits achieved from the RFG and
conventional gasoline programs will not be reduced as a result of this
direct final rule.
DATES: This rule will be effective on March 15, 2006 without further
notice except to the extent that we receive adverse comment by February
13, 2006. If EPA receives adverse comment, we will publish a timely
withdrawal in the Federal Register informing the public that the
portion of the final rule which received adverse comment will not take
effect.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. OAR-2003-0019. All documents in the docket are listed in the
EDOCKET index at http://www.epa.gov/edocket. Although listed in the
index, some information is not publicly available, i.e., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically in
EDOCKET or in hard copy at the Air and Radiation Docket, EPA/DC, EPA
West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Air
and Radiation Docket is (202) 566-1742.
Submit your comments, identified by Docket ID No. OAR-2003-0019 by
one of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
2. Agency Web site: http://www.epa.gov/edocket. EDOCKET, EPA's
electronic public docket and comment system, is EPA's preferred method
for receiving comments. Follow the on-line instructions for submitting
comments.
3. E-mail: http://www.epa.gov/docket, attention ID No. OAR-2003-
0019
4. Mail: Air and Radiation Docket, Environmental Protection Agency,
Mailcode: 6406J, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Please include a total of 2 copies. In addition, please mail a copy of
your comments on the information collection provisions to the Office of
Information and Regulatory Affairs, Office of Management and Budget
(OMB), Attn: Desk Officer for EPA, 725 17th St., NW., Washington, DC
20503.
5. Hand Delivery: EPA Docket Center, Environmental Protection
Agency, 1301 Constitution Avenue, NW., Room B102, Mail Code: 6102T,
Washington, DC 20460. Such deliveries are only accepted during the
Docket's normal hours of operation, and special arrangements should be
made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. OAR-2003-0019.
EPA's policy is that all comments received will be included in the
public docket without change and may be made available online at http://
www.epa.gov/edocket, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through EDOCKET, regulations.gov, or e-
mail. The EPA EDOCKET and the federal regulations.gov Web sites are
``anonymous access'' systems, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through EDOCKET or regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit EDOCKET on-line or see the Federal Register of May 31,
2002 (67 FR 38102).
FOR FURTHER INFORMATION CONTACT: Marilyn Bennett, Transportation and
Regional Programs Division, Office of Transportation and Air Quality,
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW.,
(6406J), Washington, DC 20460; telephone: (202) 343-9624; fax: (202)
343-2803, e-mail address: mbennett@epa.gov.
SUPPLEMENTARY INFORMATION: EPA is publishing this rule as a Direct
Final Rule because we view this action to be noncontroversial and
anticipate no adverse comment. However, in the ``Proposed Rules''
section of today's Federal Register publication, we are publishing a
separate document that will serve as the proposal to adopt the
provisions in this Direct Final Rule if adverse comments are filed.
This rule will be effective on March 15, 2006 without further notice
except to the extent that we receive adverse comment by February 13,
2006. If EPA receives adverse comment, we will publish a timely
withdrawal in the Federal Register informing the public that the
portion of the rule on which adverse comment was received will not take
effect. We will address all public comments in a subsequent final rule
based on the proposed rule. We will not institute a second comment
period on this action. Any parties interested in commenting must do so
at this time. Any distinct amendment, paragraph, or section of today's
rule for which we do not receive adverse comment will become effective
on the date set out above, notwithstanding any adverse comment on any
other distinct
[[Page 74553]]
amendment, paragraph, or section of today's rule.
I. General Information
A. Does This Action Apply to Me?
Entities potentially affected by this action include those involved
with the production and importation of gasoline motor fuel. Regulated
categories and entities affected by this action include:
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Category NAICS codes a SIC codes b Examples of regulated entities
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Industry.... 324110 2911 Petroleum Refiners, Importers.
Industry.... 422710, 422720 5171, 5172 Gasoline Marketers and Distributors.
Industry.... 484220, 484230 4212, 4213 Gasoline Carriers.
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a North American Industry Classification System (NAICS).
b Standard Industrial Classification (SIC) system code.
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 the types of entities that EPA is now aware
could be potentially regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your entity is regulated by this action, you should carefully examine
the applicability criteria of Part 80, Subparts D, E and F, of title 40
of the Code of Federal Regulations. If you have questions regarding
applicability of this action to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
B. Outline of This Rule
I. General Information
II. Corrections of Typographical Errors and Minor Revisions
III. RFG and Anti-dumping Standards/Models
A. Effective Dates for Standard Changes Due to Survey Failures
B. Proper E300 Value for the Edge Target Fuel for Use in Complex
Model Extrapolation
IV. RFG Compliance Requirements
A. Clarifications of Requirements to Test RFG and RBOB
B. Transfer of Credits
C. Compliance Survey Requirements
D. Product Transfer Documentation (PTD)
E. Exemption for Gasoline Used for Aviation and Racing Purposes
F. References to Renewable Oxygenate Requirements
G. Butane Blending
H. Gasoline Treated as Blendstock (GTAB)
V. Anti-Dumping Requirements
A. Imports of Gasoline by Truck
B. Date for Submission of Attest Engagement Reports
VI. Attest Engagements
A. Modification to Agreed-Upon Procedures in Sec. Sec. 80.128
and 80.129, and Promulgation of Agreed-Upon Procedures in Sec. Sec.
80.133 and 80.134
B. Attest Procedures for GTAB, Previously Certified Gasoline
(PCG), Truck Importers and Butane Blenders
VII. Public Participation
VIII. Statutory and Executive Order Reviews
IX. Statutory Provisions and Legal Authority
C. Modification of Provisions
Some of the provisions in today's rule may be modified in a future
rulemaking to reflect a recent Congressional mandate requiring the
removal of the RFG oxygen requirement.\1\
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\1\ Energy Policy Act of 2005, Public Law 109-58 (HR6), Sec.
1504, 119 STAT 594, 1076-1077 (2005).
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II. Corrections of Typographical Errors and Minor Revisions
In the July 7, 1997 Notice of Proposed Rulemaking (NPRM), EPA
proposed the following corrections of typographical errors and minor
revisions to the RFG and conventional gasoline regulations. EPA
received either favorable or no comments on these changes. We are aware
of no new information or circumstances arising since the proposal that
would be likely to substantially change the impact or significance of
these changes. Today's rule would finalize these changes as proposed.
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Sec. 80.2(ww).................................................. Adds a definition of ``Gasoline Treated as
Blendstock'' or ``GTAB,'' which is imported
gasoline that is excluded from the import
facility's compliance calculations, but is
treated as blendstock in a related refinery
that includes the GTAB in its refinery
compliance calculations.
Sec. 80.2(ee).................................................. Revises the definition of reformulated
gasoline to delete the reference to a
gasoline marker under Sec. 80.82, since
the current regulations do not include a
requirement for a conventional gasoline
marker.
Sec. 80.49(a).................................................. Corrects an incorrect reference to Sec.
80.43(c). The correct reference is Sec.
80.49(a)(5)(i).
Sec. 80.49(a)(1)............................................... Corrects a typographical error in the formula
at the bottom of the new parameter under
Fuel 2. Change is from ``C+B/2'' to ``(C+B)/
2.''
Sec. 80.49(a)(3)............................................... Corrects an incorrect reference to Sec.
80.43(c). The correct reference is to Sec.
80.49(a)(5)(i).
Sec. 80.49(b).................................................. Corrects an incorrect reference to Sec.
80.43(c). The correct reference is Sec.
80.49(a)(5)(i).
Sec. 80.50(a)(2)............................................... Corrects an incorrect reference to Sec.
80.49(a). The correct reference is Sec.
80.49(b).
Sec. 80.65(e)(2)(ii)(B)........................................ Revises to correct an inadvertent omission of
the word ``importer'' in the first sentence.
Sec. 80.65(g).................................................. Revises to delete heading: ``Marking of
conventional gasoline,'' since the
regulations do not include provisions for
requiring a conventional gasoline marker.
Sec. 80.68(b)(2)(ii)........................................... Revises the word ``area'' to read ``area(s)''
to clarify the application of the equation
to a situation in which more than one area
fails a survey or survey series in a single
year.
Sec. 80.69(a)(4)............................................... Revises to delete this provision. This
provision requires refiners and importers to
determine the properties of reformulated
gasoline blendstock for oxygenate blending
(RBOB) which are sufficient to allow parties
downstream from the refinery or importer to
establish, through sampling and testing, if
the RBOB has been altered or contaminated
such that it will not meet the applicable
RFG standards subsequent to the addition of
the specified type and amount of oxygenate.
This provision was intended to facilitate
downstream quality assurance programs,
however, since most RBOB is transported in a
fungible manner, we believe there is little
value to this requirement.
Sec. 80.69(e)(2)(i)(A)......................................... Corrects a typographical error. The word
``to'' was inadvertently omitted in the
final rule.
Sec. 80.69(e)(2)(v)............................................ Corrects an incorrect reference to Sec.
80.70(b)(2)(i). The correct reference is
Sec. 80.65(e)(2)(i).
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Sec. 80.75(a).................................................. Revises to require refiners, importers and
oxygenate blenders to include notification
to EPA of per-gallon versus average election
with the first quarterly reports submitted
each year, in accordance with the provisions
of Sec. 80.65(c)(3) which require
refiners, importers and oxygenate blenders
to designate whether, for a given parameter,
all batches of gasoline are being subject to
the per-gallon or average standards.
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The following technical corrections are also being made to the
fuels regulations in 40 CFR Part 80. Although these corrections were
not previously proposed, they are not substantive in nature and do not
change the requirements of the fuels programs.
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Sec. 80.2(c)................................................... Revises footnote 1 in Sec. 80.2(c) to
include the Northern Mariana Islands in the
definition of ``State'' under 40 CFR Part
80, in accordance with the definition of
``State'' in Sec. 301(d) of the Clean Air
Act. The exclusion of the Northern Mariana
Islands from the list of U.S. territories in
footnote 1 is an oversight in the current
regulations.
Sec. 80.45(d)(1)(iv)(B)........................................ Reinstates regulatory text inadvertently
deleted from the Code of Federal Regulations
(CFR) when certain changes were made to this
section pursuant to a rulemaking on December
31, 1997 (62 FR 6819).
Sec. 80.65(d)(2)(iii).......................................... Removes and reserves this section. This
section relates to the oxygenated fuels
program requirements (OPRG), which were
eliminated by rulemaking on November 6, 1997
(62 FR 50132).
Sec. 80.74(b)(2)............................................... Deletes the requirement to retain results of
a test for the presence of a gasoline
marker. The current regulations do not
include a requirement for a gasoline marker.
Sec. 80.74(f).................................................. Revises to remove and reserve this paragraph
since the regulations do not include
provisions for requiring a conventional
gasoline marker.
Sec. 80.75(f)(2)(ii) and (f)(2)(iii)........................... Revises to delete references to OPRG
requirements which have been eliminated.
Sec. 80.76(b).................................................. Revises to delete reference to ``applicable
blendstocks,'' since all requirements
relating to applicable blendstocks have been
eliminated.
Sec. 80.78(a)(1)(iii).......................................... Deletes this provision since it relates to
OPRG requirements which have been
eliminated.
Sec. 80.78(a)(11).............................................. Revises to correct an incorrect reference to
Sec. 80.78(a)(8). The correct reference is
Sec. 80.78(a)(7).
Sec. 80.78(a)(3)............................................... Deletes the prohibition against manufacturing
and selling or distributing, or offering for
sale or distribution, dispensing, supplying,
or offering for supply, storing,
transporting or causing the transportation
of gasoline represented as conventional
gasoline which does not contain a gasoline
marker. The current regulations do not
include a requirement for a gasoline marker.
Sec. 80.81(c)(4)............................................... Revises to delete this provision as it
pertains to a conventional gasoline marker
requirement and the regulations do not
include provisions for a gasoline marker.
Sec. 80.101(g)(9).............................................. Revises to delete references to the
blendstock tracking and accounting
requirements of Sec. 80.102, which have
been eliminated.
Sec. 80.410(f)(4)(ii).......................................... Corrects an incorrect reference to Sec.
80.65(e)(2)(iii). The correct reference is
Sec. 80.65(f)(2)(iii).
Sec. 80.410(r)(1)(iv).......................................... Corrects an incorrect reference to Sec.
80.410(f)(3)(iii). The correct reference is
to Sec. 80.410(f)(4)(iii).
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III. RFG and Anti-dumping Standards/Models
A. Effective Dates for Standard Changes Due to Survey Failures
Under Sec. 80.41(p), when a minimum or maximum per-gallon RFG
standard is changed to be more stringent as a result of a survey
failure, the effective date for the new standard is ninety days after
EPA announces the new standard. In the NPRM, we determined that
additional time is needed because of the lag time between the date
refiners and importers begin producing gasoline to a new standard and
the date this gasoline displaces the earlier gasoline through the
distribution system. As a result, we proposed the following effective
dates on which the new standard would be required after the date EPA
announces the new standard: 60 days for gasoline produced at a refinery
or imported by an importer; 120 days for facilities downstream of the
refinery or importer other than retail outlets and wholesale purchaser-
consumers; and 150 days for retail outlets and wholesale purchaser-
consumers. Under this approach, refiners and importers would have
approximately two months to begin meeting the new standard, downstream
parties such as terminal operators would have about two months to
transition to the new standard after shipments of gasoline meeting the
new standard begin, and retailers and wholesale users would have about
one month to transition after terminals must begin shipping gasoline
meeting the new standard. We believed the times proposed for these
stages were consistent with current industry practice for transitioning
to new standards, such as the transition to meet the summertime high
ozone season VOC standards each spring. However, as discussed below, in
response to the comments on the proposal, we now believe that a
somewhat longer transition time is needed.
One commenter supported the proposal. However, two commenters said
that the proposal does not allow sufficient time for parties to make
the transition to a new standard following a survey failure. One of the
commenters noted that prior EPA guidance allowed 90 days at the
refinery gate and an additional 90 days at all downstream locations.
See ``Surveys,'' RFG/Anti-dumping Questions and Answers, November 12,
1996. Another commenter said that refiners need at least 90 days to
allow time to plan, renegotiate supply contracts, and make refining/
distribution adjustments necessary to comply with the new standard.
We agree with the commenters that additional time may be necessary
for refiners to a make the transition to the new standard in the event
of a standard change due to a survey failure. Unlike the transition to
the VOC standard which occurs each year, a new standard due to a survey
failure may not be anticipated in sufficient time for refiners make
necessary adjustments. As a result, we have determined that the
effective dates for standard changes due to a survey failure, expressed
in the number of days after the date EPA announces the new standard,
will be as follows: 90 days for gasoline produced at a refinery or
imported by an importer; 150 days for facilities downstream of the
refinery or importer other than retail outlets and wholesale purchaser-
consumers; and 180 days for retail outlets and wholesale purchaser-
[[Page 74555]]
consumers. This structure is consistent with the prior guidance issued
by EPA which allowed 90 days for refiners and importers and 180 days
for downstream parties, but also provides for a 30-day transition
period from the terminals to the retail outlets and wholesale purchase-
consumers. We believe that a 30-day period is necessary for retail
outlets to turnover over their gasoline supply. Requiring a 30-day
turnover period between terminals and retailers/wholesale purchaser
consumers is consistent with the current provisions for transitioning
to VOC controlled RFG each spring, which require terminals to meet the
VOC control standard beginning on May 1 each year, and retailers and
wholesale purchaser-consumers to meet the VOC control standard
beginning on June 1.
B. Proper E300 Value for the Edge Target Fuel for Use in Complex Model
Extrapolation
The Complex Model as described in Sec. 80.45 includes provisions
for extrapolations beyond the limits of the data upon which the model
was based. The limits of the data define the ``allowable range'' which
represents the range of fuel parameters within which the Complex Model
equations are directly applicable, and outside of which extrapolation
must be used up to the limits of the model.\2\ These extrapolations
take the form of intricate equations and a series of conditions for use
of those equations. Among other things, the conditions associated with
extrapolation direct Complex Model users to determine properties for an
``edge target fuel.'' The edge target fuel is equivalent in all
respects to the target fuel, except that no fuel parameters are allowed
to exceed the limits of the allowable range. In effect, the edge target
fuel represents the point in the multi-dimensional fuel parameter space
where extrapolation begins.
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\2\ The allowable range of the model is, in fact, a combination
of the limits of the data and additional limitations that may be
imposed by the existence of extreme, or curve turnover points.
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The Complex Model equation for exhaust volatile organic compounds
(VOCs) contained in Sec. 80.45(c)(1) includes a single interactive
term. This term, the product of E300 and aromatics, necessitates that
extrapolations involving E300 include a simultaneous evaluation of the
aromatics level of the target fuel. Thus, in paragraph
(c)(1)(iv)(C)(6), Complex Model users are directed to determine whether
the mathematical phrase [80.32 + (-.390xARO)]
is greater or less than
94, and to set the E300 edge target fuel value accordingly. In so
doing, users are determining whether the aromatics-dependent E300
extrema (i.e., curve turnover) point falls beyond the limits of the
available data in the Complex Model database.
However, the language in paragraph (c)(1)(iv)(C)(6) is misleading.
As currently written, the user is directed to set the E300 value of the
edge target fuel at 94 vol% whenever the value of the phrase [80.32 +
(0.390xARO)]
is greater than 94. The Agency's intention, however, was
that this step be taken only if the E300 term is being extrapolated. In
other words, if the target fuel value for E300 falls below the higher
limit for E300 in the allowable range as defined in Table 6, Sec.
80.45(c)(1)(iv), then E300 is not being extrapolated, and the E300
value of the edge target fuel should be equal to the E300 value of the
target fuel.
To correct this problem, we proposed to modify the provisions in
Sec. 80.45(c)(1)(iv)(C)(6) and Sec. 80.45(c)(1)(iv)(D)(6) to clarify
that Complex Model users should only set the E300 value of the edge
target fuel equal to 94 if the target fuel value for E300 exceeds the
higher limit specified in Sec. 80.45(c)(1)(iv), Table 6.
We previously received no comments on this change. Today's rule
would finalize this change as proposed.
IV. RFG Compliance Requirements
A. Clarification of Requirements to Test RFG and RBOB
Section 80.65(e)(1) requires refiners and importers to determine
the properties of each batch of RFG that is produced or imported. This
determination is required for each parameter relevant to the RFG
standards. We previously proposed to modify Sec. 80.65(e)(1) to add
language to clarify that this section applies to RBOB as well as to
RFG. We also proposed to add a cross reference to Sec. 80.69(a), which
requires the certified properties of RBOB to be the properties of the
RBOB subsequent to downstream blending with oxygenate, based on test
results of a sample of the RBOB hand blended in the laboratory with the
appropriate oxygenate type and amount. We believe the certification of
RBOB already is implicit in Sec. 80.65(e), and that refiners and
importers have been certifying and reporting the properties of RBOB
based on the analysis results of a hand blend. In addition, we proposed
to clarify that testing for RVP is necessary only for RFG and RBOB that
is designated as VOC controlled, because RVP test results are relevant
only to VOC controlled gasoline (for non-VOC controlled gasoline, the
Complex Model uses an RVP value of 8.7 psi regardless of the actual RVP
value of the gasoline.) Today's rule also clarifies that the volume as
well as the properties of each batch of gasoline must be determined. We
received no comments on these clarifications and today's rule would
finalize them as proposed.
B. Transfer of Credits
Section 80.67(h)(1)(iv) allows oxygen and benzene credits to be
transferred directly from the party who generates them to the party who
uses the credits for compliance purposes. We have received several
inquiries with regard to whether transfers within the same company are
covered under this section. We believe that a party may properly
transfer legitimate credits within the company or outside of the
company. As a result, we proposed to clarify that credit transfers may
be either inter-company or intra-company. We received no comments on
this clarification and today's rule would finalize it as proposed.
C. Compliance Survey Requirements
1. Method of Computation for Averages in Survey Series
The RFG rule affords refiners the flexibility to comply with the
RFG standards on a refinery annual average basis, as opposed to
requiring each refinery to comply based on the quality of its gasoline
sold in a particular covered area. The RFG surveys are designed to
ensure that this flexibility does not result in a covered area
receiving gasoline that on average differs in quality from the average
gasoline quality that would occur if averaging were required separately
for each covered area. The surveys are conducted by an industry
association according to a statistical sampling plan approved by EPA
and involve sampling gasoline from retail outlets. If the gasoline in
an area fails to meet standards set forth in the regulations for a
particular parameter, the standards for that parameter are made more
stringent and the number of surveys that must be conducted in the
following year is increased.
Some of the gasoline characteristics evaluated by the survey are
chiefly of interest because of their role in causing or contributing to
ambient ozone levels. Surveys for these parameters (e.g., VOC surveys)
are passed or failed based upon the average of results from a week-long
survey. Other parameters (like benzene and toxics) are of concern
because of their cumulative effects over a longer
[[Page 74556]]
period of time. Surveys for these latter characteristics are passed or
failed based upon the average of a year-long series of one-week
surveys. The revisions to Sec. 80.68 in today's rule relate to how the
average of such a series of one-week surveys should be computed.
Under the current regulations, determining the average for each
survey series \3\ involves computation of a simple average \4\ of
parameter values from each gasoline sample across all of the samples
gathered during the year (without any consideration of which week-long
survey the sample was a part). If all of the individual week-long
surveys had equal sample sizes, this approach to computation would
yield as good a representation of the fuel supply as the timing and
distribution of the week-long surveys throughout the year permitted.\5\
Practical considerations involved in the design and conduct of an
efficient overall survey operation, though, dictate some substantial
variations in sample size among the week-long surveys. One such effect,
and probably the most important one, stems from the fact that high-
ozone season surveys for ozone precursors must yield a confidence
interval on the mean small enough to meet the precision requirements of
the regulations (Sec. 80.68(c)(13)(iii)) for each individual survey.
Since practical considerations dictate that surveys for the various
parameters be conducted concurrently (i.e., each gasoline sample is
analyzed for all parameters covered by the survey program), this
situation results in larger-than-necessary sample sizes in the summer
for non-ozone precursor parameters. Outside the summer ozone season
there is no need to maintain precision standards for each individual
survey, but only for the annual series of such surveys. In the interest
of efficiency, the survey manager may be expected to cut back on sample
sizes during these times at the beginning and end of the calendar year.
As a result, the simple average substantially over-represents
summertime gasoline.
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\3\ Section 80.68(c)(9)(i)(B) for toxics; (c)(10)(ii) for
NOX; (c)(11) for benzene; and (c)(12) for oxygen.
\4\ In the case of toxics, the computation introduces weights
for the season (high-ozone season or outside of high-ozone season)
since the statistical model used to compute the emissions is
different in the two seasons. The weights substantially correct the
overemphasis on summer that affects other non-ozone-related
parameters, as discussed in the remainder of the text.
\5\ While the design for each of the individual week-long
surveys is probabilistic, a variety of considerations prevent EPA
from distributing the surveys in a perfectly random manner with
respect to time. The overall sampling approach for survey series
thus departs, to some extent, from a purely probabilistic design.
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An additional reason for altering the prescribed approach to
computing averages of series has to do with the weights attached to
each sample to handle either lack of pre-survey information about an
individual retail outlet's throughput or the situation where an outlet
with unusually high throughput is located in a covered area with
relatively few outlets and is consequently selected into the sample
with certainty. For both situations the sample is not self-weighting
and weights must be computed to properly represent the outlet's
gallonage in the sample. The current approach, the simple average,
requires that such weights be computed two different ways, once for the
outlet's inclusion in the week-long survey for ozone-related parameters
and then again for the annual average computation for non-ozone-related
parameters. The latter set of weights cannot be computed until the
year's data collection is complete, leaving some uncertainty up to the
end of the year as to the status of survey results in areas where
throughput data are not available for most outlets. This particular
problem is a characteristic of the sample design approach currently
being used by the industry survey organization, but that approach or
some variant of it is likely to be used in any thorough attempt to meet
the survey requirements in the regulations.
Both the distortion and the difficulty in computing weights, as
discussed above, can be eliminated by changing the method by which the
average of each survey series is computed for a given parameter in a
given RFG covered area. Instead of averaging all of the measurements on
individual gasoline samples in the survey series, we proposed the
following: (1) That the measurements for each week-long survey in an
area be averaged, regardless of the sample size, to create a set of
means of week-long surveys, and then (2) that all of the resulting
individual survey averages for the area be averaged, themselves, across
all of the surveys in the series. This approach removes a significant
source of distortion, simplifies calculations, and improves the
representativeness of the number that we use to make the important
decision on whether the gasoline in an area has passed or failed a
survey series. We received no comments on these proposed modifications
to Sec. 80.68. Today's rule would finalize these modifications as
proposed.
2. Clarification of Applicability of Survey Precision Requirements
The intent of the survey precision requirements in Sec.
80.68(c)(13)(iii) is to ensure that errors (in either direction) in
survey or survey series pass/fail determinations would be unlikely.
Without these requirements survey managers would be able to trade off
risk of inappropriate survey failure against survey costs, and the
environment would not be protected against the increased risk of errors
in the other direction resulting from insufficient sampling.
Therefore, the precision requirements should apply to the body of
data that serves as the basis of each pass/fail determination. As
currently written, the regulations attach the precision requirements
exclusively to individual surveys without making it clear that for
certain survey parameters the pass/fail determination is made against a
year-long series of surveys rather than against a single survey. As a
result, we proposed to clarify the regulations to attach the precision
requirements to the appropriate body of data for each determination--to
the individual survey where the parameters being evaluated are ozone-
related and to the survey series for other parameters. We received no
comments on the proposed changes to Sec. 80.68(c)(13)(iii). Today's
rule would finalize these changes as proposed.
D. Product Transfer Documentation (PTD)
1. Identification of the Gasoline
In the NPRM, we proposed to add a reference to RBOB in Sec.
80.77(c) (requiring the volume of gasoline to be included on PTDs) to
clarify that this PTD requirement applies to RBOB as well as to
gasoline. We also proposed to delete the reference to conventional
gasoline in Sec. 80.77(f) (requiring title or custody PTDs to include
identification of the gasoline as conventional or reformulated), since
the requirements of Sec. 80.77 do not apply to conventional gasoline
(there are separate PTD requirements that apply to conventional
gasoline in Sec. 80.106), and we proposed to add a reference to RBOB
in Sec. 80.77(f) since the requirements of Sec. 80.77 do apply to
RBOB. In addition, we proposed to delete the reference to RBOB in Sec.
80.77(g)(3), since this section requires parties to identify whether
the product contains ethanol, and RBOB, by definition, does not contain
oxygenate. We received no comments these changes and today's rule would
finalize these changes as proposed. In addition, today's rule revises
Sec. 80.77(i) (listing the PTD requirements for RBOB) to remove the
requirement in paragraph (i)(1) to identify RBOB as such on PTDs, since
this requirement is now included in Sec. 80.77(f), as indicated above.
[[Page 74557]]
2. Elimination of PTD Requirements to Include Registration Numbers
Sections 80.77(j) and 80.106(a)(1)(vi) require, in the case of
transferors and transferees who are refiners, importers or oxygenate
blenders, that the EPA assigned registration number of those persons be
included on the PTDs for RFG and conventional gasoline, respectively.
We believe that this requirement may be overly burdensome, particularly
downstream of the refiner, importer or oxygenate blender, since such
information may not be readily available. We also believe that other
information which could identify the refiner, importer or oxygenate
blender is likely to be available. As a result, we believe that this
requirement has limited value as a means of identifying and tracking
the gasoline, and that we will be able to adequately enforce the
regulations without this requirement. As a result, we proposed to
eliminate the requirement to include registration numbers on PTDs. We
previously issued guidance indicating that EPA will not require
compliance with this requirement. See Reformulated Gasoline and Anti-
dumping Questions and Answers (February 21, 1995).
We received favorable comments on the proposal to delete the
requirement to include EPA registration numbers on PTDs. Today's rule
would finalize this change. Based on the same rationale for eliminating
this requirement discussed above, we are also eliminating this same
requirement under Sec. 80.81(g)(1)(vii) regarding California gasoline
produced at a refinery located outside the State of California.
E. Exemption for Gasoline Used for Aviation and Racing Purposes
Section 211(k)(5) of the CAA prohibits the sale or dispensing by
any person of conventional gasoline to ultimate consumers in any
covered area. This statutory prohibition on the sale or dispensing of
conventional gasoline in RFG covered areas is not restricted to
gasoline used to fuel motor vehicles, but rather applies to all
gasoline sold or dispensed within an RFG covered area to any consumer,
regardless of the use. The prohibition, therefore, includes gasoline
sold or dispensed for uses such as in motor vehicles, boats, construction
equipment, recreational vehicles, and lawn and garden equipment.
We proposed that persons may be exempted from the prohibitions at
Sec. 80.78(a)(1) against distributing, transporting, storing, selling
or dispensing aviation and racing gasoline if they clearly identify the
gasoline as gasoline not for use in RFG areas. We proposed that the
racing vehicle exemption would apply only in the case of vehicles that
are used exclusively as racing vehicles in races that are sanctioned by
generally recognized race sanctioning bodies.\6\ In addition, the
exception would apply only in the case of vehicles that do not meet the
definition of ``motor vehicle'' under Clean Air Act Sec. 216(2) and
Sec. 85.1703 \7\ and that are not registered or licensed for use on or
operated on public roads or highways. The racing vehicle exemption
applies to use of racing vehicles during practice and qualifying for,
and competition in sanctioned races, and applies to motorcycles and
boats used exclusively in sanctioned races.
---------------------------------------------------------------------------
\6\ Examples of generally recognized race sanctioning bodies
include the National Association for Stock Car Auto Racing, the
Sports Car Club of America, the National Hot Rod Association, the
American Motorcyclist Association, and the American Power Boat Association.
\7\ Under Sec. 85.1703 a vehicle is a ``motor vehicle'' if it
is self propelled and capable of transporting a person or materials,
unless the vehicle meets one or more of the following criteria: (1)
A maximum speed of not more than 25 miles per hour; (2) the absence
of features customary for street use, such as a reverse gear, a
differential, and required safety features; or (3) the presence of
features that render the vehicle highly unsuitable for street use,
such as tracks.
---------------------------------------------------------------------------
The exemption for aviation gasoline used to fuel aircraft was
proposed for safety considerations. Aviation gasoline must satisfy
performance criteria that are relevant to the safe operation of
aircraft, and this safety consideration outweighs the very limited
potential for adverse environmental effects from conventional gasoline
used in this manner. The exemption for racing gasoline is based on the
special performance requirements for true race vehicles and the limited
volumes of gasoline involved. We believe that the environmental impact
from these exemptions is minimal, and the burden from refusing these
exemptions is potentially significant. As a result, we believe the
exemptions are warranted under these limited circumstances. See Alabama
Power Company v. Costle, 636 F.2d 323, 357 (D.C. Cir. 1979). We have
allowed these exemptions under guidance previously issued by the
Agency. See Reformulated Gasoline and Anti-dumping Questions and
Answers (January 17, 1995).
We received no comments on the proposal to exempt racing vehicle
and aviation gasoline. These provisions are contained in Sec.
80.78(a)(12). Today's rule would finalize these provisions.
F. References to Renewable Oxygenate Requirements
On August 2, 1994, we published regulations that would have
required the use of ``renewable'' oxygenates to meet a portion of the
oxygenate standard for RFG. See 59 FR 39290 (August 2, 1994). However,
implementation of the renewable oxygenate requirements was stayed
effective September 13, 1994, as a result of a legal challenge filed in
the United States Court of Appeals for the DC Circuit. 59 FR 60715
(November 28, 1994). The Court of Appeals ultimately held that the
renewable oxygenate requirements for RFG are invalid. See American
Petroleum Institute v. EPA, 52 F.3rd 1113 (D.C. Cir. 1995).
In the NPRM, we proposed revisions to the RFG regulations to remove
the language relating to the renewable fuels requirement. These
revisions, and other references to renewable fuels, are shown in the
following table. Today's rule would finalize these revisions.
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Sec. 80.65(d)(2)(vi)(C) through (E)............................ Paragraphs are deleted because they apply
only to renewable oxygenate requirements.
Sec. 80.81..................................................... References to renewable oxygenate
requirements at Sec. 80.83 are deleted in
paragraphs (c)(2), (c)(5), (c)(6), and
(c)(10).
Sec. 80.83..................................................... Current section is deleted because it applies
only to renewable oxygenate requirements. A
new section 80.83 is being added which
provides procedures for handling gasoline
treated as blendstock.
Sec. 80.128(e)(2).............................................. Paragraph is revised to delete language that
applies only to renewable oxygenate
requirements.
Sec. 80.128(e)(6).............................................. Paragraph is deleted because it applies only
to renewable oxygenate requirements.
Sec. 80.129(a)................................................. Paragraph is revised to delete language that
applies only to renewable oxygenate
requirements.
Sec. 80.129(d)(3)(iii)......................................... Paragraph is deleted because it applies only
to renewable oxygenate requirements.
----------------------------------------------------------------------------------------------------------------
[[Page 74558]]
G. Butane Blending
Under the RFG and conventional gasoline regulations, the addition
of blendstock, including butane, to RFG or RBOB or conventional
gasoline constitutes the production of gasoline. As a result, a butane
blender is considered to be a refiner, subject to all standards and
requirements that apply to refiners under the regulations. These
requirements include meeting the standards applicable to RFG and
conventional gasoline, sampling and testing each batch of gasoline
produced, recordkeeping, and reporting.
Butane is a blendstock that historically has been blended with
gasoline, particularly in the wintertime. Butane usually is not blended
with gasoline that will be used during the summertime because the
increased volatility of gasoline blended with butane could violate the
federal or state volatility standards that apply during that period.
We believe that the requirement that refiners sample and test each
batch of gasoline produced is a significant impediment to blending
butane. This sampling and testing requirement interferes with butane
blending because butane typically arrives at blend terminals and is
blended in relatively small quantities. Under the current regulations,
a butane blending operation may be required to sample at a frequency
that could be restrictive for some parties. As a result, we proposed to
allow butane to be blended with conventional gasoline under an
alternative sampling and testing option in which compliance would be
based on the butane specifications provided by the butane supplier,
subject to certain conditions specified in the proposal.
1. Butane Blending With Conventional Gasoline
In the NPRM, we proposed that a butane blender who has
documentation from the butane supplier indicating that the butane is of
commercial grade (as defined in the regulations) may include the butane
in anti-dumping compliance calculations based on the properties
specified in the regulations for commercial grade butane. A butane
blender that has documentation from the butane supplier indicating that
the butane is of non-commercial grade (as defined in the regulations)
may include the butane in compliance calculations based on the
properties specified in the regulations for non-commercial grade
butane, provided that the butane blender conducts a quality assurance
program of sampling and testing to ensure that the butane has the
properties specified in the regulations. A party that blends butane
into gasoline under this alternative sampling and testing option would
continue to be classified as a refiner and would be subject to all
other refiner requirements.
When butane is blended into conventional gasoline outside the high
ozone season, we believe there is little adverse environmental impact
as a result of this sampling and testing option, as long as the butane
is of sufficient purity. As a result, we proposed that this alternative
sampling and testing option for butane blended with conventional
gasoline apply during the period outside the high ozone control period
(May 1 through September 15). We have allowed butane to be blended with
conventional gasoline in a manner that is consistent with this approach
in guidance included in Reformulated Gasoline and Anti-dumping
Questions and Answers (October 3, 1994). Our experience has been that
this approach facilitates butane blending, and that certification
mechanisms are appropriate.
Although we proposed to allow use of this sampling and testing
option for the entire period outside the high ozone control period, we
requested comment on whether this sampling and testing option also
should not apply during the ``shoulder periods'' immediately preceding
and following the ozone control period. Most of the commenters
recommended that the proposed flexibility not be disallowed during the
shoulder periods. Some commenters indicated that the use of butane to
allow optimum control of RVP levels in the shoulder periods would
improve performance during these periods. One commenter believed there
would be no adverse environmental effect from blending butane with
conventional gasoline during the shoulder periods because blending low
RVP gasoline with butane is limited by other gasoline specs (e.g.,
distillation), and because the shoulder periods have lower RVP gasoline
from the high ozone period. One commenter, however, believed that
butane blending could have a detrimental effect on the environment
during the shoulder periods, since refiners start producing low vapor
pressure gasoline well below the summer limit to change over the
distribution system by the required dates, and adding butane to the low
RVP gasoline in the spring would increase VOCs and slow the system
changeover. In the fall, butane blending would effect a more
instantaneous increase to the maximum RVP limit, increasing VOCs in
this season.
The anti-dumping requirements for conventional gasoline were
included in the RFG rule to ensure that overall emissions of exhaust
toxics and NOX will not increase over 1990 exhaust toxics
and NOX emissions. After consideration of all the comments
received and upon further analysis by EPA, we believe that, although
gasoline blended with butane during the shoulder periods may have a
somewhat higher RVP than non-butane blended gasoline, blending butane
into conventional gasoline is unlikely to degrade the overall
conventional gasoline pool from 1990 gasoline to any significant
degree, since butane blending is likely to reduce winter complex model
exhaust toxics and NOX emissions. See ``Butane Blending
Technical Analysis,'' Memo to Docket. As a result, today's action would
finalize the provisions for blending butane into conventional gasoline
as proposed, and as currently allowed under the Question and Answer
guidance, with no further limitations with regard to the time period in
which the flexibility is allowed.\8\
---------------------------------------------------------------------------
\8\ Note that today's rule regarding the sampling and testing
requirements for butane blenders under the RFG and anti-dumping rule
does not in any way alter or modify the sampling and testing
requirements contained in 40 CFR 80.340 regarding butane blending
into gasoline under the gasoline sulfur rule in Subpart H.
---------------------------------------------------------------------------
One commenter indicated that, under certain circumstances, a
refinery may wish to blend butane into conventional gasoline during the
high ozone season, and that this practice should be allowed. The
provisions for blending butane into conventional gasoline in today's
rule do not prohibit a refiner from blending butane into conventional
gasoline during the high ozone season. Butane blending into
conventional gasoline may occur during the high ozone season, however,
the butane blender must demonstrate, through sampling and testing, that
the gasoline blended with the butane meets the volatility standards
specified at Sec. 80.27. This would necessitate sampling and testing
each batch of the blended gasoline for RVP using the regulatory test
method in Sec. 80.46.
One commenter said the frequency of quality assurance sampling and
testing for non-commercial grade butane should be one sample for every
500,000 gallons or every three months, whichever is more frequent,
instead of one sample for every 50,000 gallons or every three months,
as proposed. The commenter indicated this would be consistent with the
existing Question and Answer guidance. The guidance requires the
frequency of quality control sampling
[[Page 74559]]
and testing to be one sample for every 65 truckloads or every 17 rail
cars of butane, or every three months, whichever is more frequent. EPA
estimates that the average truckload contains approximately 8,000
gallons of butane. Under the existing guidance, 65 truckloads would be
approximately 500,000 gallons. Therefore, we agree with the commenter
and believe that the proposed requirement to sample for every 50,000
gallons was in error. As a result, today's rule requires quality
assurance sampling and testing for every 500,000 gallons of butane
received, or every three months, whichever is more frequent.
One commenter opposed the additional flexibility for butane
blending which allows compliance with the gasoline standards on the
basis of the butane specifications provided by the butane supplier with
no further obligation to sample and test the finished product. This
commenter believes that, in the case of a violation downstream, it
would not be known whether the batch was off-spec as received by the
butane blender, or whether the butane blender added something other
than butane which caused the violation. Although the commenter raises a
valid concern, we believe that violations of this nature will be rare,
and that the approach in today's action today is adequate to address
such violations. First, the annual average exhaust toxics and
NOX emissions performance standards for conventional
gasoline are met by the refiner. As discussed above, we believe that
adding butane of the purity required by the regulations downstream from
the refiner will not result in an increase of the exhaust toxics or
NOX emissions performance of the gasoline. Under the
regulations, the butane blender must have documentation of the purity
of the butane added, and conduct quality assurance sampling and testing
when blending butane that is not of commercial grade. Second, the only
downstream standard for conventional gasoline is the summertime RVP
standard. Although butane blending may raise the RVP of the gasoline,
under the regulations, a party that blends butane into conventional
gasoline during the high ozone season is required to test for RVP to
ensure compliance with the RVP standard. In addition, under the current
regulations, parties upstream from the facility at which a violation is
detected are presumed liable (as well as the facility where the
violation was detected). To successfully defend against a presumption
of liability, a party must demonstrate that the violation was not
caused by him (or his employee or agent). Such demonstration must
include a reasonably specific showing, by direct or circumstantial
evidence, that the violation was caused or must have been caused by
another party. See Sec. 80.79(b). Therefore, for violations found
downstream from the butane blender, the butane blender would likely be
required to demonstrate that another party contaminated the gasoline
after it left the butane blending facility.
One commenter recommended that the proposed properties for ``non-
commercial'' grade butane be changed to reflect the conventional
gasoline baseline values. As discussed above, the rule provides that a
refiner that blends butane for which the refiner has documents from the
butane supplier demonstrating that the butane has the properties for
non-commercial grade butane may demonstrate compliance based on these
properties provided that the refiner conducts a quality assurance
sampling and testing program of the butane. We believe that butane must
at least be of the quality reflected in the rule for non-commercial
grade butane for EPA to be assured, in the absence of every-batch
testing, that the butane blending will not result in any environmental
degradation.
One commenter suggested that EPA consider not requiring butane
blenders to run the Complex Model equations for each batch of butane
blended. The provisions for butane blenders contain maximum values for
olefins, aromatics, benzene and sulfur for commercial and non-
commercial grade butane. In the NPRM, we proposed that butane blender-
refiners use these values in compliance calculations. We believe,
however, that the Complex Model normally will yield results that are in
compliance using the maximum parameter values prescribed in the rule.
As a result, today's rule requires batch reporting of the volume and
properties of the butane, but does not require parties to calculate
emissions using the Complex Model for each batch of butane blended with
conventional gasoline. However, if a refiner wishes to include butane
blended with conventional gasoline in the annual average compliance
calculations for the refinery, the refiner must calculate the
equivalent emissions performance of the butane using the provisions in
Sec. 80.101(g)(3). Given the difficulty associated with testing
butane, and recognizing that the parameter values prescribed in the
rule provide a worst case scenario, the rule also provides that the
parameter values specified in the rule may be used in calculating the
equivalent emissions performance under Sec. 80.101(g)(3). A refiner
who chooses to include the butane in annual average compliance
calculations must include all butane blended during the annual
averaging period in compliance calculations.
2. Butane Blending With RFG
In the proposal, we requested comment on whether EPA should allow
this sampling and testing option for butane blended with RFG. Several
commenters said that butane blending would improve the performance of
RFG. One commenter recommended that the sampling and testing
flexibility be extended to butane blending with RFG, but be limited to
certain periods of the year and certain areas of the country.
At the time the provisions for butane blending were proposed, we
were unable to establish with any reasonable degree of certainty
whether adding butane to RFG would result in any increase in emissions
of toxics or NOX emissions. Because of the additional level
of environmental concern associated with RFG, we believed that the
flexibility to demonstrate compliance based on butane specifications
provided by the butane supplier rather than on sampling and testing
each butane blend should not be extended to RFG in the absence of data
indicating that there would be no increase in these emissions. However,
based on our recent analysis, we have concluded that, although the
increase in RVP associated with butane blending may cause some increase
in NOX emissions, any negative effect on emissions is not
likely to be significant enough to cause the gasoline to be in
noncompliance with the wintertime RFG emissions standards. See ``Butane
Blending Technical Analysis,'' Memo to Docket. As a result, today's
action allows butane to be blended into RFG in the wintertime under the
provisions in the rule. The sampling and testing provisions for
blending butane into conventional gasoline and RFG are contained in new
Sec. 80.82.\9\
---------------------------------------------------------------------------
\9\ Section 80.82 is currently reserved under the heading
``Conventional gasoline marker.'' At the time the RFG final rule was
promulgated, we elected not to include provisions for a conventional
gasoline marker requirement, but reserved this section in order to
include such provisions at a later date. See 59 FR at 7775 (February
16, 1994). Since we have no current plans to promulgate a
requirement for a conventional gasoline marker, we are using this
section to include the provisions relating to butane blending.
---------------------------------------------------------------------------
Today's rule does not allow use of this sampling and testing option
for blending butane into RFG during the high ozone control period or
during the shoulder periods immediately preceding and immediately
following the high
[[Page 74560]]
ozone control period. The increase in RVP associated with butane
blending causes an increase of VOC emissions. As a result, blending
butane into gasoline that is sold during the ozone control period or
during some period prior to the beginning of the control period may
cause the gasoline to be in noncompliance with the VOC minimum
standard. As discussed above, the RVP increase associated with butane
blending may also result in some increase in NOX emissions.
Both VOC and NOX emissions contribute to higher ozone
levels. When the RFG rule was promulgated, it was anticipated there
would be ozone benefits during the shoulder periods, as well as during
the ozone control period, as a result of the turnover to and from VOC
controlled gasoline at the beginning and end of the ozone control
period.\10\ In many RFG areas, and particularly in areas with warmer
climates, ozone may be of some concern during these shoulder periods.
Blending butane into RFG could compromise the ozone benefits derived
from having lower RVP gasoline in the distribution system before and
after the ozone control period. As a result, today's rule provides that
the sampling and testing option for parties who blend butane into RFG
applies only to the period October 1 through March 31.
---------------------------------------------------------------------------
\10\ See 56 FR 31282-3 (August 19, 1987).
---------------------------------------------------------------------------
For the reasons discussed above regarding butane blended with
conventional gasoline, today's rule does not require parties that blend
butane with RFG or RBOB in accordance with the provisions of Sec.
80.82 to calculate emissions using the Complex Model. However, refiners
who wish to include gasoline batches produced by blending butane with
RFG or RBOB in annual averaging compliance calculations will need to
determine compliance with the RFG standards using the Complex Model. As
discussed above, today's rule provides that the equivalent emissions
performance of butane blended with conventional gasoline may be
determined using the provisions in Sec. 80.101(g)(3). The provisions
in Sec. 80.101(g)(3), however, apply specifically to blendstock
blended with conventional gasoline, and are not applicable to
blendstock blended with RFG or RBOB. As a result, today's rule provides
that, where butane is blended with RFG or RBOB, and where the refiner
wishes to include the butane in annual average compliance calculations,
the relaxed sampling and testing approach under Sec. 80.82 may not be
used. The emissions performance of gasoline produced by blending butane
with RFG or RBOB may be calculated in accordance with the provisions
for using previously certified gasoline in Sec. 80.65(i). Although
this requires sampling and testing of the previously certified gasoline
and the gasoline subsequent to blending the butane, we believe it is
necessary to ensure that the integrity of the RFG program will not be
compromised where butane is included in a refinery's annual average
compliance calculations for RFG or RBOB. A refiner who chooses to
include butane blended with RFG or RBOB in annual average compliance
calculations must include all butane blended during the annual
averaging period in compliance calculations.
Today's rule also adds specific recordkeeping and reporting
provisions for refiners who blend butane with RFG or RBOB or
conventional gasoline. These provisions represent modest changes to the
recordkeeping and reporting requirements for butane blenders. They
require retention of documents and reporting of information necessary
to verify that the requirements of Sec. 80.82 have been met.
H. Gasoline Treated as Blendstock (GTAB)
Today's rule includes provisions for treating imported gasoline as
a blendstock under the RFG rule. These provisions allow an importer to
conduct remedial blending of off-spec imported gasoline. Under the
provisions of today's rule, the volume and properties of the imported
product, called gasoline treated as blendstock, or GTAB, are not
included in the party's importer compliance calculations, but instead
are included in the party's refinery compliance calculations for the
finished product.
Under the RFG and anti-dumping regulations, if imported gasoline is
blended with additional blendstock, the blending constitutes a refinery
operation for which all refiner RFG/anti-dumping requirements must be
met, including compliance with refinery standards, batch sampling and
testing, independent sampling and testing (for RFG), recordkeeping,
reporting, and attest engagements. The RFG or anti-dumping standards
for such an operation must be met solely on the basis of the
blendstocks used, and the imported gasoline which was previously
accounted for by the importer may not be included. This is true
regardless of whether the blending-refining is conducted by the
original importer of the gasoline or by another party. As a result,
under the current regulations, it is difficult for importers to conduct
remedial blending of imported gasoline that does not meet
specifications (i.e, is ``off-spec'') prior to certification as RFG or
conventional gasoline.
In the case of RFG, for example, the importer cannot import off-
spec RFG and then add blendstocks to meet RFG specifications, and the
gasoline cannot be imported as conventional and converted to RFG after
remedial blending. The importer, therefore, must downgrade off-spec RFG
to conventional gasoline, which can have significant financial
consequences to the importer. A refiner who produces a batch of RFG or
conventional gasoline that is off-spec prior to the gasoline leaving
the refinery or being fungibly mixed at the refinery, on the other
hand, can delay designating the gasoline as a batch of RFG, reblend the
batch to correct the off-spec condition, and designate the reblended
gasoline as a batch for refinery compliance calculations.
To correct this situation, we proposed provisions, which would be
finalized by today's rule, that allow importers to conduct remedial
blending of off-spec imported gasoline by treating the imported
conventional gasoline or RFG as blendstock. This allowance is subject
to certain requirements and limitations. For example, to prevent the
marketing of gasoline that has not been certified, the proposal
prohibits GTAB to be sold or transferred by the importer to another
company prior to the completion of remedial blending. The company that
imports the gasoline and classifies it as GTAB in its importer capacity
also must conduct the remedial blending and report the blended gasoline
in its refiner capacity. We believe that without this constraint
gasoline could be lost in the fungible distribution system without ever
having been certified.
In addition, for conventional gasoline standards, which are based
on a company's individual baseline, we proposed to require the company
each year to calculate an adjusted refinery compliance baseline for the
refinery where the GTAB is used to produce gasoline. This adjusted
compliance baseline is calculated separately each calendar year
averaging period in which GTAB is used to produce gasoline, and
consists of the volume-weighted combination of the company's importer
baseline at the GTAB volume for the year, and the refinery's individual
baseline at the refinery's gasoline volume exclusive of GTAB for the
year. This requirement is intended to prevent a company with an
individual refinery baseline that is less stringent than the company's
importer baseline from using the GTAB option as a way to apply the less
stringent refinery baseline to imported gasoline.
[[Page 74561]]
EPA has allowed use of this GTAB option under guidance included in
Reformulated Gasoline and Anti-Dumping Questions and Answers (February
6, 1995). We believe this guidance has been effective in providing
importers with flexibility to correct off-spec imported gasoline, and
that the conditions and limitations have been effective in preventing
compliance difficulties.
We received several favorable comments on the proposal for GTAB.
One commenter, however, recommended that EPA eliminate a proposed
provision which would prohibit GTAB from being placed in a storage tank
containing other gasoline unless the gasoline in the storage tank has
the same designations under Sec. 80.65(d) as the gasoline to be
produced using the GTAB. The commenter believes that this prohibition
was intended to prevent an importer from using conventional gasoline in
the production of RFG and from reclassifying RFG with regard to VOC
control in violation of Sec. 80.78(a)(1). The commenter believes that
this prohibition should be eliminated in light of the greater flexibility
given to refiners for using previously certified gasoline (PCG).
The PCG provisions referred to in the comment were proposed
finalized on December 28, 2001. 66 FR 67098. These provisions allow a
refiner to use PCG in the production of a new batch of gasoline by
entering the PCG batch in the refinery's compliance calculations as a
negative batch in the category of its original designation. We do not
believe that the GTAB provisions are in conflict with the provisions
for using PCG. GTAB itself is not considered to be PCG, since it was
not previously certified by the importer and included in the importer's
compliance calculations. Instead, as discussed above, the GTAB is
treated as a blendstock. In some cases, the PCG provisions may be used
in the same blending operation that uses the GTAB approach. In such
cases, the importer/refiner would determine the volume and properties
of the GTAB and report the GTAB batch in its importer report to EPA,
but would not include the volume and properties of the GTAB in its
importer compliance calculations. The GTAB could then be put into a
storage tank with PCG of a different designation, assuming the volume,
properties and designation of the PCG were determined before the
products were commingled. The importer/refiner could then blend the
GTAB and PCG, with or without other blendstock, to produce a new batch.
The PCG volume and properties would be entered as a negative batch in
the refinery's compliance calculations in the category of the PCG
batch's original designation. The entire batch would then be sampled
and tested and included in the refinery's compliance calculations
(using the appropriate GTAB equation). Today's action includes language
to clarify that the PCG provisions and the GTAB provisions may be used
in the same blending operation. However, where the PCG procedures are
not used, GTAB may not be placed in a storage tank containing other
gasoline unless the other gasoline has the same designations under
Sec. 80.65(d).
The commenter also recommended that Sec. 80.83(e) be rewritten to
clarify that the provisions for determining an adjusted baseline do not
apply to GTAB used to produce RFG after January 1, 1998, since there
are no RFG standards based on individual baselines after that date. We
agree with the commenter and today's action changes the regulatory
language to clarify that the provisions for determining an adjusted
baseline do not apply to GTAB used to produce RFG after January 1, 1998.
One commenter recommended that EPA clarify whether importers are
required to use their independent lab for GTAB imports, and whether the
reports of GTAB should be sent on an annual basis.
We believe the regulations as proposed are clear with regard to
both the independent lab requirement and the reporting requirements.
Section 80.83(f)(1) requires independent lab sampling and testing for
GTAB used to produce RFG. Section 80.83(f)(3) requires any GTAB that is
used to produce RFG to be treated as imported RFG for purposes of
sampling and testing, which would include the independent lab requirement.
In the NPRM, we proposed to add provisions to the recordkeeping and
reporting requirements for RFG regarding GTAB. These provisions require
refiners and importers to keep records that reflect the physical
movement of the GTAB from the point of importation to the point of
blending to produce RFG, and require GTAB to be identified as such on
quarterly RFG reports. We also proposed similar recordkeeping
requirements for GTAB under the anti-dumping regulations for
conventional gasoline. We received no negative comments on these
provisions and they are being finalized as proposed. The proposal,
however, did not include a requirement that parties identify GTAB
batches on their anti-dumping annual reports. Today's final action
includes this requirement, which we believe is a logical outgrowth of
the proposal.
One commenter pointed out that the GTAB provisions as proposed fail
to define certain terms in the equations. Today's rule corrects this
oversight by including definitions for all terms in the equations.
Today's rule also finalizes the definition of GTAB which was
previously proposed. The definition is at Sec. 80.2(f).
Finally, today's rule adds a new Sec. 80.211 to allow the GTAB
provisions to be used for purposes of compliance with the gasoline
sulfur requirements in Subpart H. The rationale for allowing use of the
GTAB provisions under the RFG/anti-dumping regulations also applies to
use of the GTAB provisions under the gasoline sulfur regulations. We
believe that application of the GTAB provisions to the gasoline sulfur
regulations will provide consistency in the fuels regulations regarding
the way off-spec imported gasoline may be treated. We believe that this
provision is a logical outgrowth of the proposal for use of GTAB under
the RFG/anti-dumping regulations.
V. Anti-Dumping Requirements
A. Imports of Gasoline by Truck
The requirements that apply to imported gasoline under Sec. Sec.
80.65(b) and (c), and 80.101(d) and (i), apply to each batch of
imported gasoline regardless of the mode of transportation. These
requirements include batch sampling and testing, independent sampling
and testing for RFG, recordkeeping, reporting and attest engagements.
Therefore, an importer who imports gasoline into the United States by
truck is required to meet these requirements, including sampling and
testing for each batch of gasoline. For a truck importer, a batch could
consist of the gasoline contained in the truck if homogeneous, or in
each truck compartment if the truck's gasoline is not homogeneous.
We believe that the every-batch requirements may be difficult to
meet when gasoline is imported by truck, because of the relatively
small batch volumes involved. As a result, we proposed a limited
alternative method by which importers could meet the requirements for
conventional gasoline that is imported into the United States by truck.
This approach is limited to imported conventional gasoline, and does
not apply in the case of imported RFG because of the additional level
of environmental concern associated with RFG.
The proposed approach was based on the importer meeting the
conventional
[[Page 74562]]
gasoline standards on a per-gallon basis, rather than the current
regulatory approach of meeting conventional gasoline standards on
average. Per-gallon compliance was proposed so that the importer would
not have to sample and test each truck load of imported gasoline, which
we believed would be necessary for demonstrating compliance with a
standard on average. Under the proposal, the importer instead would be
allowed to rely on sampling and testing conducted by the operator of
the truck loading terminal to verify that the gasoline meets all
conventional gasoline standards that apply to the importer.
Because the terminal operator in most cases would not be subject to
United States laws, the proposal contained safeguards intended to
ensure that the gasoline in fact meets the applicable standards. Under
the proposal, the importer would be required to conduct an independent
program of quality assurance sampling and testing of the gasoline
dispensed to the importer. This sampling and testing would be at a rate
specified in the proposal, and the sampling would be unannounced to the
terminal operator. In addition, EPA inspectors would be given access to
conduct inspections at the truck loading terminal and at any laboratory
where samples collected pursuant to this approach are analyzed.
We have allowed conventional gasoline to be imported by truck in a
manner that is consistent with the approach proposed in the NPRM under
guidance include in Reformulated Gasoline and Anti-dumping Questions
and Answers, August 29, 1994. Our experience has been that this
approach facilitates imports of conventional gasoline by truck, and
that the sampling and testing requirements are appropriate enforcement
safeguards. As a result, today's rule would finalize the provisions for
imports of gasoline by truck as proposed, except for the addition of
certain provisions as discussed below. The provisions are contained in
Sec. 80.101(i)(3).
Two issues regarding this sampling and testing approach for truck
importers have arisen since the publication of the NPRM. The first
issue involves whether truck importers would be able to meet the
Complex Model exhaust toxics and NOX emissions standards on
a per-gallon basis. The Complex Model, which was required to be used
for demonstrating compliance with the emissions standards beginning on
January 1, 1998, calculates higher emissions for gasoline used in the
winter due to the extra emissions that result from cold engine start-
up, as compared to emissions calculated for gasoline used in the
summer. The annual average exhaust toxics and NOX standards
were established by combining higher winter emissions with relatively
lower summer emissions. Importers, therefore, are able to meet
conventional gasoline standards on average by offsetting the higher
emissions of winter gasoline with the lower emissions of summer
gasoline. The issue for truck importers under the current guidance and
NPRM, which require compliance on a per-gallon basis, is that gasoline
produced during the winter may not meet the emissions standards on a
per gallon basis. As a result, we modified the August 29, 1994
guidance, which allows truck importers to fulfill the sampling and
testing requirements based on test results from the truck loading
terminal, to also allow truck importers of conventional gasoline to
comply with the conventional gasoline standards on an annual average
basis. See Letter to Gregory M. Scott, Society of Independent Gasoline
Marketers of America, from Steven A. Herman, dated January 2, 1998.
Our experience since 1998 has indicated that, under this approach,
the quality of gasoline imported by truck meets the anti-dumping
standards without environmental detriment, and that this approach is
necessary for truck importers to comply with the Complex Model
standards. As a result, today's action includes a provision in Sec.
80.101(i)(3) which allows truck importers of conventional gasoline who
use the modified sampling and testing approach to comply with the
conventional gasoline standards on an annual average basis.
The second issue involves the requirement that truck importers who
rely on test results from the foreign terminal must conduct quality
assurance sampling and testing to verify the terminal's testing. Under
the guidance and NPRM, the quality assurance testing may be conducted
by either the importer or an independent laboratory. In some instances,
however, every-batch sampling and testing is conducted at the terminal
by an independent laboratory. In these situations, i.e., where an
independent laboratory samples and tests each batch of gasoline at the
truck-loading terminal supplying the importer's trucks, we believe that
additional quality assurance sampling and testing by the importer or
independent laboratory is redundant. As a result, we believe that a
truck importer may satisfy the sampling and testing requirements,
including the quality assurance requirement, using results from
sampling and testing conducted by an independent laboratory at the
truck-loading terminal, provided that the sampling and testing is
conducted subsequent to each receipt of gasoline into the storage tank
supplying the importer's truck, or immediately prior to each transfer
of gasoline into the importer's truck. See Letter to Kevin J. Kyle, Pal
Energy Corporation, from Charles N. Freed, dated April 23, 1998.
Today's rule includes provisions in Sec. 80.101(i)(3) to clarify this
approach.
We received comments on the original proposal for truck importers
from three parties. One commenter said that the quality assurance
requirement is particularly difficult for small importer companies and
that such companies should be exempt from the quality assurance
sampling and testing so long as independent laboratory tests are being
performed by other larger import companies and the gasoline is pulled
from the same terminal and the same tankage. While we do not believe
that an exemption from the quality assurance sampling and testing is
warranted, we believe that the provisions in today's rule do not
prohibit a smaller truck importer from entering into an arrangement
with a larger importer to use tests results obtained from an
independent laboratory that conducts sampling and testing on the same
terminal tankage for the larger importer.
Two commenters recommended that EPA expand the provisions for truck
importers to include rail tank cars. We proposed these provisions
specifically for truck importers based on information we had received
regarding the particular difficulties that truck importers have
conducting every batch sampling and testing due to the small batch
sizes transported in tank truck compartments. We believe that every
batch sampling and testing does not impose similar burdens on importers
who import gasoline by rail tank cars and the NPRM did not seek notice
and comment on these provisions being applied to such importers. As a
result, today's rule does not extend the provisions for tank truck
importers to importers who import gasoline by rail.
B. Date for Submission of Attest Engagement Reports
Section 80.105(c) requires that attest engagement reports involving
conventional gasoline must be submitted by May 30 each year. However,
Sec. 80.75(m) requires that attest engagement reports for RFG must be
submitted by May 31 each year. This inconsistency in reporting
deadlines was inadvertent when these sections were promulgated, and, as
a result, we proposed to conform the dates by adopting May 31 as the
deadline for
[[Page 74563]]
submitting conventional gasoline attest reports. We received no
comments on this change and today's action would finalize it as proposed.
VI. Attest Engagements
Under Sec. Sec. 80.65(h), 80.75(m), and 80.105(c) refiners and
importers, and reformulated gasoline oxygenate blenders who achieve
compliance on average, are required to commission an audit each year to
review compliance with certain requirements of the reformulated
gasoline and anti-dumping regulations. The audit requirements are
specified in 40 CFR Part 80, Subpart F. Under these regulations, the
auditor evaluates compliance with the specified requirements by
completing audit procedures, called ``agreed upon procedures,'' that
are included in the regulations for each requirement; i.e., the auditor
``attests'' to the results of the agreed upon procedures. As a result,
the overall audit is called an ``attest engagement.''
In the NPRM, we proposed a number of changes to the attest
engagement requirements. Certain of these proposed changes are included
in today's rule and are discussed below.
A. Modification to Agree-Upon Procedures in Sec. Sec. 80.128 and
80.129, and Promulgation of Agreed-Upon Procedures in Sec. Sec. 80.133
and 80.134
First, today's rule amends the attest provisions in Subpart F to
include new attest procedures. The agreed upon procedures for refiners
and importers currently are specified in Sec. 80.128, and for
oxygenate blenders in Sec. 80.129. Since promulgation of these
procedures, we received comments from industry, and from auditors who
conducted attest engagements under this program, that the agreed upon
procedures in Sec. Sec. 80.128 and 80.129 should be modified in order
to be more efficient. A group of auditors working in this area convened
under the auspices of the American Institute of Certified Public
Accountants (AICPA) to develop new attest procedures. This group
submitted modified attest procedures to EPA in January 1996, and asked
EPA to approve these procedures for use. On March 15, 1996, by letter
to Ian A. MacKay, AICPA, EPA approved use of the attest procedures
AICPA submitted, with certain modifications, under the authority of
Sec. 80.128. In the NPRM, EPA proposed to amend the attest provisions
in Subpart F to include these modified attest procedures. Today's rule
would finalize these procedures. The modified attest procedures for
refiners and importers are contained in Sec. 80.133. The modified
attest procedures for oxygenate blenders are contained in Sec. 80.134.
The modified attest procedures do not differ significantly in
substance from the procedures in Sec. Sec. 80.128 and 80.129. The
principal difference between the modified attest procedures and the
procedures in Sec. Sec. 80.128 and 80.129 is that the modified
procedures include criteria for identifying when certain attest
procedures, or categories of attest procedures, are unnecessary for a
particular attest engagement. These modified attest procedures have
been used successfully by numerous auditors for attest engagements
since the 1995 reporting period.
The modified attest procedures submitted by AICPA included certain
terms not included in the original procedures. Today's rule finalizes
definitions for certain of these terms which were previously proposed.
These definitions do not change the substance of the original procedures.
We received several comments on the modified attest provisions. One
commenter said that Sec. 80.133 lumps importers with refiners even
though the items noted in the proposed language do not always apply to
importers. The commenter recommends that importer procedures be
separately defined and should consider the logistical aspects of
terminal operation. Another commenter indicated that the attest
provisions are inappropriate in situations where an importer brings
GTAB into a terminal used by other refiner/importers.
We understand that importers, including importer-refiners who blend
GTAB, may use different tanks at different times, and as a result,
inventory reconciliation cannot always be done in the same way it is
done by crude oil refiners with fixed tanks. Therefore, we believe that
the inventory reconciliation for importers, including GTAB importer-
refiners, can be done with other data, such as Customs records and
other commercial documents, if full inventory reconciliation is not
available due to non-continuous use of tanks.
One commenter said that the results in Sec. 80.133(h)(3) will not
agree due to test variances and oxygenate purity. The commenter
recommended that EPA allow the acceptable ranges at Sec. 80.65(e) for
this procedure and also to fulfill the requirements at Sec.
80.133(h)(4)(ii)(B). We agree with the comment and have added a
provision to allow the acceptable ranges set forth in the chart at
Sec. 80.65(e).
In addition, the commenter recommended that EPA provide an
acceptable range for total weight percent oxygen to fulfill the
requirements under Sec. 80.133(h)(4)(i), since an oxygenate weight
percent of exactly 2.0 would not be likely due to the variables
associated with the laboratory testing, ethanol purity and specific
gravities. This provision, however, requires the attest auditor to
compare only records relating to RBOB for which the refiner designated
a specific type and amount of oxygenate to be blended by the oxygenate
blender. The auditor must agree the refiner's oversight test results of
the type of oxygenate used and the oxygenate content to the
instructions for type and amount of oxygenate designated on the product
transfer documents for the RBOB. The results must be within the
acceptable range for the oxygenate given in Sec. 80.65(e)(2)(i). This
provision does not require the auditor to compare results of oxygenate
weight percent testing. A range for total weight percent oxygen,
therefore, is unnecessary and irrelevant to the attest requirements
under Sec. 80.133(h)(4)(i). Today's rule modifies the proposed
regulatory language to clarify this requirement.
We also proposed that the original attest procedures in Sec. Sec.
80.128 and 80.129 would continue to be available as alternatives to the
proposed attest procedures prior to the 1998 reporting period, and that
the attest procedures in Sec. Sec. 80.133 and 80.134 would be required
for subsequent reporting periods. We proposed to phase out the original
attest procedures because we believed the modified attest procedures
are superior and ultimately should be used for all attest engagements.
In addition, we believed that oversight of the attest requirement,
including reviews of attest reports, would be more efficient if all
attest engagements were based on the same agreed upon procedures. We
proposed that during the period when both the original and the modified
attest procedures are available, parties would be required to use
either the original attest procedures for refiners and importers under
Sec. 80.128 in its entirety, or the modified attest procedures for
refiners and importers under Sec. 80.133 in its entirety. A party
would not be allowed to use a mixture of attest procedures from Sec.
80.128 and Sec. 80.133. Similarly, an oxygenate blender would be
required to use the attest procedures in Sec. 80.129 or in Sec.
80.134, and could not mix attest procedures from both sections. The
reason for this constraint is that the different attest procedure
sections contain different requirements that are organized differently,
and, at least in part, the logic of the sections would be lost if these
sections are not completed in their entirety.
We received no negative comments on the proposal to phase out the
old attest
[[Page 74564]]
procedures. We continue to believe it is appropriate to phase out the
original procedures. As a result, today's rule allows use of the attest
procedures at Sec. Sec. 80.128 and 80.129 as alternatives to the
procedures at Sec. Sec. 80.133 and 80.134 through the attest for the
2005 reporting period. Beginning with the attest engagements for the
2006 reporting period, only the attest procedures at Sec. Sec. 80.133
and 80.134 may be used.
Section 80.125 contains the general requirement for attest audits.
Today's rule would finalize proposed modifications to Sec. 80.125, to
require use of the new attest procedures in Sec. Sec. 80.133 and
80.134, and allow the use of Sec. Sec. 80.128 and 80.129 as
alternatives until 2006.
B. Attest Procedures for GTAB, Previously Certified Gasoline (PCG),
Truck Importers and Butane Blenders
As discussed above, today's rule finalizes procedures by which
importers may treat imported gasoline as blendstock (GTAB)(Sec.
80.83), modified sampling and testing procedures for importers who
import conventional gasoline by truck (Sec. 80.101(i)(3)), and
procedures for butane blenders (Sec. 80.101(i)(4)). As a result, we
are also finalizing the proposed attest procedures that would apply in
the case of parties who utilize these options. These attest procedures
follow the general model of the attest procedures included in
Sec. Sec. 80.128, 80.129, 80.133 and 80.134.\11\
---------------------------------------------------------------------------
\11\ On December 28, 2001, we finalized procedures for using
previously certified gasoline (PCG), and related attest procedures
for PCG. 66 FR 67098. These attest procedures currently are
contained in Sec. 80.131. Today's rule renumbers these PCG attest
procedures in Sec. 80.131 and adds the attest provisions for GTAB,
truck importers and butane blenders. The substance of the attest
provisions for PCG is unchanged.
---------------------------------------------------------------------------
One commenter said that inventory accounting records usually
distinguish only between conventional gasoline and RFG, and do not
distinguish between imports and domestic receipts or GTAB, unfinished
gasoline, etc. As a result, these records cannot be used as an
independent verification of the total import volume, total GTAB, etc.
The commenter recommended that EPA allow the use of other documents to
reconcile under Sec. 80.133(a)(1). This commenter also recommended
that EPA add ``or tank containing blendstock'' to Sec.
80.131(a)(3)(iii), since the refiner/importer may discharge GTAB to a
blending tank containing blendstocks. We agree with the comments and
have modified Sec. 80.131(a)(1) of the GTAB attest section to allow
the use of alternative documents to agree the volumes if the yield
accounting documents are not sufficient. We have also modified Sec.
80.131(a)(3)(iii) to include the phrase ``or tank containing
blendstock.'' In addition, today's rule adds a provision to the attest
requirements for PCG which parallels Sec. 80.131(a)(1), including the
change discussed above. This provision, which was proposed and received
no negative comments, was inadvertently omitted from attest
requirements in the final PCG rule.
Today's rule also would finalize a proposed provision in Sec.
80.125 which reflects the requirement for GTAB attest engagements, with
a modification which adds the requirement for attest engagements for
truck importers, PCG and butane blenders.
VII. Public Participation
We solicited comments on the need to take the actions proposed in
the July 11, 1997 NPRM, including the actions in today's direct final
rule. We reviewed and considered all written comments on these changes
to the RFG and conventional gasoline regulations. All comments received
by EPA are located in the EPA Air Docket, Docket A-97-03 (See ADDRESSES).
VIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Paperwork Reduction Act
The information collection requirements in this direct final rule
have been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
information collection requirements are not enforceable until OMB
approves them.
This direct final rule makes certain revisions to the RFG and
conventional gasoline regulations which provide regulated parties with
additional flexibility to comply with the regulations. Some of the
revisions in today's action lessen the information collection burdens
on certain regulated parties; for example, the rule reduces the
sampling and testing requirements for importers who import gasoline by
truck. Most of the revisions in today's action will not result in any
additional reporting or recordkeeping burdens. Some of the provisions
that provide additional flexibility for regulated parties necessitate
modest recordkeeping and reporting requirements.
The estimated total annual hour burden on industry for this
rulemaking is approximately 1398 hours. This estimate is based on an
average of 1 hour per respondent x 40 respondents for GTAB
recordkeeping and reporting, 33.40 hours per respondent x 40
respondents for GTAB sampling and testing, and 1.08 hours per
respondent x 20 respondents for butane blending recordkeeping and
reporting. The estimated total annual cost burden on industry for this
rulemaking is $83,860. This estimate is based on an annual cost of $60
per respondent x 40 respondents for GTAB recordkeeping and reporting,
$2,004 per respondent x 40 respondents for GTAB sampling and testing,
and $65 per respondent x 20 respondents for butane blending
recordkeeping and reporting.
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
[[Page 74565]]
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. When
this ICR is approved by OMB, the Agency will publish a technical
amendment to 40 CFR part 9 in the Federal Register to display the OMB
control number for the approved information collection requirements
contained in this direct final rule.
C. Regulatory Flexibility Act
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 direct final rule
on small entities, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
This rule involves technical corrections, clarifications and
codification of certain Agency guidance intended to promote successful
implementation of the requirements for reformulated and conventional
gasoline and does not include additional regulatory requirements on
small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory requirements.
Today's direct final 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 direct final rule imposes
no enforceable duty on any State, local or tribal governments or the
private sector. This rule applies only to gasoline refiners, importers,
blenders and marketers.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This direct final rule does not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. The rule would
finalize certain technical and minor changes to the RFG rule, clarify
provisions, and codify certain guidance previously issued by the Agency.
Thus, Executive Order 13132 does not apply to this direct final rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This direct final rule does
not have tribal implications as specified in Executive Order 13175.
This rule applies to gasoline refiners, importers, blenders and
marketers. Today's rule modifies the Federal RFG and conventional
gasoline requirements, and does not impose any enforceable duties on
communities of Indian tribal governments. Thus, Executive Order 13175
does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This direct final rule is not
subject to Executive Order 13045 because it does not establish an
environmental standard
[[Page 74566]]
intended to mitigate health or safety risks.
H. Executive Order 13211: Acts That Significantly Affect Energy Supply,
Distribution, or Use
This direct final 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.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d) (15
U.S.C. 272 note) directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This action does not involve any new technical standards.
Therefore, EPA did not consider the use of any voluntary consensus
standards.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A ``major rule''
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(a).
IX. Statutory Provisions and Legal Authority
Statutory authority for today's direct 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. Today's action is a rulemaking
subject to the requirements of CAA section 307(d).
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 2, 2005.
Stephen L. Johnson,
Administrator.
? For the reasons set out 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: 42 U.S.C. 7414, 7545, and 7601(a).
Subpart A--[Amended]
? 2. Section 80.2 is amended by revising footnote 1 in paragraph (c), and
paragraph (ee); and by adding paragraph (ww), to read as follows:
Sec. 80.2 Definitions.
* * * * *
(c) * * * \1\
---------------------------------------------------------------------------
\1\ State means a State, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American
Samoa and the Commonwealth of the Northern Mariana Islands.
---------------------------------------------------------------------------
* * * * *
(ee) Reformulated gasoline means any gasoline whose formulation has
been certified under Sec. 80.40, and which meets each of the standards
and requirements prescribed under Sec. 80.41.
* * * * *
(ww) Gasoline Treated as Blendstock, or GTAB, means imported
gasoline that is excluded from the import facility's compliance
calculations, but is treated as blendstock in a related refinery that
includes the GTAB in its refinery compliance calculations.
* * * * *
Subpart D--[Amended]
? 3. Section 80.41 is amended by revising paragraph (p) to read as follows:
Sec. 80.41 Standards and requirements for compliance.
* * * * *
(p) Effective date for changed minimum or maximum standards. In the
case of any minimum or maximum standard that is changed to be more
stringent by operation of paragraphs (k), (m), (n), or (o) of this
section, the effective date for such change shall be the following
number of days after the date EPA announces the change:
(1) 90 days for refinery or import facilities;
(2) 180 days for retail outlets and wholesale purchaser-consumer
facilities; and
(3) 150 days for all other facilities.
* * * * *
? 4. Section 80.45 is amended by revising paragraphs (c)(1)(iv)(C)(6),
(c)(1)(iv)(D)(6) and (d)(1)(iv)(B) to read as follows:
Sec. 80.45 Complex emissions model.
* * * * *
(c) * * *
(1) * * *
(iv) * * *
(C) * * *
(6) If [80.32 + (0.390 x ARO)]
exceeds 94 for the target fuel, and
the target fuel value for E300 exceeds 94, then the E300 value for the
``edge target'' fuel shall be set equal to 94 volume percent.
* * * * *
(D) * * *
(6) If [79.75 + (0.385 x ARO)]
exceeds 94 for the target fuel, and
the target fuel value for E300 exceeds 94, then the E300 value for the
``edge target'' fuel shall be set equal to 94 volume percent.
* * * * *
(d) * * *
(1) * * *
(iv) * * *
(B) For fuels with SUL, OLE, and/or ARO levels outside the ranges
defined in Table 7 of paragraph (d)(1)(iv)(A) of this section,
YNOx(t) shall be defined as:
(1) For Phase I:
YNOx(t) = 100% x 0.82 x [exp(n1(et))/
exp(n1(b)) - 1]
+ 100% x 0.18 x [exp(n2(et))/exp(n2(b)) - 1]
+ {100% x 0.82 x [exp(n1(et))/exp(n1(b))]
x [{[(-
0.00000133 x SULet) + 0.000692]
x [Delta]SUL{time}
+ {[(-0.000238 x AROet) + 0.0083632]
x [Delta]ARO{time}
+ {[(0.000733 x OLEet) - 0.002774]
x
[Delta]OLE{time} ]{time}
[[Page 74567]]
+ {100% x 0.18 x [exp(n2(et))/exp(n2(b))]
x [{0.000252 x [Delta]SUL{time} +
+ {[(-0.0001599 x AROet) + 0.007097]
x [Delta]ARO{time}
+ {[(0.000732 x OLEet) - 0.00276]
x
[Delta]OLE{time} ]{time}
(2) For Phase II:
YNOX(t) = 100% x 0.738 x [exp(n1(et))/
exp(n1(b)) - 1]
+ 100% x 0.262 x [exp(n2(et)/exp(n2(b)) - 1]
+ [100% x 0.738 x [exp(n1(et))/exp(n1(b))]
x [{[(-0.00000133 x SULet) + 0.000692]
x [Delta]SUL{time}
+ {[(-0.000238 x AROet) + 0.0083632]
x [Delta]ARO{time}
+ {[(0.000733 x OLEet) - 0.002774]
x
[Delta]OLE{time} ]{time}
+ {100% x 0.262 x [exp(n2(et))/exp(n2(b))]
x [{0.000252 x [Delta]SUL{time} +
x [{(-0.0001599 x AROet) + 0.007097]
x [Delta]ARO{time}
+ {[(0.000732 x OLEet) - 0.00276]
x
[Delta]OLE{time} ]{time}
Where:
n1, n2 = The equations defined in paragraphs
(d)(1) (i) and (ii) of this section.
et = Collection of fuel parameters for the ``edge target'' fuel. These
parameters are defined in paragraphs (d)(1)(iv) (C) and (D) of this
section.
n1(et) = The function n1 evaluated with ``edge
target'' fuel parameters, which are defined in paragraph (d)(1)(iv)(C)
of this section.
n2(et) = The function n2 evaluated with ``edge
target'' fuel parameters, which are defined in paragraph (d)(1)(iv)(C)
of this section.
n1(b) = The function n1 evaluated with the
appropriate baseline fuel parameters defined in paragraph (b)(2) of
this section.
n2(b) = The function n2 evaluated with the
appropriate baseline fuel parameters defined in paragraph (b)(2) of
this section.
SULet = The value of SUL for the ``edge target'' fuel, as
defined in paragraph (d)(1)(iv)(C) of this section.
AROet = The value of ARO for the ``edge target'' fuel, as
defined in paragraph (d)(1)(iv)(C) of this section.
OLEet = The value of OLE for the ``edge target'' fuel, as
defined in paragraph (d)(1)(iv)(C) of this section.
* * * * *
? 5. Section 80.49 is amended by revising the paragraph (a) introductory
text, the entry for ``New Parameter'' in the table in paragraph (a)(1),
paragraph (a)(3) introductory text, and the paragraph (b) introductory
text to read as follows:
Sec. 80.49 Fuels to be used in augmenting the complex emission model
through vehicle testing.
(a) Seven fuels (hereinafter called the ``addition fuels'') shall
be tested for the purpose of augmenting the complex emission model with
a parameter not currently included in the complex emission model. The
properties of the addition fuels are specified in paragraphs (a)(1) and
(2) of this section. The addition fuels shall be specified with at
least the same level of detail and precision as in paragraph (a)(5)(i)
of this section, and this information must be included in the petition
submitted to the Administrator requesting augmentation of the complex
emission model.
(1) * * *
Properties of Fuels To Be Tested When Augmenting the Model With a New Fuel Parameter
----------------------------------------------------------------------------------------------------------------
Fuels
Fuel property ----------------------------------------------------------------------------
1 2 3 4 5 6 7
----------------------------------------------------------------------------------------------------------------
* * * * * * *
New Parameter \1\.................. C (C+B)/2 B C B C B
----------------------------------------------------------------------------------------------------------------
\1\ C = Candidate level, B = Baseline level.
* * * * *
(3) The addition fuels shall be specified with at least the same
level of detail and precision as in paragraph (a)(5)(i) of this
section, and this information shall be included in the petition
submitted to the Administrator requesting augmentation of the complex
emission model.
* * * * *
(b) Three fuels (hereinafter called ``extention fuels'') shall be
tested for purpose of extending the valid range of the complex emission
model for a parameter currently included in the complex emission model.
The properties of the extension fuels are specified in paragraphs
(b)(2) through (4) of this section. The extension fuels shall be
specified with at least the same level of detail and precision as in
paragraph (a)(5)(i) of this section, and this information must be
included in the petition submitted to the Administrator requesting
augmentation of the complex emission model. Each set of three extension
fuels shall be used only to extend the range of a single complex model
parameter.
* * * * *
? 6. Section 80.50 is amended by revising paragraph (a)(2) to read as
follows:
Sec. 80.50 General test procedure requirements for augmentation of
the emission models.
(a) * * *
(2) Toxics emissions must be measured when testing the extension
fuels per the requirements of Sec. 80.49(b) or when testing addition
fuels 1, 2, or 3 per the requirements of Sec. 80.49(a).
* * * * *
? 7. Section 80.65 is amended by:
? a. Removing and reserving paragraph (d)(2)(iii), and removing
paragraphs (d)(2)(vi)(C), (D) and (E);
? b. Revising the heading in paragraph (e), paragraph (e)(1), and the
first sentence of paragraph (e)(2)(ii)(B);
? e. Removing and reserving paragraph (g), to read as follows:
Sec. 80.65 General requirements for refiners, importers, and
oxygenate blenders.
* * * * *
(e) Determination of volume and properties. (1) Each refiner or
importer shall for each batch of reformulated gasoline or RBOB produced
or imported determine the volume and the value of each of the
properties specified in paragraph (e)(2)(i) of this section, except
that the value for RVP must be determined only in the case of
reformulated gasoline or RBOB that is VOC-controlled. These
determinations shall:
(i) Be based on a representative sample of the reformulated
gasoline or RBOB that is analyzed using the methodologies specified in
Sec. 80.46;
(ii) In the case of RBOB, follow the oxygenate blending
instructions specified in Sec. 80.69(a);
[[Page 74568]]
(iii) Be carried out either by the refiner or importer, or by an
independent laboratory; and
(iv) Be completed prior to the gasoline or RBOB leaving the
refinery or import facility for each parameter that the gasoline or
RBOB is subject to, or that is used to calculate an emissions
performance that the gasoline or RBOB is subject to, under Sec.
80.41(a) through (f).
(2) * * *
(ii) * * *
(B) The refiner or importer shall have the gasoline analyzed for
the property at one additional independent laboratory. * * *
* * * * *
? 8. Section 80.67 is amended by revising paragraph (h)(1)(iv) to read as
follows:
Sec. 80.67 Compliance on average.
* * * * *
(h) * * *
(1) * * *
(iv) The credits are transferred, either through inter-company or
intra-company transfers, directly from the refiner, importer, or
oxygenate blender that creates the credits to the refiner, importer, or
oxygenate blender that uses the credits to achieve compliance;
* * * * *
? 9. Section 80.68 is amended by:
? a. Revising the first sentence of paragraph (b)(2)(ii);
? b. Revising paragraphs (c)(9)(i)(B), (c)(9)(ii)(B), and (c)(10)(ii);
? c. Adding a new footnote 2;
? d. Adding paragraphs (c)(10)(iii), (iv) and (v); and
? e. Revising paragraphs (c)(11), (c)(12), and (c)(13)(iii) to read as
follows:
Sec. 80.68 Compliance surveys.
* * * * *
(b) * * *
(2) * * *
(ii) In the event that any covered area(s) fails a survey or survey
series according to the criteria set forth in paragraph (c) of this
section, the annual decreases in the numbers of surveys prescribed by
paragraph (b)(1) of this section, as adjusted by paragraph (b)(2)(i) of
this section, shall be adjusted as follows in the year following the
year of the failure.* * *
* * * * *
(c) * * *
(9)(i) * * *
(B) The annual average of the toxics emissions reduction
percentages for all samples from a survey series shall be calculated
according to the following formula \2\:
---------------------------------------------------------------------------
\2\ The formula requires, first, that the toxic reductions of
samples taken in each one-week survey be averaged to obtain an
average for each such survey. Then these survey averages are,
themselves, averaged separately for high-ozone and non-high-ozone
season surveys, to obtain two overall averages. These overall
averages are each to be multiplied by a seasonal weight (0.468 for
high-ozone season and 0.532 for non-high ozone season) and the
resulting products added together to obtain the average annual toxic
emission reduction.
[GRAPHIC]
[TIFF OMITTED]
TR15DE05.010
---------------------------------------------------------------------------
Where:
AATER = the annual average toxics emissions reduction
TER1,j = the toxics emissions reduction for sample j of
gasoline collected during the high ozone season
TER2,j = the toxics emissions reduction for sample j of
gasoline collected outside the high ozone season
n1 = the number of gasoline samples collected during a one-
week survey conducted within the high ozone season
s1 = the number of one-week surveys conducted within the
high ozone season
n2 = the number of gasoline samples collected during a one-
week survey conducted outside the high ozone season
s2 = the number of one-week surveys conducted outside of the
high ozone season
* * * * *
(ii) * * *
(B) The annual average of the toxics emissions reduction
percentages for a survey series shall be calculated according to the
formula specified in paragraph (c)(9)(i)(B) of this section; and
* * * * *
(10) * * *
(ii) The average NOX emission reduction percentage for
each single week-long NOX survey shall be calculated as the
average of all NOX emission reduction percentages from the
survey.
(iii) The covered area shall have failed a NOX survey if
the average NOX emissions reduction percentage for all
survey samples is less than the applicable Phase I or Phase II complex
model per-gallon standard for NOX emissions reduction.
(iv) The average NOX emission reduction percentage for a
NOX survey series shall be calculated according to the
following formula:
[GRAPHIC]
[TIFF OMITTED]
TR15DE05.011
Where:
ANER = the average NOX emission reduction percentage for a
NOX survey series,
n = the number of gasoline samples taken in the course of a week-long
NOX survey,
NERj = the NOX emissions reduction percentage for
gasoline sample j determined according to the appropriate methodology
at Sec. 80.45, and
S = the number of week-long NOX surveys conducted during the
NOX survey series period
(v) The covered area shall have failed a NOX survey
series if the average NOX emissions reduction percentage for the
[[Page 74569]]
series, as computed in paragraph (c)(10)(iv) of this section, is less
than the applicable Phase I or Phase II complex model per gallon
standard for NOX emissions reduction.
(11)(i) The results of each benzene content survey series conducted
in any covered area shall be determined according to the following formula:
[GRAPHIC]
[TIFF OMITTED]
TR15DE05.012
Where:
AABC = the annual average benzene content for a benzene content survey
series,
n = the number of gasoline samples taken in the course of a week-long
benzene content survey,
BCj = the benzene content for gasoline sample j taken in the
course of a week-long benzene content survey, and
S = the number of week-long benzene content surveys conducted during
the year.
(ii) If the annual average benzene content computed in paragraph
(c)(11)(i) of this section is greater than 1.000 percent by volume, the
covered area shall have failed a benzene content survey series.
(12)(i) The results of each oxygen content survey series conducted
in any covered area shall be determined according to the following formula:
[GRAPHIC]
[TIFF OMITTED]
TR15DE05.013
Where:
AAOC = the annual average oxygen content for an oxygen content survey
series,
n = the number of gasoline samples taken in the course of a week-long
oxygen content survey,
Ocj = the oxygen content for gasoline sample j taken in the
course of a week-long oxygen content survey, and
S = the number of week-long oxygen content surveys conducted during the
year.
(ii) If the annual average oxygen content computed in paragraph
(c)(12)(i) of this section is less than 2.00 percent by weight, the
covered area shall have failed an oxygen content survey series.
(13) * * *
(iii) Include procedures such that the number of samples included
in each survey or survey series (whichever is applicable) assures that:
(A) In the case of simple model surveys or survey series, the
average levels of oxygen, benzene, RVP, and aromatic hydrocarbons are
determined with a 95% confidence level, with error of less than 0.1 psi
for RVP, 0.05% for benzene (by volume), and 0.1% for oxygen (by
weight); and
(B) In the case of complex model surveys or survey series, the
average levels of oxygen, benzene, RVP, aromatic hydrocarbons, olefins,
T-50, T-90 and sulfur are determined with a 95% confidence level, with
error of less than 0.1 psi for RVP, 0.05% for benzene (by volume), 0.1%
for oxygen (by weight), 0.5% for olefins (by volume), 5 [deg]F. for T-
50 and T-90, and 10 ppm for sulfur; or an equivalent level of precision
for the complex model-determined emissions parameters; and
* * * * *
? 10. Section 80.69 is amended by removing and reserving paragraph
(a)(4), and revising paragraph (e)(2)(i)(A) and the (e)(2)(v)
introductory text to read as follows:
Sec. 80.69 Requirements for downstream oxygenate blending.
* * * * *
(e) * * *
(2) * * *
(i) * * *
(A) Prior to combining the resulting gasoline with any other
gasoline; or
* * * * *
(v) In the event the testing results for any sample indicate the
gasoline does not contain the specified type and amount of oxygenate
(within the ranges specified in Sec. 80.65(e)(2)(i)):
* * * * *
? 11. Section 80.74 is amended by:
? a. Removing and reserving paragraph (b)(2); revising paragraph
(b)(7)(ii); and adding paragraphs (b)(8) and (b)(9); and
? b. Removing and reserving paragraph (f), to read as follows:
Sec. 80.74 Recordkeeping requirements.
* * * * *
(b) * * *
(7) * * *
(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;
(8) In the case of butane blended into reformulated gasoline or
RBOB under Sec. 80.82, documentation of:
(i) The volume of butane added;
(ii) The volume of reformulated gasoline or RBOB both prior to and
subsequent to the butane blending;
(iii) The purity and properties of the butane specified in Sec.
80.82(c) and (d), as appropriate;
(iv) Compliance with the requirements of Sec. 80.82; and
(9) In the case of any imported GTAB, documents that reflect the
storage and physical movement of the GTAB from the point of importation
to the point of blending to produce reformulated gasoline.
* * * * *
? 12. Section 80.75 is amended by revising the paragraph (a) introductory
text and paragraphs (a)(2)(vii) and (a)(2)(viii)(D); and adding
paragraphs (a)(2)(ix), (a)(2)(x) and (o), to read as follows:
Sec. 80.75 Reporting requirements.
* * * * *
(a) Quarterly reports for reformulated gasoline. Any refiner or
importer that produces or imports any reformulated gasoline or RBOB,
and any oxygenate blender that produces reformulated gasoline meeting
the oxygen standard on average, shall submit quarterly reports to the
Administrator for each refinery or oxygenate blending facility at which
such reformulated gasoline or RBOB was produced and for all such
reformulated gasoline or RBOB imported by each importer. The refiner,
importer or oxygenate blender shall include notification to EPA of per-
gallon versus average election with the first quarterly reports
submitted each year.
* * * * *
(2) * * *
(vii) For any oxygenate blender, the oxygen content;
(viii) * * *
(D) The volume, properties and designation of the batch;
(ix) In the case of butane blended with reformulated gasoline or
RBOB under Sec. 80.82:
(A) Identification of the butane batch as complying with the
provisions of Sec. 80.82;
(B) Identification of the butane batch as commercial or non-
commercial grade butane;
(C) The batch number of the butane;
(D) The date of production of the gasoline produced using the
butane batch;
(E) The volume of the butane batch;
(F) The properties of the butane batch specified by the butane
supplier, or the properties specified in Sec. 80.82(c) or (d), as
appropriate;
(G) The volume of the gasoline batch subsequent to the butane
blending; and
[[Page 74570]]
(x) In the case of any imported GTAB, identification of the
gasoline as GTAB.
* * * * *
(o) Additional reporting requirements for refiners that blend
butane with reformulated gasoline or RBOB. For refiners that blend any
butane with reformulated gasoline or RBOB under Sec. 80.82, the
refiner shall submit to the Administrator, by the last day of February
of each year, a report for the refinery which includes the following
information for the previous calendar year:
(1) The total volume of butane blended with reformulated gasoline
or RBOB at the refinery, separately for reformulated gasoline and RBOB;
(2) The total volume of reformulated gasoline or RBOB produced
using butane, separately for reformulated gasoline and RBOB;
(3) A statement that each gallon of reformulated gasoline or RBOB
produced using butane met the applicable per-gallon standards under
Sec. 80.41;
(4) A statement that all butane blended with reformulated gasoline
or RBOB at the refinery is included in the volume reported in paragraph
(o)(2) of this section;
? 13. Section 80.76 is amended by revising paragraph (b) to read as follows:
Sec. 80.76 Registration of refiners, importers or oxygenate blenders.
* * * * *
(b) Any person required to register shall do so by November 1,
1994, or not later than three months in advance of the first date that
such person will produce or import reformulated gasoline or RBOB or
conventional gasoline, whichever is later.
* * * * *
? 14. Section 80.77 is amended by revising paragraphs (c), (f), (g)(3)
and (i), and removing paragraph (j) to read as follows:
Sec. 80.77 Product transfer documentation.
* * * * *
(c) The volume of gasoline or RBOB which is being transferred;
* * * * *
(f) The proper identification of the product as reformulated
gasoline or RBOB;
(g) * * *
(3) In the case of VOC-controlled reformulated gasoline that
contains ethanol, identification or the gasoline as containing ethanol.
* * * * *
(i) In the case of RBOB:
(1) The designation of the RBOB as suitable for blending with:
(i) Any-oxygenate;
(ii) Ether-only; or
(iii) Other specified oxygenate type(s) and amount(s);
(2) The oxygenate type(s) and amount(s) which the RBOB requires in
order to meet the properties claimed by the refiner or importer of the
RBOB; and
(3) Instructions that the RBOB may not be combined with any other
RBOB except other RBOB having the same requirements for oxygenate
type(s) and amount(s), or, prior to blending, with reformulated gasoline.
? 15. Section 80.78 is amended by removing and reserving paragraphs
(a)(1)(iii) and (a)(3), revising the paragraph (a)(11) introductory
text, and adding paragraph (a)(12) to read as follows:
Sec. 80.78 Controls and prohibitions on reformulated gasoline.
(a) * * *
(11) The prohibition against combining reformulated gasoline with
RBOB under paragraph (a)(7) 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:
* * * * *
(12)(i) The prohibited activities specified in paragraph (a)(1) of
this section do not apply in the case of gasoline that is used to fuel
aircraft, or racing motor vehicles or racing boats that are used only
in sanctioned racing events, provided that product transfer documents
associated with such gasoline, and any pump stand from which such
gasoline is dispensed, identify the gasoline either as conventional
gasoline that is restricted for use in aircraft, or as conventional
gasoline that is restricted for use in racing motor vehicles or racing
boats that are used only in sanctioned racing events.
(ii) A vehicle shall be considered to be a racing vehicle only if
the vehicle:
(A) Is operated in conjunction with sanctioned racing events;
(B) Exhibits racing features and modifications such that it is
incapable of safe and practical street or highway use;
(C) Is not licensed, and is not licensable, by any state for
operation on public streets or highways;
(D) Is not operated on public streets or highways; and
(E) Could not be converted to public street or highway use at a
cost that is reasonable compared to the value of the vehicle.
* * * * *
? 16. Section 80.81 is amended by:
? a. Revising paragraphs (c)(2), (c)(5), (c)(6) and (c)(10); and removing
and reserving paragraph (c)(4); and
? b. Revising paragraph (g)(1)(vi) and removing paragraph (g)(1)(vii), to
read as follows:
Sec. 80.81 Enforcement exemptions for California gasoline.
* * * * *
(c) * * *
(2) The designation of gasoline requirements contained in Sec.
80.65(d);
* * * * *
(5) The annual compliance audit requirements contained in Sec.
80.65(h);
(6) The downstream oxygenate blending requirements contained in
Sec. 80.69;
* * * * *
(10) The compliance attest engagement requirements contained in
subpart F of this part.
* * * * *
(g)(1) * * *
(vi) The identification of the gasoline as California gasoline.
* * * * *
? 17. Section 80.82 is revised to read as follows:
Sec. 80.82 Butane blending.
A refiner for any refinery that produces gasoline by blending
butane with conventional gasoline or reformulated gasoline or RBOB may
meet the sampling and testing requirements of subparts D and E of this
part as follows:
(a) Any refinery that blends butane for which the refinery has
documents from the butane supplier which demonstrate that the butane is
commercial grade, as defined in paragraph (c) of this section, may
demonstrate compliance with the standards in subparts D and E of this
part based on the properties specified in paragraph (c) of this
section, or the properties specified by the butane supplier.
(b)(1) Any refiner that blends butane for which the refiner has
documents from the butane supplier which demonstrate that the butane is
non-commercial grade, as defined in paragraph (d) of this section, may
demonstrate compliance with the standards in subparts D and E of this
part based on the properties specified in paragraph (d) of this
section, or the properties specified by the butane supplier, provided
that the refinery:
(i) Conducts a quality assurance program of sampling and testing
the butane obtained from each separate butane supplier which
demonstrates that the butane has the properties
[[Page 74571]]
specified in paragraph (d) of this section; and
(ii) The frequency of sampling and testing for the butane received
from each butane supplier must be one sample for every 500,000 gallons
of butane received, or one sample every three months, whichever is more
frequent.
(2) Where test results indicate the butane does not meet the
requirements in paragraph (b)(1) of this section, the refiner may:
(i) Blend the butane with conventional gasoline, or reformulated
gasoline that has been downgraded to conventional gasoline, provided
that the equivalent emissions performance of the butane batch, as
determined using the provisions in Sec. 80.101(g)(3), meets the
refinery's standards under Sec. 80.101;
(ii) Blend the butane with reformulated gasoline or RBOB, provided
that the final batch of butane blended with reformulated gasoline or
RBOB meets the per-gallon standards in Sec. 80.41, as determined using
the test methods in Sec. 80.46.
(c) Commercial grade butane is defined as butane for which test
results demonstrate that the butane is 95% pure and has the following
properties:
olefins < =1.0 vol%
aromatics < =2.0 vol%
benzene < =0.03 vol%
sulfur < =140 ppm until December 31, 2003; < =120 ppm in 2004; < =30
ppm beginning January 1, 2005 and thereafter
(d) Non-commercial grade butane is defined as butane for which
test results demonstrate the butane has the following properties:
olefins < =10.0 vol%
aromatics < =2.0 vol%
benzene < =0.03 vol%
sulfur < =140 ppm until December 31, 2003; < =120 ppm in 2004; < =30
ppm beginning January 1, 2005 and thereafter
(e)(1) When butane is blended with conventional gasoline under this
section during the period May 1 through September 15, the refiner shall
demonstrate through sampling and testing, using the test method for
Reid vapor pressure in Sec. 80.46, that each batch of conventional
gasoline blended with butane meets the volatility standards specified
in Sec. 80.27.
(2) Butane may not be blended with any reformulated gasoline or
RBOB during the period April 1 through September 30, or with any
reformulated gasoline or RBOB designated as VOC-controlled, under this
section.
(f) When butane is blended with conventional gasoline or
reformulated gasoline or RBOB under this section, product transfer
documents which accompany the gasoline blended with butane must comply
with all of the requirements of Sec. 80.77 or Sec. 80.106, as
appropriate.
(g) Butane blended with reformulated gasoline or RBOB or
conventional gasoline during a period of up to one month may be
included in a single batch for purposes of reporting to EPA, however,
commercial grade butane and non-commercial grade butane must be
reported as separate batches.
(h) Where a refiner chooses to include butane blended with gasoline
in the refinery's annual average compliance calculations:
(1) In the case of butane blended with conventional gasoline, the
equivalent emissions performance of the butane must be calculated in
accordance with the provisions of Sec. 80.101(g)(3). For purposes of
this paragraph (i)(1), the property values in Sec. 80.82(c) or (d), as
appropriate, may be used;
(2) In the case of butane blended with reformulated gasoline or
RBOB, compliance with the reformulated gasoline standards may not be
demonstrated using the provisions of this section;
(3) All butane blended into gasoline during the annual averaging
period must be included in annual average compliance calculations for
the refinery.
? 18. Section 80.83 is revised to read as follows:
Sec. 80.83 Gasoline treated as blendstock.
An importer may treat imported gasoline (as defined in Sec.
80.2(c)) as blendstock (Gasoline Treated as Blendstock, or GTAB) and
exclude the GTAB from its importer compliance calculations under Sec.
80.65(c) for reformulated gasoline or under Sec. 80.101(d) for
conventional gasoline, provided the importer meets the requirements
specified in this section.
(a) GTAB must be used as a blendstock in a refinery operation to
produce gasoline.
(b) GTAB must be included in the compliance calculations for
gasoline produced at a refinery operated by the same person or entity
that is the importer (the ``GTAB importer-refiner'').
(c) The GTAB importer-refiner may not transfer title to GTAB to
another person until the GTAB has been used to produce gasoline and all
refinery standards and requirements have been met for the gasoline produced.
(d) The refinery at which GTAB is used to produce gasoline must be
physically located at the same terminal at which the GTAB is first
discharged upon arrival in the United States (the import facility), or
at a facility to which the GTAB is directly transported from the import
facility.
(e)(1) GTAB must be completely segregated from any previously
certified gasoline, whether conventional or RFG or RBOB, and including
any gasoline tank bottoms, prior to the point of blending, sampling and
testing, in the refinery operation, except that:
(i) GTAB may be placed in a storage tank that contains previously
certified gasoline provided that the blending is performed in that
storage tank, and:
(A) The previously certified gasoline has the same designations
under Sec. 80.65(d) as the gasoline which will be produced using the
GTAB, and the volume and properties of the gasoline produced using GTAB
are determined in a manner that excludes the volume and properties of
the previously certified gasoline; or
(B) In the case of GTAB used to produce reformulated gasoline or
RBOB, the requirements in Sec. 80.65(i) are met, or in the case of
GTAB used to produce conventional gasoline, the requirements in Sec.
80.101(g)(9) are met.
(ii) [Reserved]
(2) GTAB may be placed in a storage tank that contains other GTAB
imported by that importer.
(f) Each year that GTAB is used to produce gasoline, the GTAB
importer-refiner must determine an adjusted baseline for the refinery
where the GTAB is used to produce gasoline that would be subject to the
conventional gasoline standards under Sec. 80.101(b), and prior to
1998, the reformulated gasoline standards under Sec. 80.41(h)(2)(i),
for all gasoline produced at that refinery for that year.
(1) The following formulas must be used to calculate the adjusted
refinery baseline where GTAB is used to produce conventional gasoline:
(i) If (Va - VGTAB) > V1990 ; then
[GRAPHIC]
[TIFF OMITTED]
TR15DE05.014
[[Page 74572]]
(ii) If (Va - VGTAB) < V1990 ; then
[GRAPHIC]
[TIFF OMITTED]
TR15DE05.015
(2) The following formula must be used to calculate the adjusted
refinery baseline where GTAB is used to produce reformulated gasoline
prior to January 1, 1998:
[GRAPHIC]
[TIFF OMITTED]
TR15DE05.016
(3) The following definitions apply to the terms in the equations
in paragraph (e)(1) and (e)(2) of this section:
VGTAB = VRGTAB + VCGTAB
ABi = Adjusted baseline for parameter or emissions performance i.
V1990 = 1990 baseline volume for the refinery.
Va = Volume of reformulated gasoline, conventional gasoline
and RBOB produced at the refinery during the year (averaging period) in
question, including the volume of gasoline produced using GTAB.
VRFG = Volume of reformulated gasoline and RBOB produced at
the refinery during the year in question.
VConv = Volume of conventional gasoline produced at the
refinery during the year in question.
VRGTAB = Volume of GATB used to produce reformulated
gasoline at the refinery during the year in question.
VCGTAB = Volume of GTAB used to produce conventional
gasoline at the refinery during the year in question.
RBi = 1990 refinery baseline for parameter or emissions
performance i.
IBi = Baseline for parameter or emissions performance i that
applies to the GTAB importer-refiner in its importer capacity.
SBi = Statutory baseline for parameter or emissions performance i.
(g)(1) The GTAB importer-refiner must complete all requirements for
the GTAB at the time it is imported as if the GTAB were imported
gasoline, including sampling and testing, independent sampling and
testing for GTAB used to produce reformulated gasoline, recordkeeping
and reporting.
(2) The volume and properties of GTAB that has been combined with
other GTAB may be determined by subtracting the volume and properties
of the GTAB in the tank prior to receipt of the new product, from the
volume and properties of the GTAB in the tank subsequent to receipt of
the new product.
(3) Any GTAB batch that is used in whole or in part to produce
reformulated gasoline must be treated as imported reformulated gasoline
for purposes of sampling and testing, and reporting, under paragraph
(g)(1) of this section; except that the sampling and testing may be
based on vessel composite samples without regard to whether the
gasoline in individual ship compartments separately meets the
reformulated gasoline downstream standards.
(4) Any reports to EPA for imported GTAB must identify the GTAB as such.
(5) Any GTAB that ultimately is not used to produce gasoline must
be treated as newly imported gasoline, for which all required sampling
and testing, recordkeeping and reporting must be accomplished, and the
gasoline must be included in the GTAB importer-refiner's importer
compliance calculations for the averaging period that includes the date
this sampling and testing occurs.
Subpart E--[Amended]
? 19. Section 80.101 is amended by:
? a. Revising the heading in paragraph (g)(9), and paragraphs (g)(9)(i)
through (g)(9)(iv); and
? b. Adding paragraph (i)(3), to read as follows:
Sec. 80.101 Standards applicable to refiners and importers.
* * * * *
(g) * * *
(9) Exclusion of previously certified gasoline. (i) Any refiner who
uses previously certified reformulated or conventional gasoline or RBOB
to produce conventional gasoline at a refinery, must exclude the
previously certified gasoline 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 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 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) Determine the exhaust toxics and NOX emissions
performance using the summer or winter complex model as appropriate;
(C) Include the volume and emissions performance of the previously
certified gasoline 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 NOX.
(iv) For each batch of conventional gasoline produced at the
refinery using previously certified gasoline, the refiner must
determine the volume and properties, and exhaust toxics and
NOX emissions performance, and include each batch in the
refinery's compliance calculations for exhaust toxics and
NOX without regard to the presence of previously certified
gasoline in the batch.
* * * * *
(i) * * *
(3) An importer who imports conventional gasoline into the United
States by truck may meet the sampling and testing requirements under
paragraph (i)(1) of this section as follows:
(i)(A) The importer must demonstrate that the imported gasoline
meets the applicable conventional gasoline
[[Page 74573]]
standards, through test results of samples of the gasoline contained in
the storage tank from which the trucks used to transport gasoline into
the United States are loaded.
(B) The frequency of this sampling and testing must be subsequent
to each receipt of gasoline into the storage tank, or immediately prior
to each transfer of gasoline to the importer's truck.
(C) The testing must be for each applicable parameter specified
under Sec. 80.65(e)(2)(i), using the test methods specified under
Sec. 80.46.
(D) The importer must obtain a copy of the terminal test results
that reflects the quality of each truck load of gasoline that is
imported into the United States.
(ii)(A) The importer must conduct separate programs of periodic
quality assurance sampling and testing of the gasoline obtained from
each truck-loading terminal, to ensure the accuracy of the terminal
test results.
(B) The quality assurance samples must be obtained from the truck-
loading terminal by the importer, and terminal operator may not know in
advance when samples are to be collected.
(C) The importer must test each sample (or use a laboratory that is
independent under Sec. 80.82(b)(2) to test the sample) for the
parameters specified under Sec. 80.65(e)(2)(i) using the test methods
specified under Sec. 80.46, and the results must correlate with the
terminal's test results within the ranges specified under Sec.
80.65(e)(2)(i).
(D) The frequency of quality assurance sampling and testing must be
at least one sample for each fifty of an importer's trucks that are
loaded at a terminal, or one sample per month, whichever is more frequent.
(iii) The requirements of paragraph (i)(3)(ii) of this section are
satisfied if the sampling and testing required under paragraph
(i)(3)(i) is conducted by a laboratory that is an independent
laboratory under the criteria of Sec. 80.82(b)(2).
(iv) The importer must treat each truck load of imported gasoline
as a separate batch for purposes of assigning batch numbers under Sec.
80.101(i), recordkeeping under Sec. 80.104, and reporting under Sec.
80.105.
(v) EPA inspectors or auditors, and auditors conducting attest
engagements under subpart F, must be given full and immediate access to
the truck-loading terminal and any laboratory at which samples of
gasoline collected at the terminal are analyzed, and be allowed to
conduct inspections, review records, collect gasoline samples, and
perform audits. These inspections or audits may be either announced or
unannounced.
(vi) In the event the requirements specified in paragraphs
(i)(3)(i) through (v) of this section are not met, in whole or in part,
the importer shall immediately lose the option of importing gasoline
under the terms of this paragraph (i)(3).
* * * * *
? 20. Section 80.104 is amended by adding and reserving paragraph
(a)(2)(xiii), and adding paragraphs (a)(2)(xiv) and (a)(2)(xv) to read
as follows:
Sec. 80.104 Recordkeeping requirements.
* * * * *
(a) * * *
(2) * * *
(xiv) In the case of butane blended into conventional gasoline
under Sec. 80.82, documentation of:
(A) The volume of the butane added;
(B) The volume of the gasoline prior to and subsequent to the
butane blending;
(C) The purity and properties of the butane under Sec. 80.82(c)
and (d), as appropriate; and
(D) Compliance with the requirements of Sec. 80.82.
(xv) In the case of any imported GTAB, documents that reflect the
physical movement of the GTAB from the point of importation to the
point of blending to produce gasoline.
* * * * *
? 21. Section 80.105 is amended by:
? a. Revising paragraphs (a)(5)(iv), (a)(5)(v), and (a)(5)(vi)(D); and
adding paragraphs (a)(5)(vii), (a)(5)(viii) and (a)(7); and
? b. Revising paragraph (c) to read as follows:
Sec. 80.105 Reporting requirements.
(a) * * *
(5) * * *
(iv) The grade of gasoline produced (i.e., premium, mid-grade, or
regular);
(v) The properties, pursuant to Sec. 80.101(i);
(vi) * * *
(D) The volume, properties and designation of the batch;
(vii) In the case of butane blended with conventional gasoline
under Sec. 80.82:
(A) Identification of the butane batch as complying with the
provisions of Sec. 80.82;
(B) Identification of the butane batch as commercial or non-
commercial grade butane;
(C) The batch number of the butane;
(D) The date of production of the gasoline produced using the butane;
(E) The volume of the butane batch;
(F) The properties of the butane batch specified by the butane
supplier, or the properties specified in Sec. 80.82(c) or (d), as
appropriate.
(G) Where butane is blended with conventional gasoline during the
period May 1 through September 15, the Reid vapor pressure, as measured
using the appropriate test method in Sec. 80.46; and
(viii) In the case of any imported GTAB, identification of the
gasoline as GTAB.
* * * * *
(7) For refiners that blend any butane with conventional gasoline
under Sec. 80.82, the report required under paragraph (a) of this
section must include the following information for the annual averaging
period:
(i) The total volume of butane blended with conventional gasoline;
(ii) The total volume of conventional gasoline produced using butane;
(iii) A statement that the gasoline produced using butane meets all
applicable downstream standard that apply to conventional gasoline
under Subpart E; and
(iv) A statement that all butane blended with conventional gasoline
at the refinery is included in the volume under paragraph (a)(7)(i) of
this section, or a statement that all butane blended with conventional
gasoline is included in the refinery's annual average compliance
calculations under Sec. 80.101.
* * * * *
(c) For each averaging period, each refiner for each refinery and
importer shall cause to be submitted to the Administrator of EPA, by
May 31 of each year, a report in accordance with the requirements for
the Attest Engagements of Sec. 80.125 through Sec. 80.131.
* * * * *
? 22. Section 80.106 is amended by revising paragraphs (a)(1)(v) and
(a)(1)(vi), and removing paragraph (a)(1)(vii) to read as follows:
Sec. 80.106 Product transfer documents.
(a)(1) * * *
(v) The date of the transfer; and
(vi) The following statement: ``This product does not meet the
requirements for reformulated gasoline, and may not be used in any
reformulated gasoline covered area.''
* * * * *
Subpart F--[Amended]
? 23. Section 80.125 is amended by adding paragraphs (a)(1), (a)(2) and
(a)(3) to read as follows:
Sec. 80.125 Attest engagements.
(a) * * *
(1) In the case of any refiner or importer of reformulated or
[[Page 74574]]
conventional gasoline, the attest procedures in Sec. 80.133 shall be
completed, or, prior to the 2006 reporting period, the attest
procedures in Sec. 80.128 may be completed as an alternative to the
attest procedures in Sec. 80.133.
(2) In the case of any oxygenate blender who meets the oxygen
standard on average, the attest procedures in Sec. 80.134 shall be
completed, or, prior to the 2006 reporting period, the attest
procedures in Sec. 80.129 may be completed as an alternative to the
Sec. 80.134 attest procedures.
(3) In the case of any importer who imports any gasoline classified
as GTAB under Sec. 80.83, any importer who imports conventional
gasoline by truck under Sec. 80.101(i), any refiner who uses
previously certified gasoline under Sec. Sec. 80.65(i) or
80.101(g)(9), or any refiner who blends butane under Sec.
80.101(i)(4), the attest procedures in Sec. 80.131 shall be completed.
* * * * *
? 24. Section 80.126 is amended by revising paragraphs (e) and (f), and
adding paragraphs (h) through (l), to read as follows:
Sec. 80.126 Definitions.
* * * * *
(e) Product transfer documents means copies of documents
represented by the refiner/importer/oxygenate blender as having been
provided to the transferee, and that reflect the transfer of ownership
or physical custody of gasoline or blendstock (e.g., invoices,
receipts, bills of lading, manifests, and/or pipeline tickets).
(f) Tender means the transfer of ownership or physical custody of a
volume of gasoline or other petroleum product all of which has the same
identification (reformulated gasoline, conventional gasoline, RBOB, and
other non-finished-gasoline petroleum products), and characteristics
(time and place of use restrictions for reformulated gasoline and RBOB).
* * * * *
(h) Attestor means the CPA or CIA performing the agreed-upon
procedures engagement under this subpart.
(i) Foot (or crossfoot) means to add a series of numbers, generally
in columns (or rows), to a total amount. When applying the attestation
procedures in this subpart F, the attestor may foot to subtotals on a
sample basis in those instances where subtotals (e.g., page totals)
exist. In such instances, the total should be footed from the subtotals
and the subtotals should be footed on a test basis using no less than
25% of the subtotals.
(j) Laboratory Analysis means the original test result for each
analysis that was used to determine a product's properties. For
laboratories using test methods that must be correlated to the standard
test method, the correlation factors and results shall be included as
part of the laboratory analysis. For refineries or importers that
produce reformulated gasoline or RBOB and use the 100% independent lab
testing, the laboratory analysis shall consist of the results reported
to the refinery or importer by the independent lab. Where assumed
properties used (e.g., for butane) the assumed properties may serve as
the test results.
(k) Non-finished-gasoline petroleum products means liquid petroleum
products that have boiling ranges greater than 75 degrees Fahrenheit,
but less than 450 degrees Fahrenheit, as per ASTM D 86 or equivalent.
(l) Reporting period means the time period relating to the reports
filed with EPA by the refiner, importer, or oxygenate blender, and
generally is the calendar year.
? 25. Section 80.128 is amended by revising the heading and introductory
text; revising paragraphs (e)(2), (e)(4) and (e)(5); and removing
paragraph (e)(6) to read as follows:
Sec. 80.128 Alternative agreed upon procedures for refiners and importers.
Prior to the attest report for the 2006 reporting period, the
following minimum attest procedures may be carried out for a refinery
or importer, in lieu of the attest procedures specified in Sec. 80.133.
* * * * *
(e) * * *
(2) Determine that the requisite contract was in place with the
downstream blender designating the required blending procedures, or
that the refiner or importer accounted for the RBOB using the
assumptions in Sec. 80.69(a)(8) in the case of RBOB designated as
``any oxygenates'' or ``ether only'';
* * * * *
(4) Trace back to the batch or batches in which the RBOB was
produced or imported. Obtain the refiner's or importer's internal lab
analysis for each batch and agree the consistency of the type and
volume of oxygenate required to be added to the RBOB with that
indicated in the applicable tender's product transfer documents; and
(5) Agree the sampling and testing frequency of the refiner's or
importer's downstream oxygenated blender quality assurance program with
the sampling and testing rates as required in Sec. 80.69(a)(7).
* * * * *
? 26. Section 80.129 is amended by revising the heading and introductory
text; revising paragraphs (a), (d)(3)(iii) and (d)(3)(iv), and removing
paragraph (d)(3)(v) to read as follows:
Sec. 80.129 Alternative agreed upon procedures for oxygenate blenders.
Prior to the attest report for the 2006 reporting period, the
following minimum attest procedures may be carried out for an oxygenate
blending facility that is subject to the requirements of this subpart
F, in lieu of the attest procedures specified in Sec. 80.134:
(a) Read the oxygenate blender's reports filed with EPA for the
previous year as required by Sec. 80.75.
* * * * *
(d) * * *
(3) * * *
(iii) Recalculate the actual oxygen content based on the volumes
blended and agree to the report to EPA on oxygen; and
(iv) Review the time and place designations in the product transfer
documents prepared for the batch by the blender, for consistency with
the time and place designations in the product transfer documents for
the RBOB (e.g., VOC controlled or non-VOC controlled, VOC region for
VOC controlled, and simple or complex model).
* * * * *
? 27. Section 80.131 is revised to read as follows:
Sec. 80.131 Agreed upon procedures for GTAB, certain conventional
gasoline imported by truck, previously certified gasoline used to
produce gasoline, and butane blenders.
(a) Attest procedures for GTAB. The following are the attest
procedures to be carried out in the case of an importer who imports
gasoline classified as blendstock (or ``GTAB'') under the terms of
Sec. 80.83:
(1) Obtain a listing of all GTAB volumes imported for the reporting
period. Agree the total volume of GTAB from the listing to the
inventory reconciliation analysis under Sec. 80.133, or agree to
alternative documents if the inventory reconciliation analysis is not
sufficient.
(2) Obtain a listing of all GTAB batches reported to EPA by the
importer. Agree the total volume of GTAB from the listing to the GTAB
volumes reported to EPA. Note that the EPA report includes a notation
that the batch is not included in the compliance calculations because
the imported
[[Page 74575]]
product is GTAB. Also, agree these volumes to the Import Summary
received from the U.S. Customs Service.
(3) Select a sample, in accordance with the guidelines in Sec.
80.127, from the listing of GTAB batches obtained in paragraph (a)(2)
of this section, and for each GTAB batch selected perform the following:
(i) Trace the GTAB batch to the tank activity records. From the
tank activity records, determine the volumes of conventional gasoline
and of RFG produced. Agree the volumes from the tank activity records
to the batch volume reported to the EPA as reformulated or conventional
gasoline.
(ii) Agree the location of the refinery represented by the tank
activity records obtained in paragraph (a)(3)(i) of this section for
the gasoline produced from GTAB, to the location that the GTAB arrived
in the U.S. or at a facility to which GTAB is directly transported from
the import facility using records representing location (e.g., U.S.
Customs Service entry records). Using product transfer records, trace
volumes transported from the import facility directly to the refinery
as applicable.
(iii) Obtain tank activity records for all batches of GTAB received
and blended. Using the tank activity records, determine whether the
GTAB was received into an empty tank, or into a tank containing other
GTAB imported by that importer or finished gasoline of the same
category as the gasoline that will be produced using the GTAB or into a
tank containing blendstock.
(iv) Using the tank activity records obtained under paragraph
(a)(3)(iii) of this section, determine the volume of any tank bottom
(beginning tank inventory) that is previously certified gasoline before
GTAB is added to the tank. Using lab reports, batch reports, or product
transfer documents, determine the properties of the tank bottom.
(v) Determine whether the properties and volume of gasoline
produced using GTAB were determined in a manner that excludes the
volume and properties of any gasoline that previously has been included
in any refiners or importers compliance calculations, as follows:
(A) Note documented tank mixing procedures.
(B) Determine the volume and properties of the gasoline contained
in the storage tank after blending is complete. Mathematically subtract
the volume and properties of the previously certified gasoline to
determine the volume and properties of the GTAB plus blendstock added.
Agree the volume and properties of the GTAB plus blendstock added to
the volume reported to EPA as a batch of gasoline produced; or
(C) In the alternative, using the tank activity records, note that
only GTAB and blending components were combined, and that no gasoline
was added to the tank. Agree the volumes and properties of the
shipments from the tank after the GTAB and blendstock are added,
blended, and sampled and tested, to the volumes and properties reported
to the EPA by the refiner.
(vi) Obtain the importer's laboratory analysis for each batch of
GTAB selected, and agree the properties listed in the corresponding
batch report submitted to the EPA, to the laboratory analysis.
(b) Attest procedures for certain truck imports. The following are
the attest procedures to be carried out in the case of an importer who
imports conventional gasoline into the United States by truck using the
sampling and testing option in Sec. 80.101(i)(3) (``Sec. 80.101(i)(3)
truck imports'').
(1) Obtain a listing of all volumes of Sec. 80.101(i)(3) truck
imports for the reporting period. Agree the total volume of Sec.
80.101(i)(3) truck imports from the listing to the inventory
reconciliation analysis under Sec. 80.132.
(2) Obtain a listing of all Sec. 80.101(i)(3) truck import batches
reported to EPA by the importer. Agree the total volume of Sec.
80.101(i)(3) truck imports from the listing to the volume of Sec.
80.101(i)(3) truck imports reported to EPA. Also, agree these totals to
the Import Summary received from the U.S. Customs Service.
(3) Select a sample, in accordance with the guidelines in Sec.
80.127, from the listing obtained in paragraph (b)(2) of this section,
and for each Sec. 80.101(i)(3) truck import batch selected perform the
following:
(i) Obtain the copy of the terminal test results for the batch,
under Sec. 80.101(i)(3)(iii)(A), and determine that the sample was
analyzed using the test methods specified in Sec. 80.46, and agree the
terminal test results to the batch properties reported to EPA; and
(ii) Obtain tank activity records for the terminal storage tank
showing receipts, discharges, and sampling, and determine that the
sample under paragraph (b)(3)(i) of this section was collected
subsequent to the most recent receipt into the storage tank.
(4) Obtain listings for each terminal where Sec. 80.101(i)(3)
truck import gasoline was loaded, of all quality assurance samples
collected by the importer, and for each terminal select a sample in
accordance with the guidelines in Sec. 80.127 from the listing. For
each quality assurance sample selected perform the following:
(i) Determine that the sample was analyzed by the importer or by an
independent laboratory, and that the analysis was performed using the
test methods specified in Sec. 80.46;
(ii) Obtain the terminal's test results that correspond in time to
the time the quality assurance sample was collected, and agree the
terminal's test results with the quality assurance test results; and
(iii) Determine that the quality assurance sample was collected
within the frequency specified in Sec. 80.101(i)(3)(iv)(D).
(c) Attest procedures for previously certified gasoline. The
following are the attest procedures to be carried out in the case of a
refiner who uses previously certified gasoline under the requirements
of Sec. Sec. 80.65(i) and 80.101(g)(9).
(1) Obtain a listing of all batches of previously certified
gasoline used under the requirements of Sec. 80.65(i) which were
received at the refinery during the reporting period. Agree the total
volume of such previously certified gasoline from the listing to the
inventory reconciliation analysis under Sec. 80.133, or agree to
alternative documents if the inventory reconciliation analysis is not
sufficient.
(2) 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 in paragraph (c)(1) of this section to the volume of
previously certified gasoline reported to EPA.
(3) Select a sample, in accordance with the guidelines in Sec.
80.127, from the listing obtained in paragraph (c)(2) of this section,
and for each previously certified gasoline batch selected perform the
following:
(i) 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.
(ii) 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.
(iii) 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
[[Page 74576]]
conventional gasoline, and designations regarding VOC control).
(d) Attest procedures for butane blenders. The following are the
attest procedures to be carried out by a refiner who blends butane
under Sec. 80.82.
(1) Obtain a listing of all butane batches received at the refinery
during the reporting period.
(2) Obtain a listing of all butane batches reported to EPA by the
refiner for the reporting period. Agree the total volume of butane from
the receipt listing to the volume of butane reported to EPA.
(3) Select a sample, in accordance with the guidelines in Sec.
80.127, from the listing of butane batches reported to EPA, and for
each butane batch selected perform the following:
(i) Trace the butane included in the batch to the documents
provided to the refiner by the butane supplier for the butane.
Determine, and report as a finding, whether these documents establish
the butane was commercial grade, non-commercial grade, or neither
commercial nor non-commercial grade as defined in Sec. 80.82.
(ii) In the case of non-commercial grade butane, obtain the
refiner's sampling and testing results for butane, and confirm that the
frequency of the sampling and testing was consistent with the
requirements in Sec. 80.82.
? 28. Section 80.133 is added to subpart F to read as follows:
Sec. 80.133 Agreed-upon procedures for refiners and importers.
The following are the minimum attest procedures that shall be
carried out for each refinery and importer. Agreed upon procedures may
vary from the procedures stated in this section due to the nature of
the refiner's or importer's business or records, provided that any
refiner or importer desiring to use modified procedures obtains prior
approval from EPA.
(a) EPA reports. (1) Obtain and read a copy of the refinery's or
importer's reports (except for batch reports) filed with the EPA as
required by Sec. Sec. 80.75 and 80.105 for the reporting period.
(2) In the case of a refiner's report to EPA that represents
aggregate calculations for more than one refinery, obtain the refinery-
specific volume and property information that was used by the refiner
to prepare the aggregate report. Foot and crossfoot the refinery-
specific totals and agree to the values in the aggregate report. The
procedures in paragraphs (b) through (m) of this section then are
performed separately for each refinery.
(3) Obtain a written representation from a company representative
that the report copies are complete and accurate copies of the reports
filed with the EPA.
(4) Identify, and report as a finding, the name of the commercial
computer program used by the refiner or importer to track the data
required by the regulations in this part, if any.
(b) Inventory reconciliation analysis. Obtain an inventory
reconciliation analysis for the refinery or importer for the reporting
period by product type (i.e., reformulated gasoline, RBOB, conventional
gasoline, and non-finished-gasoline petroleum products), and perform
the following:
(1) Foot and crossfoot the volume totals reflected in the analysis;
and
(2) Agree the beginning and ending inventory amounts in the
analysis to the refinery's or importer's inventory records. If the
analysis shows no production of conventional gasoline or if the
refinery or importer represents under paragraph (l) of this section
that it has a baseline less stringent or equal to the statutory
baseline, the analysis may exclude non-finished-gasoline petroleum products.
(3) Report as a finding the volume totals for each product type.
(c) Listing of tenders. For each product type other than non-
finished gasoline petroleum products (i.e., reformulated gasoline,
RBOB, conventional gasoline), obtain a separate listing of all tenders
from the refinery or importer for the reporting period. Each listing
should provide for each tender the volume shipped and other information
as needed to distinguish tenders. Perform the following:
(1) Foot to the volume totals per the listings; and
(2) For each product type listed in the inventory reconciliation
analysis obtained in paragraph (b) of this section, agree the volume
total on the listing to the tender volume total in the inventory
reconciliation analysis.
(d) Listing of batches. For each product type other than non-
finished gasoline petroleum products (i.e., reformulated gasoline,
RBOB, and conventional gasoline), obtain separate listings of all
batches reported to the EPA and perform the following:
(1) Foot to the volume totals per the listings; and
(2) Agree the total volumes in the listings to the production
volume in the inventory reconciliation analysis obtained in paragraph
(b) of this section.
(e) Reformulated gasoline tenders. Select a sample, in accordance
with the guidelines in Sec. 80.127, from the listing of reformulated
gasoline tenders obtained in paragraph (c) of this section, and for
each tender selected perform the following:
(1) Obtain product transfer documents associated with the tender
and agree the volume on the tender listing to the volume on the Product
transfer documents; and
(2) Note whether the product transfer documents evidencing the date
and location of the tender and the compliance model designations for
the tender (VOC-controlled for Region 1 or 2, non VOC-controlled, and
simple or complex model certified).
(f) Reformulated gasoline batches. Select a sample, in accordance
with the guidelines in Sec. 80.127, from the listing of reformulated
gasoline batches obtained in paragraph (d) of this section, and for
each batch selected perform the following:
(1) Agree the volume shown on the listing, to the volume listed in
the corresponding batch report submitted to EPA; and
(2) Obtain the refinery's or importer's laboratory analysis and
agree the properties listed in the corresponding batch report submitted
to EPA, to the properties listed in the laboratory analysis.
(g) RBOB tenders. Select a sample, in accordance with the
guidelines in Sec. 80.127, from the listing of RBOB tenders obtained
in paragraph (c) of this section, and for each tender selected perform
the following:
(1) Obtain product transfer documents associated with the tender
and agree the volume on the tender listing to the volume on the product
transfer documents; and
(2) Inspect the product transfer documents evidencing the type and
amount of oxygenate to be added to the RBOB.
(h) RBOB batches. Select a sample, in accordance with the
guidelines in Sec. 80.127, from the listing of RBOB batches obtained
in paragraph (d) of this section, and for each batch selected perform
the following:
(1) Obtain from the refiner or importer the oxygenate type and
volume, and oxygen volume required to be hand blended with the RBOB, in
accordance with Sec. 80.69(a)(2) and (8);
(2) Agree the volume shown on the listing, as adjusted to reflect
the oxygenate volume determined under paragraph (h)(1) of this section,
to the volume listed in the corresponding batch report submitted to
EPA; and
(3) Obtain the refinery's or importer's laboratory analysis of the
RBOB hand blend and agree:
(i) The oxygenate type and oxygen amount determined under paragraph
(h)(1) of this section, to the tested oxygenate type and oxygen amount
listed in the laboratory analysis within
[[Page 74577]]
the acceptable ranges set forth at Sec. 80.65(e)(2)(i); and
(ii) The properties listed in the corresponding batch report
submitted to EPA to the properties listed in the laboratory analysis.
(4)(i) Categorize the RBOB batch reports into two groups:
(A) RBOB Batch reports showing:
(1) ``RBOB-any oxygenate'' with ethanol as oxygenate and an oxygen
content of 2.0 weight percent; and
(2) ``RBOB-ethers only'' with only MTBE as oxygenate and an oxygen
content of 2.0 weight percent; and
(B) All other RBOB batch reports.
(ii) Perform the following procedures for each batch report
included in paragraph (h)(4)(i)(B) of this section:
(A) Obtain and inspect a copy of the executed contract with the
downstream oxygenate blender (or with an intermediate owner), and
confirm that the contract:
(1) Was in effect at the time of the corresponding RBOB transfer;
and
(2) Allowed the company to sample and test the reformulated
gasoline made by the blender.
(B) Obtain a listing of RBOB blended by downstream oxygenate
blenders and the refinery's or importer's oversight test results, and
select a representative sample, in accordance with the guidelines in
Sec. 80.127, from the listing of test results and for each test
selected perform the following:
(1) Obtain the laboratory analysis for the batch, and agree the
type of oxygenate used and the oxygenate content appearing in the
laboratory analysis to the instructions stated on the product transfer
documents corresponding to a RBOB receipt immediately preceding the
laboratory analysis and used in producing the reformulated gasoline
batch selected within the acceptable ranges set forth at Sec.
80.65(e)(2)(i);
(2) Calculate the frequency of sampling and testing or the volume
blended between the test selected and the next test; and
(3) Agree the frequency of sampling and testing or the volume
blended between the test selected and the next test to the sampling and
testing frequency rates stated in Sec. 80.69(a)(7).
(i) Conventional gasoline and conventional gasoline blendstock
tenders. Select a sample, in accordance with the guidelines in Sec.
80.127, from the listing of the tenders of conventional gasoline and
conventional gasoline blendstock that becomes gasoline through the
addition of oxygenate only, and for each tender selected perform the
following:
(1) Obtain product transfer documents associated with the tender
and agree the volume on the tender listing to the volume on the product
transfer documents; and
(2) Inspect the product transfer documents evidencing that the
information required in Sec. 80.106(a)(1)(vii) is included.
(j) Conventional gasoline batches. Select a sample, in accordance
with the guidelines in Sec. 80.127, from the conventional gasoline
batch listing obtained in paragraph (d) of this section, and for each
batch selected perform the following:
(1) Agree the volume shown on the listing, to the volume listed in
the corresponding batch report submitted to EPA; and
(2) Obtain the refinery's or importer's laboratory analysis and
agree the properties listed in the corresponding batch report submitted
to EPA, to the properties listed in the laboratory analysis.
(k) Conventional gasoline oxygenate blending. Obtain a listing of
each downstream oxygenate blending facility and its blender, as
represented by the refiner/importer, as adding oxygenate used in the
compliance calculations for the refinery or importer, or a written
representation from the refiner for the refinery or importer that it
has not used any downstream oxygenate blending in its conventional
gasoline compliance calculations.
(1) For each downstream oxygenate blender facility, obtain a
listing from the refiner or importer of the batches of oxygenate
included in its compliance calculations added by the downstream
oxygenate blender and foot to the total volume of batches per the listing;
(2) Obtain a listing from the downstream oxygenate blender of the
oxygenate blended with conventional gasoline or sub-octane blendstock
that was produced or imported by the refinery or importer and perform
the following:
(i) Foot to the total volume of the oxygenate batches per the
listing; and
(ii) Agree the total volumes in the listing obtained from the
downstream oxygenate blender, to the listing obtained from the refiner
or importer in paragraph (k)(1) of this section.
(3) Where the downstream oxygenate blender is a person other than
the refiner or importer, as represented by management of the refinery
or importer, perform the following:
(i) Obtain the contract from the refiner or importer with the
downstream blender and inspect the contract evidencing that it covered
the period when oxygenate was blended;
(ii) Obtain company documents evidencing that the refiner or
importer has records reflecting that it conducted physical inspections
of the downstream blending operation during the period oxygenate was
blended;
(iii) Obtain company documents reflecting the refiner or importer
audit over the downstream oxygenate blending operation and note whether
these records evidencing the audit included a review of the overall
volumes and type of oxygenate purchased and used by the oxygenate
blender to be consistent with the oxygenate claimed by the refiner or
importer, and that this oxygenate was blended with the refinery's or
importer's gasoline or blending stock; and
(iv) Obtain a listing of test results for the sampling and testing
conducted by the refiner or importer over the downstream oxygenate
blending operation, and select a sample, in accordance with the
guidelines in Sec. 80.127, from this listing. For each test selected,
agree the tested oxygenate volume with the oxygenate volume in the
listing obtained from the oxygenate blender in paragraph (k)(2) of this
section for this gasoline.
? 29. Section 80.134 is added to subpart F to read as follows:
Sec. 80.134 Agreed-upon procedures for downstream oxygenate blenders.
The following are the minimum attest procedures that shall be
carried out for each oxygenate blending facility that is subject to the
requirements of this subpart F. Agreed upon procedures may vary from
the procedures stated in this section due to the nature of the
oxygenate blender's business or records, provided that any oxygenate
blender desiring to use modified procedures obtains prior approval from
EPA.
(a) EPA blender reports. Obtain and read a copy of the blender's
reports filed with the EPA as required by Sec. 80.75 for the reporting
period. Obtain a written representation from a company representative
that the copies are complete and accurate copies of the reports filed
with the EPA.
(b) Inventory reconciliation analysis. (1) Obtain from the blender
an inventory reconciliation analysis for the reporting period that
summarizes:
(i) Receipts of RBOB, reformulated gasoline, and oxygenate;
(ii) Beginning and ending inventories of RBOB, reformulated
gasoline, and oxygenate;
(iii) Production of reformulated gasoline; and
(iv) Tenders of RBOB and reformulated gasoline.
(2) Foot and the crossfoot volume totals reflected in the analysis.
[[Page 74578]]
(3) Agree the beginning and ending inventory amounts in the
analysis to the blender's inventory records.
(c) RBOB receipts. Obtain a listing of all RBOB receipts for the
reporting period, and perform the following:
(1) Foot to the total volume of RBOB receipts per the listing;
(2) Agree the total RBOB receipts volume reflected on the listing
to the RBOB receipts volume on the inventory reconciliation analysis;
(3) Select a sample, in accordance with the guidelines in Sec.
80.127, of RBOB receipts from the listing. For each selected RBOB
receipt, obtain product transfer documents specifying the type and
volume of oxygenate to be added to the RBOB.
(d) Oxygenate receipts. Obtain a listing of all oxygenate receipts
for the reporting period, and perform the following:
(1) Foot to the total volume of oxygenate receipts per the listing;
(2) Agree the total oxygenate receipts volume reflected on the
listing to the oxygenate receipts volume on the inventory
reconciliation analysis.
(e) Reformulated gasoline tenders. Obtain a listing of all
reformulated gasoline tenders for the reporting period, and perform the
following:
(1) Foot to the total reformulated gasoline tenders per the listing;
(2) Agree the total reformulated gasoline tenders volume reflected
on the listing to the reformulated gasoline tenders volume on the
inventory reconciliation analysis;
(3) Select a sample, in accordance with the guidelines in Sec.
80.127, of reformulated gasoline tenders from the listing, and for each
tender selected perform the following:
(i) Obtain the product transfer documents associated with the
tender and agree the volume on the tender listing to the volume on the
product transfer documents.
(ii) Inspect the product transfer documents evidencing the date and
location of the tender and the compliance model designations for the
tender (VOC-controlled for Region 1 or 2, non VOC-controlled, and
simple or complex model certified).
(f) RBOB tenders. Obtain a listing of all RBOB tenders during the
reporting period, and perform the following:
(1) Foot to the total volume of RBOB per the listing;
(2) Agree the total RBOB tenders volume reflected on the listing to
the RBOB tenders volume on the inventory reconciliation analysis.
(g) Reformulated gasoline batches. Obtain a listing of all
reformulated gasoline batches produced during the reporting period, and
perform the following:
(1) Foot to the total volume of reformulated gasoline batches
produced per the listing;
(2) Agree the total reformulated gasoline batch volume reflected on
the listing to the reformulated gasoline batch volume on the inventory
reconciliation analysis.
(h) Blender sampling and testing. (1) For blenders who meet the
oxygenate blending requirements by sampling and testing each batch of
reformulated gasoline, select a sample, in accordance with the
guidelines in Sec. 80.127, of reformulated gasoline batches from the
listing obtained in paragraph (g) of this section, and for each batch
selected perform the following:
(i) Obtain the internal laboratory analysis for the batch, and
agree the type of oxygenate used and the oxygen content appearing in
the laboratory analysis to the instructions stated on the product
transfer documents corresponding to a RBOB receipt immediately
preceding the laboratory analysis and used in producing the
reformulated gasoline batch selected.
(ii) Agree the oxygen content results of the laboratory analysis to
the corresponding batch information reported to EPA.
(2) For blenders who meet the oxygen content standard on average
without separately sampling and testing each batch, the following
procedures shall be carried out:
(i) Obtain a listing of the oxygen compliance calculations, test
the mathematic accuracy of the listing, and agree the volumetric
calculations to the inventory reconciliation analysis.
(ii) Select a representative sample of the oxygen compliance
calculations using the guidelines in Sec. 80.127, and for each
calculation selected:
(A) Confirm that the calculation represented gasoline production
for a period no longer than one month;
(B) Confirm that the oxygenate blender properly performed the
calculation, including that the oxygenate blender used the proper
values for specific gravities, mole fraction, and denaturant content;
and
(C) Agree the calculated oxygen value to the corresponding batch
report to EPA.
(iii) Obtain records of the oxygenate blender's quality assurance
program of sampling and testing, select a representative sample of the
quality assurance sample selected using the guidelines in Sec. 80.127,
and for each quality assurance sample selected confirm the sample was
collected within the required frequency.
(iv) For each RFG sample selected obtain the corresponding
laboratory analysis and compare the oxygen content to the ranges
specified by EPA.
(3) Blenders using assumed values. For blenders using the assumed
values for ethanol denaturant content in the oxygen compliance
calculation, obtain a chronological list of the ethanol samples tested
in connection with the blender's quality assurance program, including
the sampling dates and test results as to the oxygenate purity level.
Select a sample, in accordance with the guidelines in Sec. 80.127, of
ethanol samples and perform the following:
(i) Obtain the laboratory analysis corresponding to the selection
and compare the oxygenate purity level per the laboratory analysis to
the level on the list; and
(ii) Based on the level of the oxygenate purity, inspect the
listing evidencing that the frequency of the next sample made in
connection with the blender's quality assurance program was at least
once a month if oxygenate purity equals or exceeds 92.1%, or at least
once every two weeks if the oxygenate purity is less than 92.1%, for
any of the past four tests.
Subpart H--[Amended]
? 30. Section 80.211 is added to subpart H to read as follows:
Sec. 80. 211 What are the requirements for treating imported gasoline
as blendstock?
An importer may treat imported gasoline (as defined in Sec.
80.2(c)) as gasoline treated as blendstock, or GTAB, under the
provisions of Sec. 80.83 for purposes of compliance with this subpart H.
? 31. Section 80.410 is amended by revising paragraphs (f)(4)(ii) and
(r)(1)(iv) to read as follows:
Sec. 80.410 What are the additional requirements for gasoline
produced at foreign refineries having individual small refiner sulfur
baselines, foreign refineries granted temporary relief under Sec.
80.270, or baselines for generating credits during 2000 through 2003?
* * * * *
(f) * * *
(4) * * *
(ii) Be independent under the criteria specified in Sec.
80.65(f)(2)(iii); and
* * * * *
[[Page 74579]]
(r) * * *
(1) * * *
(iv) The persons who will meet the independent third party and
independent attest requirements for the foreign refinery have made the
commitments required in paragraphs (f)(4)(iii) and (h)(7)(iii) of this
section; and
* * * * *
[FR Doc. 05-23807 Filed 12-14-05; 8:45 am]
BILLING CODE 6560-50-P
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