Control of Hazardous Air Pollutants From Mobile Sources
[Federal Register: February 26, 2007 (Volume 72, Number 37)]
[Rules and Regulations]
[Page 8527-8570]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26fe07-21]
[[pp. 8527-8570]]
Control of Hazardous Air Pollutants From Mobile Sources
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the stated objectives of the applicable statutes.
2. The Need for and Objectives of This Rule
Mobile sources emit air toxics that can cause cancer and other
serious health effects (Section III of this preamble and Chapter 1 of
the Regulatory Impact Analysis for this rule describe these compounds
and their health effects). Mobile sources contribute significantly to
the nationwide risk from breathing outdoor sources of air toxics. In
this action we are finalizing: Standards to limit the exhaust
hydrocarbons from passenger vehicles during cold temperature operation;
evaporative hydrocarbon emissions standards for passenger vehicles;
limiting the average annual benzene content of gasoline; and
hydrocarbon emissions standards for gas cans that would reduce
evaporation, permeation, and spillage from these containers. (Detailed
discussions of each of these programs are in sections V, VI, and VII of
the preamble and Chapters 5, 6, and 7 of the RIA). Standards for
vehicles and gasoline benzene control are being pursued under section
202(l)(2) of the Clean Air Act (CAA), which directs EPA to establish
requirements to control emissions of mobile source air toxics from new
motor vehicles and fuels. Controls for gas cans are being pursued under
CAA section 183(e), the provisions applying to consumer and commercial
products.
3. Summary of the Significant Issues Raised by the Public Comments
We did not receive comments on the proposed flexibilities and
hardships for small volume vehicle manufacturers or gas can
manufacturers. We received comments from small refiners supporting the
inclusion of flexibility provisions and hardships for small gasoline
refiners. These comments generally supported additional lead-time,
credit generation provisions (early credit generation and extra credit
life for credits generated by or transferred to small refiners), and a
review of the credit program.
Small refiners also indicated that they could incur significant
economic impact in complying with the 1.3 vol% refinery maximum average
benzene standard. Our economic analysis indicates that most small
refiners will be able to comply with this standard without incurring
significant adverse economic impact. We also believe that allowing
additional lead time (until July 1, 2016) to meet this standard
ameliorates potential economic impact. In addition, we believe that any
other refiners that still demonstrate instances of severe economic
impact can be accommodated through the hardship relief provision set
out in the regulations at Sec. 80.1335. This issue is discussed in
more detail in section VI.A.3, in chapter 14 of the final RIA, and in
individual comment responses.
We also received comments regarding the fact that two recent
statutes use definitions that are not the same as the small refiner
criteria that we proposed. The commenters generally stated that EPA
should use one of the definitions from those statutes. However, we do
not believe that it would be appropriate to change the small refiner
employee count or crude capacity limit criteria to fit either of those
programs' definitions; rather, we believe that it is prudent to
continue using criteria similar to our current and previous fuel
programs. (Please see section VI.A.3.a.i above for a more detailed
discussion of this comment and our response.)
4. Summary of Regulated Small Entities
The following section discusses the small entities directly
regulated by this action.
a. Highway Light-Duty Vehicles
In addition to the major vehicle manufacturers, three distinct
categories of businesses relating to highway light-duty vehicles will
be covered by the new vehicle standards: small volume manufacturers
(SVMs), independent commercial importers (ICIs), and alternative fuel
vehicle converters. SVMs are companies that sell less than 15,000
vehicles per year, as defined in past EPA regulations, and this status
allows vehicle models to be certified under a slightly simpler
certification process. Independent commercial importers are companies
that hold a Certificate (or certificates) of Conformity permitting them
to alter imported vehicles to meet U.S. emission standards. Alternative
fuel vehicle converters are businesses that convert gasoline or diesel
vehicles to operate on alternative fuel, and converters must seek a
certificate for all of their vehicle models. From an assessment
performed for our SBREFA Panel process, we continue to believe that
there are about 14 SVMs, 10 alternative fuel vehicle converters, and 10
ICIs. Of these, EPA believes 5 SVMs, 6 converters, and all 10 ICIs
would meet the small-entity criteria as defined by SBA (no major
vehicle manufacturers meet the small-entity criteria). It is believed
that these small entities comprise about 0.02 percent of the total
light-duty vehicle sales in the U.S. for the year 2004.
b. Gasoline Refiners
EPA's current assessment is that 14 refiners (owning 16 refineries)
meet SBA's criterion of having 1,500 employees or less and our
criterion of having a crude capacity of less than or equal to 155,000
bpcd. It should be noted that because of the dynamics in the refining
industry (i.e., mergers and acquisitions) and decisions by some
refiners to enter or leave the gasoline market, the actual number of
refiners that ultimately qualify for small refiner status under an MSAT
program could be different than these estimates. Current data further
indicates that these refiners produce about 2.5 percent of the total
gasoline pool.
c. Portable Fuel Container Manufacturers
EPA conducted an industry profile to identify the manufacturers of
portable fuel containers--98 percent are plastic containers and 2
percent are metal gas cans. Using this industry profile, EPA identified
9 domestic manufacturers and 1 foreign manufacturer. Of these 9 U.S.
manufacturers, 8 meet the SBA definition of a small entity. One small
business accounted for over 50 percent of the U.S. sales in 2002, and
the other small entities comprised about 10 percent of U.S. sales.
5. Description of the Reporting, Recordkeeping, and Other Compliance
Requirements of the Rule
For highway light-duty vehicles, the reporting, recordkeeping, and
compliance requirements prescribed for this category in 40 CFR 86 will
be continued. Key among these requirements are certification
requirements and provisions related to reporting of production,
emissions information, flexibility use, etc.
For any fuel control program, EPA must have assurance that fuel
produced by refiners meets the applicable standard, and that the fuel
continues to meet the standard as it passes downstream through the
distribution system to the ultimate end user. As stated in section VI
above, the recordkeeping, reporting and compliance provisions of the
MSAT program will be consistent with those currently in place for
existing fuel programs. These provisions include: The submission of
refinery pre-compliance reports (similar to those required under the
highway and nonroad diesel fuel programs), the submission of refinery
batch reports, small refiner status and small refiner baseline
applications, and retention of
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all records for this program for five years.
For portable fuel containers, requirements similar to those in the
California program (such as submitting emissions testing information,
reporting of certification families, and use of transition provisions)
were proposed and are being finalized today.
6. Relevant Federal Rules
We are aware of a few other current or proposed Federal rules that
are related to this rule. The primary related federal rules are the
first MSAT rule (66 FR 17230, March 29, 2001), the Tier 2 Vehicle/
Gasoline Sulfur rulemaking (65 FR 6698, February 10, 2000), the fuel
sulfur rules for highway diesel (66 FR 5002, January 18, 2001) and
nonroad diesel (69 FR 38958, June 29, 2004), the Reformulated Gasoline
and Anti-dumping rule (59 FR 7813 and 59 FR 7860, February 16, 1994),
and the Cold Temperature Carbon Monoxide Rulemaking (57 FR 31888, July
17, 1992).
In addition, the Evaporative Emissions Streamlining Direct Final
Rulemaking was issued on December 8, 2005 (70 FR 72917). For portable
fuel containers, the Occupational Safety and Health Administration
(OSHA) has safety regulations for containers used in workplace
settings. Containers that meet OSHA's requirements, commonly called
safety cans, are exempt from the California program, and we are thus
exempting them from the EPA program.
Section 1501 of the Energy Policy Act of 2005 requires the Agency
to implement a Renewable Fuels Standard (RFS) program. Beginning in
2006, this program will require increasing volumes of renewable fuel to
be used in gasoline, until a total of 7.5 billion gallons is required
in 2012. The most prevalent renewable fuel is expected to be ethanol.
There are a wide variety of potential impacts of ethanol blending on
MSAT emissions that will be evaluated as part of the RFS rulemaking
process. In general, as ethanol use increases, other sources of octane
in gasoline can decrease. Depending on these changes, the impact on
benzene emissions will vary. The specific effects of ethanol on benzene
are addressed in the Regulatory Impact Analysis (RIA) to this rule and
in other fuels rulemakings, such as the RFS rule (71 FR 55552,
September 22, 2006).
7. Steps Taken To Minimize the Significant Economic Impact on Small
Entities
a. Significant Panel Findings
The SBAR Panel considered many regulatory options and flexibilities
that would help mitigate potential adverse effects on small businesses
as a result of this rule. During the SBREFA Panel process, the Panel
sought out and received comments on the regulatory options and
flexibilities that were presented to Small Entity Representatives
(SERs) and Panel members. The major flexibilities and hardship relief
provisions that were recommended by the Panel were proposed and are
generally being finalized today (for more information regarding the
Panel process, see Section 9 of the SBREFA Final Panel Report, which is
available in the public docket for this rule).
b. Outreach With Small Entities (and the Panel Process)
As required by section 609(b) of the RFA as amended by SBREFA, EPA
conducted outreach to small entities and convened a SBAR Panel prior to
proposing the MSAT rule to obtain advice and recommendations of
representatives of the small entities that potentially would be subject
to the rule's requirements.
As part of the SBAR Panel process, we conducted outreach with
representatives from the various small entities that would be affected
by the rule. We met with these SERs to discuss the potential rulemaking
approaches and potential options to decrease the impact of the
rulemaking on their industries. The Panel received written comments
from the SERs, specifically on regulatory alternatives that could help
to minimize the rule's impact on small businesses.
In general, SERs representing the portable fuel container industry
raised concerns on how the MSAT rule's requirements would be
coordinated with the California program and other requirements, and
that there should be adequate opportunity for sell through at the start
of the program. The small volume manufacturer, ICI, and vehicle
converter SERs that participated had questions about the form of the
new standards for light-duty vehicles, specifically testing and
certification requirements. The gasoline refiner SERs generally stated
that they believed that small refiners would face challenges in meeting
a new standard. More specifically, they raised the concern that the
rule could be very costly and dependence on credits may not be a
comfortable situation; they were also concerned about the timing of the
standards for this rule, given other upcoming fuel standards.
The Panel agreed that EPA should consider the issues raised by the
SERs (and discussions had by the Panel itself) and that EPA should
consider comments on flexibility alternatives that would help to
mitigate any negative impacts on small businesses. Alternatives
discussed throughout the Panel process included those offered in
previous or current EPA rulemakings, as well as alternatives suggested
by SERs and Panel members, and the Panel recommended that all be
considered in the development of the rule.
A summary of the Panel's recommendations, what the Agency proposed,
and what is being finalized today is discussed below. A detailed
discussion of the regulatory alternatives and hardship provisions
discussed and recommended by the Panel can be found in the SBREFA Final
Panel Report. A complete discussion of the transition and hardship
provisions that are being finalized today can be found in Sections V,
VI, and VII (vehicle, fuels, and portable fuel container sections) of
this preamble.
c. Small Business Flexibilities
i. Highway Light-Duty Vehicles
(a) Highway Light-Duty Vehicle Flexibilities
For certification purposes (and for the sake of simplicity for
Panel discussions regarding flexibility options), SVMs include ICIs and
alternative fuel vehicle converters since they sell less than 15,000
vehicles per year. Similar to the flexibility provisions implemented in
the Tier 2 rule, the Panel recommended that we allow SVMs (includes all
vehicle small entities that would be affected by this rule, which are
the majority of SVMs) the following flexibility options for meeting
cold temperature NMHC standards and evaporative emission standards:
Cold NMHC Standards--The Panel recommended that SVMs simply comply
with the standards with 100 percent of their vehicles during the last
year of the four-year phase-in period. For example, if the standard for
light-duty vehicles and light light-duty trucks (0 to 6,000 pounds
GVWR) were to begin in 2010 and end in 2013 (25%, 50%, 75%, 100% phase-
in over four years), the SVM provision would be 100 percent in 2013. If
the standard for heavy light-duty trucks and medium-duty passenger
vehicles (greater than 6,000 pounds GVWR) were to start in 2012 (25%,
50%, 75%, 100% phase-in over four years), the SVM provision would be
100 percent in 2015.
Evaporative Emission Standards--The Panel recommended that since
the evaporative emissions standards will not have phase-in years, we
allow SVMs to simply comply with standards during
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the third year of the program (we have implemented similar provisions
in past rulemakings). For a 2009 start date for light-duty vehicles and
light light-duty trucks, SVMs would need to meet the evaporative
emission standards in 2011. For a 2010 implementation date for heavy
light-duty trucks and medium-duty passenger vehicles, SVMs would need
to comply in 2012.
We proposed the recommendations given by the Panel for these small
business entities. We agree that SVMs may need additional lead time
flexibility and the new cold NMHC standards for LDVs and LLDTs will
begin in model year 2010 and end in model year 2013, therefore we are
finalizing (as proposed) that the SVM provision would be 100 percent in
model year 2013. Also, since the new cold NMHC standard for HLDTs and
MDPVs will begin in 2012, we are finalizing as proposed that the SVM
provision will be 100 percent in model year 2015. We believe that the
Panel's recommendation for flexibilities with regard to the evaporative
emission standards is reasonable. Therefore, for a 2009 model year
start date for LDVs and LLDTs we proposed, and are finalizing, that
SVMs meet the evaporative emission standards in model year 2011. For a
model year 2010 implementation date for HLDTs and MDPVs, we proposed
and are finalizing that SVMs comply in model year 2012. (Please see
section V.E.1 for a greater discussion on flexibility provisions for
small volume manufacturers.)
(b) Highway Light-Duty Vehicle Hardships
In addition, the Panel recommended that hardship flexibility
provisions be extended to SVMs for the cold temperature VOC and evaporative
emission standards. The provisions that the Panel recommended are:
SVMs would be allowed to apply (EPA would need to review and
approve application) for up to an additional 2 years to meet the 100
percent phase-in requirements for cold VOC and the delayed requirement
for evaporative emissions. Appeals for such hardship relief must be
made in writing, must be submitted before the earliest date of
noncompliance, must include evidence that the noncompliance will occur
despite the manufacturer's best efforts to comply, and must include
evidence that severe economic hardship will be faced by the company if
the relief is not granted.
We proposed the Panel-recommended flexibility and hardship
provisions described above, and we are finalizing these provisions in
this action. (Please see section V.E.2 for a greater discussion on the
hardship provisions for small volume manufacturers.)
(c) Special Provisions for Independent Commercial Importers (ICIs)
Although the SBAR panel did not specifically recommend it, we
proposed, and are finalizing, that ICIs may participate in the
averaging, banking, and trading (ABT) program for cold temperature NMHC
fleet average standards, but with appropriate constraints to ensure
that fleet averages will be met. The existing regulations for ICIs
specifically prohibit ICIs from participating in emission-related
averaging, banking, and trading programs unless specific exceptions are
provided. However, an exception for ICIs to participate in an
averaging, banking, and trading program was made for the Tier 2
NOX fleet average standards, and today we are finalizing as
proposed to apply a similar exception for the cold temperature NMHC
fleet average standards. We also proposed, and are finalizing, that
ICIs not be allowed to utilize the deficit carry-forward provisions of
the ABT program. (Please see section V.E.3 for a greater discussion on
the hardship provisions for small volume manufacturers.)
ii. Gasoline Refiners
(a) Gasoline Refiner Flexibilities
The Panel recommended that EPA propose certain provisions to
encourage early compliance with lower benzene standards. The Panel
recommended that EPA propose that small refiners be afforded the following
flexibility options to help mitigate the impacts on small refiners:
Delay in Standards--The Panel recommended that a four-year delay
period be proposed for small refiners (in order to allow for a review
of the ABT program, as discussed below, to occur one year after
implementation but still roughly three years prior to the small refiner
compliance deadline). It was noted by the small refiners that three
years are generally needed for small refiners to obtain financing and
perform engineering and construction. The Panel was also in support of
allowing for refinery expansion within the delay option, and
recommended that refinery expansion be provided for in the rule.
Early ABT Credits--The Panel recommended that small refiners be
eligible to generate early credits if they take some steps to meet the
0.62 vol% benzene requirement prior to the effective date of the
standard. Depending on the start date of the program, and coupled with
the four-year delay option for small refiners, a small refiner could
have a total credit generation period of five to seven years. The Panel
was also in support of allowing refiners (small, as well as non-small,
refiners) to generate credits for reductions to their benzene emissions
levels, rather than credits only for meeting the 0.62 vol% benzene
standard that is set by the rule.
ABT Program Review--The Panel recommended a review of the credit
trading program and small refiner flexibility options one year after
the general program starts. The Panel further recommended that the
review could take into account the number of early credits generated,
as well as the number of credits generated and sold during the first
year of the program. The Panel recommended that if the review were to
conclude that changes to either the program or the small refiner
provisions were necessary, EPA should also consider some of the
suggestions provided by the small refiners (their comments are located
in Appendix E of the Final Panel Report), such as:
? The general MSAT program should require pre-compliance
reporting (similar to EPA's highway and nonroad diesel rules);
? Following the review, EPA should revisit the small refiner
provisions if it is found that the credit trading market does not
exist, or if credits are only available at a cost that would not allow
small refiners to purchase credits for compliance;
? The review should offer ways either to help the credit
market, or help small refiners gain access to credits (e.g., EPA could
`create' credits to introduce to the market, EPA could impose
additional requirements to encourage trading with small refiners, etc.).
? In addition, the Panel recommended that EPA consider in
this rulemaking establishing an additional hardship provision to assist
those small refiners that cannot comply with the MSAT with a viable
credit market. (This suggested hardship provision was also suggested by
the small refiners in their comments, located in Appendix E of the
Final Panel Report). This hardship provision would address concerns
that, for some small refineries, compliance may be technically feasible
only through the purchase of credits and it may not be economically
feasible to purchase those credits. This flexibility would be provided
to a small refiner on a case-by-case basis following the review and
based on a summary, by the refiner, of technical or financial
infeasibility (or some other type of similar situation that would
render its compliance with the standard difficult). This hardship
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provision might include further delays and/or a slightly relaxed
standard on an individual refinery basis for a duration of two years;
in addition, this provision might allow the refinery to request, and
EPA grant, multiple extensions of the flexibility until the refinery's
material situation changes. The Panel also stated that it understood
that EPA may need to modify or rescind this provision, should it be
implemented, based on the results of the program review.
We proposed and are finalizing the recommended four-year period of
additional lead time (until January 1, 2015, four years after the
general program start date) for compliance with the 0.62 vol% benzene
standard. With respect to the 0.62 vol% standard, we agreed that a
four-year period of additional lead time for small refiners would
provide these refiners with roughly three years of lead time following
the review of the credit program to complete capital projects if
necessary or desirable to meet the 0.62 vol% benzene standard rather
than to rely on credits. Further, we are finalizing an additional 18
months of lead time for small refiners to comply with the 1.3 vol%
maximum average benzene standard (similar to 18-month lead-time
afforded under the general program), until July 1, 2016. We likewise
believe that this additional lead-time will provide small refiners with
appropriate additional opportunity to raise capital and complete
projects necessary to comply with the maximum average benzene standard.
With regard to credits, we proposed the Panel's recommendation that
small refiners that take steps to meet the 0.62 vol% benzene
requirement prior to January 1, 2015 would be eligible to generate
early credits, and that credits remain available for small refiners for
an additional amount of time. Early credit generation opportunities
will provide more credits for the MSAT ABT program and will help to
achieve the air quality goals of the MSAT program earlier than
otherwise required. Therefore, we are finalizing an early credit
generation provision for small refiners. Further, we believe that some
incentive to trade credits with small refiners is warranted to help
ensure that sufficient credits are available. Therefore, as stated
above in section VI.A.3, we are finalizing the proposed provision that
standard credits that are traded to, and ultimately used by, small
refiners have an additional credit life of two years beyond the limit
that is otherwise allowed.
We proposed that we would perform a review of the ABT program (and
thus, the small refiner flexibility options) by 2012, one year after
the general program begins. We are finalizing this provision today. In
part to support this review, we are also requiring that refiners submit
pre-compliance reports. If, following the review, EPA finds that the
credit market is not adequate to support the small refiner provisions,
we will revisit the provisions to determine whether or not they should
be altered or whether EPA can assist the credit market (and small
refiners' access to credits) to enable a successful ABT program. We are
finalizing an additional hardship provision to assist small refiners if
it is found that some small refiners still cannot comply with the 0.62
vol% benzene standard even with a viable credit market. The provision
will only be available following the ABT program review and will only
be afforded to small refiners on a case-by-case basis, and is in
addition to the general refiner hardship provisions that are available
to all refiners. Please see section VI.A.3.a.iii of this preamble for a
more detailed discussion of this hardship provision.
(b) Gasoline Refiner Hardships
During the Panel process, we stated that we intended to propose the
extreme unforeseen circumstances hardship and extreme hardship
provisions (for all gasoline refiners and importers), similar to those
in prior fuels programs. A hardship based on extreme unforeseen
circumstances is intended to provide short-term relief due to
unanticipated circumstances beyond the control of the refiner, such as
a natural disaster or a refinery fire; an extreme hardship is intended
to provide short-term relief based on extreme circumstances (e.g.,
extreme financial problems, extreme operational or technical problems,
etc.) that impose extreme hardship and thus significantly affect a
refiner's ability to comply with the program requirements by the
applicable dates. The Panel agreed with the proposal of such provisions
and recommended that we include them in the MSAT rulemaking; thus, we
proposed these provisions.
We are finalizing the extreme hardship provision and the extreme
unforeseen circumstances hardship provision with some modifications, as
this final rule includes a 1.3 vol% refinery maximum average benzene
standard. As discussed in more detail in section VI.A.3.b, relief will
be granted on a case-by-case basis; however, it may differ somewhat
depending upon whether a refiner applies for hardship relief for the
0.62 vol% benzene standard or for the 1.3 vol% refinery maximum average
standard (while a refiner may apply for relief from both standards,
hardship relief will be addressed independently for each standard).
This is partly due to the fact that a refiner may use credits to meet
the 0.62 vol% benzene standard, but credits cannot be used for
compliance with the 1.3 vol% refinery maximum average.
Extreme hardship circumstances could exist based on severe economic
or physical lead time limitations of the refinery to comply with the
required benzene standards at the start of the program. For relief from
the 0.62 vol% benzene standard in extreme hardship circumstances,
relief will likely be in the form of an extension of the one-year
deficit carry-forward allowed by the rule. Relief from the 1.3 vol%
refinery maximum average benzene standard in extreme hardship
circumstances would consist of additional time to comply with the 1.3
vol% refinery maximum average. Refiners must apply by January 1, 2008
(or, January 1, 2013 for approved small refiners) for extreme hardship
relief from the 1.3 vol% refinery maximum average standard, as this
provision is intended to address unusual circumstances that should be
apparent now, or well before the standard takes effect.
The extreme unforeseen circumstances hardship is available to both
refiners and importers, and is intended to provide relief in extreme
and unusual circumstances outside a refiner or importer's control that
could not have been avoided through the exercise of due diligence.
Hardship relief for the 0.62 vol% benzene standard will allow a deficit
to be carried forward for an extended, but limited, time period (more
than the one year allowed by the rule). Relief from the 1.3 vol%
refinery maximum average benzene standard based on unforeseen
circumstances will be granted on a case-by-case basis, following an
assessment of the hardship application, and would generally be in the
form of an extension of time to comply with the standard.
iii. Portable Fuel Containers
(a) Portable Fuel Container Flexibilities
Since nearly all portable fuel container manufacturers are small
entities and they account for about 60 percent of sales, the Panel
planned to extend the flexibility options to all portable fuel container
manufacturers. Moreover, implementation of the program would be much
simpler by doing so. The recommended flexibilities are the following:
Design Certification--The Panel recommended that we propose to
permit portable fuel container manufacturers to
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use design certification in lieu of running any or all of the
durability aging cycles. Manufacturers could demonstrate the durability
of their gas cans based in part on emissions test data from designs
using the same permeation barriers and materials. Under a design-based
certification program, a manufacturer would provide evidence in the
application for certification that their container would meet the
applicable standards based on its design (e.g., use of a particular
permeation barrier). The manufacturer would submit adequate engineering
and other information about its individual design such that EPA could
determine that the emissions performance of their individual design
would not be negatively impacted by slosh, UV exposure, and/or pressure
cycling (whichever tests the manufacturer is proposing to not run prior
to emissions testing).
Broaden Certification Families--This approach would relax the
criteria used to determine what constitutes a certification family. It
would allow small businesses to limit their certification families (and
therefore their certification testing burden), rather than testing all
of the various size containers in a manufacturer's product line. Some
small entities may be able to put all of their various size containers
into a single certification family. Manufacturers would then certify
their containers using the ``worst case'' configuration within the
family. To be grouped together, containers would need to be
manufactured using the same materials and processes even though they
are of different sizes.
Additional Lead-time--Since it may take additional time for the
portable fuel container SERs to gather information to fully evaluate
whether or not additional lead-time is needed beyond the 2009 start
date, the Panel recommended that we discuss lead-time in the proposal
and request comments on the need for additional lead-time to allow
manufacturers to ramp up to a nationwide program.
Product Sell-through--As with past rulemakings for other source
sectors, the Panel recommended that EPA propose to allow normal sell
through of portable fuel containers as long as manufacturers do not
create stockpiles of noncomplying portable fuel containers prior to the
start of the program.
We proposed these Panel-recommended flexibilities for all portable
fuel container manufacturers. As stated above, we did not receive any
comments on the proposed flexibilities, and are therefore finalizing
them as proposed (the flexibility provisions are incorporated into the
program requirements described earlier in sections VII.B through VII.D).
(b) Portable Fuel Container Hardships
The Panel recommended that EPA propose two types of hardship
programs for small portable fuel container manufacturers.
The first would allow small manufacturers to petition EPA for
limited additional lead-time to comply with the standards. A
manufacturer would have to demonstrate that it has taken all possible
business, technical, and economic steps to comply, but the burden of
compliance costs would have a significant adverse effect on the
company's solvency. Hardship relief may include requirements for
interim emission reductions.
The second hardship provision would permit small manufacturers to
apply for hardship relief if circumstances outside their control cause
the failure to comply (i.e., supply contract broken by parts supplier)
and if failure to sell the subject containers would have a major impact
on the company's solvency. The terms and timeframe of the relief would
depend on the specific circumstances of the company and the situation
involved.
We proposed, and are finalizing, the above hardship provisions for
portable fuel container manufacturers. These entities could, on a case-
by-case basis, face hardship, and we are finalizing these provisions to
provide what could prove to be needed safety valves for these entities.
For both types of hardship provisions, the length of the hardship
relief will be established, during the initial review, for not more
than one year and will be reviewed annually thereafter as needed.
(Please see section VII.F for a more detailed discussion of these
hardship provisions.)
As required by section 212 of SBREFA, EPA also is preparing a Small
Entity Compliance Guide to help small entities comply with this rule.
The compliance guide will be available on the Web at:
http://www.epa.gov/otaq/toxics.htm.
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 of 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.
This rule contains no federal mandates for state, local, or tribal
governments as defined by the provisions of Title II of the UMRA. The
rule imposes no enforceable duties on any of these governmental
entities. Nothing in the rule would significantly or uniquely affect
small governments. EPA has determined that this rule contains federal
mandates that may result in expenditures of more than $100 million to
the private sector in any single year. EPA believes that the final rule
represents the least costly, most cost-effective approach to achieve
the statutory requirements of the rule. The costs and benefits
associated with the final rule are discussed above and in the
Regulatory Impact Analysis, as required by the UMRA.
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
[[Page 8532]]
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 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.
Although section 6 of Executive Order 13132 does not apply to this
rule, EPA did consult with representatives of various State and local
governments in developing this rule. EPA has also consulted
representatives from STAPPA/ALAPCO, which represents state and local
air pollution officials.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicited comment on the proposed rule
from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 9, 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 final rule does not have tribal implications as specified in
Executive Order 13175. This rule will be implemented at the Federal
level and impose compliance costs only on vehicle manufacturers
(includes alternative fuel vehicle converters and ICIs), fuel
producers, and portable gasoline container manufacturers. Tribal
governments will be affected only to the extent they purchase and use
regulated vehicles, fuels, and portable gasoline containers. 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, section 5-501 of the Order directs the Agency to
evaluate the environmental health or safety effects of the planned rule
on children, and explain why the planned regulation is preferable to
other potentially effective and reasonably feasible alternatives
considered by the Agency.
This final rule is subject to the Executive Order because it is an
economically significant regulatory action as defined by Executive
Order 12866, and we believe that by addressing the environmental health
or safety risk this action may have a disproportionate beneficial
effect on children. Accordingly, we have evaluated the potential
environmental health or safety effects of VOC and toxics emissions from
gasoline-fueled mobile sources and gas cans on children. The results of
this evaluation are described below and contained in sections III and IV.
Exposure to a number of the compounds addressed in this rule may
have a disproportionate effect on children. First, exposure to
carcinogens that cause cancer through a mutagenic mode of action during
childhood development may have an incrementally disproportionate
impact. Because of their small size, increased activity, and increased
ventilation rates compared to adults, children may have greater
exposure to these compounds in the ambient air, on a unit body weight
basis. Moreover, for PM, because children's breathing rates are higher,
their exposures may be higher and because their respiratory systems are
still developing, children may be more susceptible to problems from
exposure to respiratory irritants.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. The gasoline
benzene provisions of the final rule will shift about 12,500 barrels
per day of benzene from the gasoline market to the petrochemical
market. This volume represents about 0.1 percent of nationwide gasoline
production. The actual impact of the rule on the gasoline market,
however, is likely to be less due to offsetting changes in the
production of petrochemicals, as well as expected growth in the
petrochemical market absent this rule. The major sources of benzene for
the petrochemical market other than reformate from gasoline production
are also derived from gasoline components or gasoline feedstocks.
Consequently, the expected shift toward more benzene production from
reformate due to this final rule will be offset by less benzene
produced from other gasoline feedstocks.
The rule will require refiners to use a small additional amount of
energy in processing gasoline to reduce benzene levels, primarily due
to the increased energy used for benzene extraction. Our modeling of
increased energy use indicates that the process energy used by refiners
to produce gasoline would increase by about 0.6 percent (or, six-tenths
of a percent). Overall, we believe that the final rule will result in
no significant adverse energy impacts.
The gasoline benzene provisions will not affect the current
gasoline distribution practices.
We discuss our analysis of the energy and supply effects of the
gasoline benzene standard further in section VIII of this preamble and
in Chapter 9 of the Regulatory Impact Analysis.
The fuel supply and energy effects described above will be offset
substantially by the positive effects on gasoline supply and energy use
of the gas can standards also promulgated in today's action. These
provisions will greatly reduce the gasoline lost to evaporation from
gas cans. This will in turn reduce the demand for gasoline, increasing
the gasoline supply and reducing the energy used in producing gasoline.
I. National Technology Transfer Advancement Act
As noted in the proposed rule, Section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law
104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
This rulemaking involves technical standards. Therefore, the Agency
[[Page 8533]]
conducted a search to identify potentially applicable voluntary
consensus standards. However, we identified no such standards.
Therefore, for the cold temperature NMHC standards, EPA will use the
existing EPA cold temperature CO test procedures (manufacturers
currently measure hydrocarbon emissions with current cold CO test
procedures), which were adopted in a previous EPA rulemaking (1992).
The fuel standards referenced in today's rule involve the measurement
of gasoline fuel parameters. The measurement standards for gasoline
fuel parameters referenced in today's rulemaking are government-unique
standards that were developed by the Agency through previous
rulemakings. Both the cold temperature CO test procedures and the
measurement standards for gasoline fuel parameters have served the
Agency's emissions control goals well since their implementation and
have been well accepted by industry. For gas cans, EPA is promulgating
new procedures for measuring hydrocarbon emissions.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the environment.
The final rule will reduce VOC and toxic emissions from gasoline-
fueled mobile sources (particularly highway light-duty vehicles) and
gas cans, and thus, it will decrease the amount of air pollution to
which the entire population is exposed. The rule will also reduce PM
emissions from highway light-duty vehicles. EPA evaluated the
population residing close to high traffic density (near roadways), and
we found that this population has demographic differences from the
general population, including a greater fraction of lower income and
minority residents. The rule will reduce emissions from roadways. Since
those living near roadways are more likely to be lower income and
minority residents, this population will have a disproportionate
benefit from the rule. Thus, this rule does not have a
disproportionately high adverse human health or environmental effect on
minority populations.
K. 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
before the rule is published in the Federal Register. This rule is a
``major rule'' as defined by 5 U.S.C. 804(2).
XI. Statutory Provisions and Legal Authority
Statutory authority for the fuels controls in this final rule can
be found in sections 202 and 211(c) of the Clean Air Act (CAA), as
amended, 42 U.S.C. 7521 and 7545(c). Additional support for the
procedural and enforcement-related aspects of the fuel controls in this
final rule, including the recordkeeping requirements, come from
sections 114(a) and 301(a) of the CAA, 42 U.S.C. 7414(a) and 7601(a).
Statutory authority for the vehicle controls in this final rule can
be found in sections 202, 206, 207, 208, and 301 of the CAA, 42 U.S.C.
7521, 7525, 7541, 7542 and 7601.
Statutory authority for the portable fuel container controls in
this final rule can be found in sections 183(e) and 111 of the CAA, 42
U.S.C. sections 7511b(e) and 7411.
List of Subjects
40 CFR Part 59
Environmental protection, Administrative practice and procedure,
Confidential business information, Incorporation by reference,
Labeling, Consumer or Commercial Products pollution, Penalties,
Reporting and recordkeeping requirements.
40 CFR Part 80
Environmental protection, Air pollution control, Fuel additives,
Gasoline, Imports, Incorporation by reference, Labeling, Motor vehicle
pollution, Penalties, Reporting and recordkeeping requirements.
40 CFR Part 85
Environmental protection, Administrative practice and procedure,
Confidential business information, Imports, Labeling, Motor vehicle
pollution, Penalties, Reporting and recordkeeping requirements,
Research, Warranties.
40 CFR Part 86
Environmental protection, Administrative practice and procedure,
Confidential business information, Incorporation by reference,
Labeling, Motor vehicle pollution, Penalties, Reporting and
recordkeeping requirements.
Dated: February 9, 2007.
Stephen L. Johnson,
Administrator.
? For the reasons set forth in the preamble, parts 59, 80, 85 and 86 of
title 40 of the Code of Federal Regulations are amended as follows:
PART 59--NATIONAL VOLATILE ORGANIC COMPOUND EMISSION STANDARDS FOR
CONSUMER AND COMMERCIAL PRODUCTS
? 1. The authority citation for part 59 is revised to read as follows:
Authority: 42 U.S.C. 7414 and 7511b(e).
Subpart E--[Added and Reserved]
? 2a. Add and reserve Subpart E.
? 2b. A new Subpart F is added to part 59 to read as follows:
Subpart F--Control of Evaporative Emissions From New and In-Use
Portable Fuel Containers
Overview and Applicability
Sec.
59.600 Does this subpart apply for my products?
59.601 Do the requirements of this subpart apply to me?
59.602 What are the general prohibitions and requirements of this subpart?
59.603 How must manufacturers apply good engineering judgment?
59.605 What portable fuel containers are excluded from this
subpart's requirements?
59.607 Submission of information.
Emission Standards and Related Requirements
59.611 What evaporative emission requirements apply under this subpart?
59.612 What emission-related warranty requirements apply to me?
59.613 What operation and maintenance instructions must I give to buyers?
59.615 How must I label and identify the portable fuel containers I produce?
[[Page 8534]]
Certifying Emission Families
59.621 Who may apply for a certificate of conformity?
59.622 What are the general requirements for obtaining a certificate
of conformity and producing portable fuel containers under it?
59.623 What must I include in my application?
59.624 How do I amend my application for certification?
59.625 How do I select emission families?
59.626 What emission testing must I perform for my application for a
certificate of conformity?
59.627 How do I demonstrate that my emission family complies with
evaporative emission standards?
59.628 What records must I keep and what reports must I send to EPA?
59.629 What decisions may EPA make regarding my certificate of conformity?
59.630 EPA testing.
59.650 General testing provisions.
59.652 Other procedures.
59.653 How do I test portable fuel containers?
Special Compliance Provisions
59.660 Exemption from the standards.
59.662 What temporary provisions address hardship due to unusual
circumstances?
59.663 What are the provisions for extending compliance deadlines
for manufacturers under hardship?
59.664 What are the requirements for importing portable fuel
containers into the United States?
Definitions and Other Reference Information
59.680 What definitions apply to this subpart?
59.685 What symbols, acronyms, and abbreviations does this subpart use?
59.695 What provisions apply to confidential information?
59.697 State actions.
59.698 May EPA enter my facilities for inspections?
59.699 How do I request a hearing?
Subpart F--Control of Evaporative Emissions From New and In-Use
Portable Fuel Containers
Overview and Applicability
Sec. 59.600 Does this subpart apply for my products?
(a) Except as provided in Sec. 59.605 and paragraph (b) of this
section, the regulations in this subpart F apply for all portable fuel
containers (defined in Sec. 59.680) that are manufactured on or after
January 1, 2009.
(b) See Sec. 59.602 (a) and (b) to determine how to apply the
provisions of this subpart for containers that were manufactured before
January 1, 2009.
Sec. 59.601 Do the requirements of this subpart apply to me?
(a) Unless specified otherwise in this subpart, the requirements
and prohibitions of this subpart apply to all manufacturers and
importers of portable fuel containers. Certain prohibitions in Sec.
59.602 apply to all other persons.
(b) New portable fuel containers that are subject to the emissions
standards of this part must be covered by a certificate of conformity
that is issued to the manufacturer of the container. If more than one
person meets the definition of manufacturer for a portable fuel
container, see Sec. 59.621 to determine if you are the manufacturer
who may apply for and receive a certificate of conformity.
(c) Unless specifically noted otherwise, the term ``you'' means
manufacturers, as defined in Sec. 59.680.
Sec. 59.602 What are the general prohibitions and requirements of
this subpart?
(a) General prohibition for manufacturers and importers. No
manufacturer or importer may sell, offer for sale, introduce or deliver
for introduction into commerce in the United States, or import any new
portable fuel container that is subject to the emissions standards of
this subpart and is manufactured after December 31, 2008 unless it is
covered by a valid certificate of conformity, it is labeled as
required, and it complies with all of the applicable requirements of
this subpart, including compliance with the emissions standards for its
useful life. After June 30, 2009, no manufacturer or importer may sell,
offer for sale, introduce or deliver into commerce in the United
States, or import any new portable fuel container that was manufactured
prior to January 1, 2009 unless it meets the requirements of this subpart.
(b) General prohibition for wholesale distributors. No wholesale
distributor may sell, offer for sale, or distribute any portable fuel
container in the United States that is subject to the emissions
standards of this subpart and is manufactured after December 31, 2008
unless it is covered by a valid certificate of conformity and is
labeled as required. After December 31, 2009, no wholesale distributor
may sell, offer for sale, or distribute in the United States any
portable fuel container that was manufactured prior to January 1, 2009
unless it meets the requirements of this subpart. After December 31,
2009, all new portable fuel containers shall be deemed to be
manufactured after December 31, 2008 unless they are in retail inventory.
(c) Reporting and recordkeeping. (1) You must keep the records and
submit the reports specified in Sec. 59.628. Records must be retained
for at least 5 years from the date of manufacture or importation and
must be supplied to EPA upon request.
(2) No person may alter, destroy, or falsify any record or report
required by this subpart.
(d) Testing and access to facilities. You may not keep us from
entering your facility to observe tests or inspect facilities if we are
authorized to do so. Also, you must perform the tests we require (or
have the tests done for you). Failure to perform this testing is prohibited.
(e) Warranty. You may not fail to offer, provide notice of, or
honor the emissions warranty required under this subpart.
(f) Replacement components. No person may sell, offer for sale,
introduce or deliver for introduction into commerce in the United
States, import, or install any replacement component for portable fuel
containers subject to the standards of this subpart where the component
has the effect of disabling, bypassing, or rendering inoperative the
emissions controls of the containers.
(g) Violations. If a person violates any prohibition or requirement
of this subpart or the Act concerning portable fuel containers, it
shall be considered a separate violation for each portable fuel container.
(h) Assessment of penalties and injunctions. We may assess
administrative penalties, bring a civil action to assess and recover
civil penalties, bring a civil action to enjoin and restrain
violations, or bring criminal action as provided by the Clean Air Act.
Sec. 59.603 How must manufacturers apply good engineering judgment?
(a) In addition to other requirements and prohibitions set forth in
this subpart, you must use good engineering judgment for decisions
related to any requirements under this subpart. This includes your
applications for certification, any testing you do to show that your
portable fuel containers comply with requirements that apply to them,
and how you select, categorize, determine, and apply these requirements.
(b) Upon request, you must provide EPA a written description of the
engineering judgment in question. Such information must be provided
within 15 working days unless EPA specifies a different period of time
to respond.
(c) We may reject your decision if it is not based on good
engineering judgment or is otherwise inconsistent with the requirements
that apply, and we may--
(1) Suspend, revoke, or void a certificate of conformity if we
determine you used incorrect or incomplete
[[Page 8535]]
information or failed to consider relevant information, or that your
decision was not based on good engineering judgment; or
(2) Notify you that we believe any aspect of your application or
other information submission may be incorrect or invalid due to lack of
good engineering judgment or other cause. Unless a different period is
specified, you will have 30 days to respond to our notice and
specifically address our concerns. After considering your information,
we will notify you regarding our finding, which may include the actions
provided in paragraph (c)(1) of this section.
(d) If you disagree with our conclusions under paragraph (c) of
this section, you may file a request for a hearing with the Designated
Compliance Officer as described in Sec. 59.699. In your request, you
must specifically state your objections, and include relevant data or
supporting analysis. The request must be signed by your authorized
representative. If we agree that your request raises a substantial
factual issue, we will hold the hearing according to Sec. 59.699.
Sec. 59.605 What portable fuel containers are excluded from this
subpart's requirements?
This section describes exclusions that apply to certain portable
fuel containers. The prohibitions and requirements of this subpart do
not apply for containers excluded under this section. Exclusions under
this section are based on inherent characteristics of the containers.
See Sec. 59.660 for exemptions that apply based on special circumstances.
(a) Containers approved as safety cans consistent with the
requirements of 29 CFR 1926.150 through 1926.152 are excluded. Such
cans generally have a flash-arresting screens, spring-closing lids and
spout covers and have been approved by a nationally recognized testing
laboratory such as Factory Mutual Engineering Corp. or Underwriters
Laboratories, Inc., or Federal agencies such as Bureau of Mines, or
U.S. Coast Guard.
(b) Containers with a nominal capacity of less than 0.25 gallons or
more than 10.0 gallons are excluded.
(c) Containers designed and marketed solely to deliver fuel
directly to nonroad engines during engine operation, such as containers
with a connection for a fuel line and a reserve fuel area, are
considered to be nonroad fuel tanks, and are thus excluded.
Sec. 59.607 Submission of information.
(a) You are responsible for all statements you make to us related
to this subpart F, including information not required during
certification. You are required to provide truthful and complete
information. This subpart describes the consequences of failing to meet
this obligation. The consequences also may include prosecution under 18
U.S.C. 1001 and 42 U.S.C. 7431(c)(2).
(b) We may require an officer or authorized representative of your
company with knowledge of the information contained in the submittal to
approve and sign any submission of information to us, and to certify
that all the information submitted is accurate and complete.
Emission Standards and Related Requirements
Sec. 59.611 What evaporative emission requirements apply under this
subpart?
(a) Hydrocarbon emissions from portable fuel containers may not
exceed 0.3 grams per gallon per day when measured with the test
procedures in Sec. Sec. 59.650 through 59.653. This procedure measures
diurnal venting emissions and permeation emissions.
(b) For the purpose of this section, portable fuel containers
include spouts, caps, gaskets, and other parts provided with the
container.
(c) The following general requirements also apply for all portable
fuel containers subject to the standards of this subpart:
(1) Prohibited controls. The following controls are prohibited:
(i) For anyone to design, manufacture, or install emission control
systems so they cause or contribute to an unreasonable risk to public
health, welfare, or safety while operating.
(ii) For anyone to design, manufacture, or install emission control
systems with features that disable, deactivate, reduce effectiveness,
or bypass the emission controls, either actively or passively. For
example, you may not include a manual vent that the operator can open
to bypass emission controls. You may ask us to allow such features if
needed for safety reasons or if the features operate during emission
tests described in subpart F of this part.
(2) Leaks. You must design and manufacture your containers to be
free of leaks. This requirement applies when your container is upright,
partially inverted, or completely inverted.
(3) Refueling. You are required to design your portable fuel
containers to minimize spillage during refueling to the extent
practical. This requires that you use good engineering judgment to
avoid designs that will make it difficult to refuel typical vehicle and
equipment designs without spillage.
(d) Portable fuel containers must meet the standards and
requirements specified in this subpart throughout the useful life of
the container. The useful life of the container is five years beginning
on the date of sale to the ultimate purchaser.
Sec. 59.612 What emission-related warranty requirements apply to me?
(a) General requirements. You must warrant to the ultimate
purchaser that the new portable fuel container, including all parts of
its evaporative emission-control system, is:
(1) Designed, built, and equipped so it conforms at the time of
sale to the ultimate purchaser with the requirements of this subpart.
(2) Is free from defects in materials and workmanship that may keep
it from meeting these requirements.
(b) Warranty notice and period. Your emission-related warranty must
be valid for a minimum of one year from the date of sale to the
ultimate purchaser.
(c) Notice. You must provide a warranty notice with each container.
Sec. 59.613 What operation and maintenance instructions must I give
to buyers?
You must provide the ultimate purchaser of the new portable fuel
container written instructions for properly maintaining and using the
emission-control system.
Sec. 59.615 How must I label and identify the portable fuel
containers I produce?
This section describes how you must label your portable fuel containers.
(a) At the time of manufacture, indelibly mark the month and year
of manufacture on each container.
(b) Mold into or affix a legible label identifying each portable
fuel container. The label must be:
(1) Attached so it is not easily removable.
(2) Secured to a part of the container that can be easily viewed
when the can is in use, not on the bottom of the container.
(3) Written in English.
(c) The label must include:
(1) The heading ``EMISSION CONTROL INFORMATION''.
(2) Your full corporate name, trademark and warranty contact
information.
(3) A standardized identifier such as EPA's standardized designation
for the emission families, the model number, or the part number.
(4) This statement: ``THIS CONTAINER COMPLIES WITH U.S. EPA
EMISSION REGULATIONS FOR PORTABLE FUEL CONTAINERS (40 CFR Part 59).''.
(5) This statement: ``THE EMISSIONS WARRANTY IS VALID FOR A MINIMUM
OF ONE YEAR FROM DATE OF PURCHASE.''.
[[Page 8536]]
(d) You may add information to the emission control information
label to identify other emission standards that the container meets or
does not meet (such as California standards). You may also add other
information to ensure that the portable fuel container will be properly
maintained and used.
(e) You may request that we approve modified labeling requirements
in this subpart F if you show that it is necessary or appropriate. We
will approve your request if your alternate label is consistent with
the requirements of this subpart.
(f) You may identify the name and trademark of another company
instead of their own on your emission control information label,
subject to the following provisions:
(1) You must have a contractual agreement with the other company
that obligates that company to take the following steps:
(i) Meet the emission warranty requirements that apply under Sec.
59.612. This may involve a separate agreement involving reimbursement
of warranty-related expenses.
(ii) Report all warranty-related information to the certificate holder.
(2) In your application for certification, identify the company
whose trademark you will use and describe the arrangements you have
made to meet your requirements under this section.
(3) You remain responsible for meeting all the requirements of this
subpart.
Certifying Emission Families
Sec. 59.621 Who may apply for a certificate of conformity?
A certificate of conformity may be issued only to the manufacturer
that completes the construction of the portable fuel container. In
unusual circumstances, upon a petition by a manufacturer, we may allow
another manufacturer of the container to hold the certificate of
conformity. However, in order to hold the certificate, the manufacturer
must demonstrate day-to-day ability to ensure that containers produced
under the certificate will comply with the requirements of this subpart.
Sec. 59.622 What are the general requirements for obtaining a
certificate of conformity and producing portable fuel containers under it?
(a) You must send us a separate application for a certificate of
conformity for each emission family. A certificate of conformity for
containers is valid from the indicated effective date until the end of
the production period for which it is issued. We may require new
certification prior to the end of the production period if we finds
that containers are not meeting the standards in use during their
useful life.
(b) The application must be written in English and contain all the
information required by this subpart and must not include false or
incomplete statements or information (see Sec. Sec. 59.607 and 59.629).
(c) We may ask you to include less information than we specify in
this subpart, as long as you maintain all the information required by
Sec. 59.628.
(d) You must use good engineering judgment for all decisions
related to your application (see Sec. 59.603).
(e) An authorized representative of your company must approve and
sign the application.
(f) See Sec. 59.629 for provisions describing how we will process
your application.
(g) If we approve your application, we will issue a certificate
that will allow you to produce the containers that you described in
your application for a specified production period. Certificates do not
allow you to produce containers that were not described in your application,
unless we approve the additional containers under Sec. 59.624.
Sec. 59.623 What must I include in my application?
This section specifies the information that must be in your
application, unless we ask you to include less information under Sec.
59.622(c). We may require you to provide additional information to
evaluate your application.
(a) Describe the emission family's specifications and other basic
parameters of the emission controls. List each distinguishable
configuration in the emission family. Include descriptions and part
numbers for all detachable components such as spouts and caps.
(b) Describe and explain the method of emission control.
(c) Describe the products you selected for testing and the reasons
for selecting them.
(d) Describe the test equipment and procedures that you used, including
any special or alternate test procedures you used (see Sec. 59.650).
(e) List the specifications of the test fuel to show that it falls
within the required ranges specified in Sec. 59.650.
(f) Include the maintenance and use instructions and warranty
information you will give to the ultimate purchaser of each new
portable fuel container (see Sec. 59.613).
(g) Describe your emission control information label (see Sec. 59.615).
(h) State that your product was tested as described in the
application (including the test procedures, test parameters, and test
fuels) to show you meet the requirements of this subpart.
(i) Present emission data to show your products meet the applicable
emission standards. Where applicable, Sec. Sec. 59.626 and 59.627 may
allow you to submit an application in certain cases without new
emission data.
(j) Report all test results, including those from invalid tests or
from any other tests, whether or not they were conducted according to
the test procedures of Sec. Sec. 59.650 through 59.653. We may ask you
to send other information to confirm that your tests were valid under
the requirements of this subpart.
(k) Unconditionally certify that all the products in the emission
family comply with the requirements of this subpart, other referenced
parts of the CFR, and the Clean Air Act.
(l) Include estimates of U.S.-directed production volumes.
(m) Include the information required by other sections of this subpart.
(n) Include other relevant information, including any additional
information requested by EPA.
(o) Name an agent for service located in the United States. Service
on this agent constitutes service on you or any of your officers or
employees for any action by EPA or otherwise by the United States
related to the requirements of this subpart.
Sec. 59.624 How do I amend my application for certification?
Before we issue you a certificate of conformity, you may amend your
application to include new or modified configurations, subject to the
provisions of this section. After we have issued your certificate of
conformity, you may send us an amended application requesting that we
include new or modified configurations within the scope of the
certificate, subject to the provisions of this section. You must amend
your application if any changes occur with respect to any information
included in your application.
(a) You must amend your application before you take either of the
following actions:
(1) Add a configuration to an emission family. In this case, the
configuration added must be consistent with other configurations in the
emission family with respect to the criteria listed in Sec. 59.625.
(2) Change a configuration already included in an emission family
in a way that may affect emissions, or change any of the components you
described in
[[Page 8537]]
your application for certification. This includes production and design
changes that may affect emissions any time during the portable fuel
containers' lifetime.
(b) To amend your application for certification, send the
Designated Compliance Officer the following information:
(1) Describe in detail the addition or change in the configuration
you intend to make.
(2) Include engineering evaluations or data showing that the
amended emission family complies with all applicable requirements. You
may do this by showing that the original emission data are still
appropriate with respect to showing compliance of the amended family
with all applicable requirements.
(3) If the original emission data for the emission family are not
appropriate to show compliance for the new or modified configuration,
include new test data showing that the new or modified configuration
meets the requirements of this subpart.
(c) We may ask for more test data or engineering evaluations. You
must give us these within 30 days after we request them.
(d) For emission families already covered by a certificate of
conformity, we will determine whether the existing certificate of
conformity covers your new or modified configuration. You may ask for a
hearing if we deny your request (see Sec. 59.699).
(e) For emission families already covered by a certificate of
conformity and you send us a request to amend your application, you may
sell and distribute the new or modified configuration before we make a
decision under paragraph (d) of this section, subject to the provisions
of this paragraph. If we determine that the affected configurations do
not meet applicable requirements, we will notify you to cease
production of the configurations and any containers from the new or
modified configuration will not be considered covered by the
certificate. In addition, we may require you to recall any affected
containers that you have already distributed, including those sold to
the ultimate purchasers. Choosing to produce containers under this
paragraph (e) is deemed to be consent to recall all containers that we
determine do not meet applicable emission standards or other
requirements and to remedy the nonconformity at no expense to the
owner. If you do not provide information required under paragraph (c)
of this section within 30 days, you must stop producing the new or
modified containers.
Sec. 59.625 How do I select emission families?
(a) Divide your product line into families of portable fuel
containers that are expected to have similar emission characteristics
throughout the useful life.
(b) Group containers in the same emission family if they are the
same in all the following aspects:
(1) Type of material (including pigments, plasticizers, UV
inhibitors, or other additives that may affect control of emissions).
(2) Production method.
(3) Spout and cap design.
(4) Gasket material and design.
(5) Emission control strategy.
(c) You may subdivide a group of containers that is identical under
paragraph (b) of this section into different emission families if you
show the expected emission characteristics are different.
(d) You may group containers that are not identical with respect to
the things listed in paragraph (b) of this section in the same emission
family if you show that their emission characteristics will be similar
throughout their useful life.
Sec. 59.626 What emission testing must I perform for my application
for a certificate of conformity?
This section describes the emission testing you must perform to
show compliance with the emission standards in Sec. 59.611.
(a) Test your products using the procedures and equipment specified
in Sec. Sec. 59.650 through 59.653.
(b) Select an emission-data unit from each emission family for
testing. You must test a production sample or a preproduction product
that will represent actual production. Select the configuration that is
most likely to exceed (or have emissions nearest to) the applicable
emission standard. For example, for a family of multilayer portable
fuel containers, test the container with the thinnest barrier layer.
Test three identical containers.
(c) We may measure emissions from any of your products from the
emission family. You must supply your products to us if we choose to
perform confirmatory testing.
(d) You may ask to use emission data from a previous production
period (carryover) instead of doing new tests, but only if the
emission-data from the previous production period remains the
appropriate emission-data unit under paragraph (b) of this section. For
example, you may not carryover emission data for your family of containers
if you have added a thinner-walled container than was tested previously.
(e) We may require you to test a second unit of the same or
different configuration in addition to the unit tested under paragraph
(b) of this section.
(f) If you use an alternate test procedure under Sec. 59.652 and
later testing shows that such testing does not produce results that are
equivalent to the procedures specified in this subpart, we may reject
data you generated using the alternate procedure and base our
compliance determination on the later testing.
Sec. 59.627 How do I demonstrate that my emission family complies
with evaporative emission standards?
(a) For purposes of certification, your emission family is
considered in compliance with an evaporative emission standard in Sec.
59.611(a) if the test results from all portable fuel containers in the
family that have been tested show measured emissions levels that are at
or below the applicable standard.
(b) Your emissions family is deemed not to comply if any container
representing that family has test results showing an official emission
level above the standard.
(c) Round the measured emission level to the same number of decimal
places as the emission standard. Compare the rounded emission levels to
the emission standard.
Sec. 59.628 What records must I keep and what reports must I send to EPA?
(a) Organize and maintain the following records:
(1) A copy of all applications and any other information you send us.
(2) Any of the information we specify in Sec. 59.623 that you were
not required to include in your application.
(3) A detailed history of each emission-data unit. For each
emission-data unit, include all of the following:
(i) The emission-data unit's construction, including its origin and
buildup, steps you took to ensure that it represents production
containers, any components you built specially for it, and all the
components you include in your application for certification.
(ii) All your emission tests, including documentation on routine
and standard tests, as specified in Sec. Sec. 59.650 through 59.653,
and the date and purpose of each test.
(iii) All tests to diagnose emission-control performance, giving
the date and time of each and the reasons for the test.
[[Page 8538]]
(iv) Any other relevant events or information.
(4) Production figures for each emission family divided by assembly
plant.
(5) If you identify your portable fuel containers by lot number or
other identification numbers, keep a record of these numbers for all
the containers you produce under each certificate of conformity.
(b) Keep data from routine emission tests (such as test cell
temperatures and relative humidity readings) for one year after we
issue the associated certificate of conformity. Keep all other
information specified in paragraph (a) of this section for five years
after we issue your certificate.
(c) Store these records in any format and on any media, as long as
you can promptly send us organized, written records in English if we
ask for them. You must keep these records readily available. We may
review them at any time.
(d) Send us copies of any maintenance instructions or explanations
if we ask for them.
(e) Send us an annual warranty report summarizing successful
warranty claims by emission family under Sec. 59.612, including the
reason for the claim. You must submit the report by July 1 for the
preceding calendar year.
Sec. 59.629 What decisions may EPA make regarding my certificate of
conformity?
(a) If we determine your application is complete and shows that the
emission family meets all the requirements of this subpart and the Act,
we will issue a certificate of conformity for your emission family for
the specified production period. We may make the approval subject to
additional conditions.
(b) We may deny your application for certification if we determine
that your emission family fails to comply with emission standards or
other requirements of this subpart or the Act. Our decision may be
based on a review of all information available to us. If we deny your
application, we will explain why in writing.
(c) In addition, we may deny your application or suspend, revoke,
or void your certificate if you do any of the following:
(1) Refuse to comply with any testing or reporting requirements.
(2) Submit false or incomplete information.
(3) Render inaccurate any test data.
(4) Deny us from completing authorized activities (see Sec.
59.698). This includes a failure to provide reasonable assistance.
(5) Produce portable fuel containers for importation into the
United States at a location where local law prohibits us from carrying
out authorized activities.
(6) Fail to supply requested information or amend your application
to include all portable fuel containers being produced.
(7) Take any action that otherwise circumvents the intent of the
Act or this subpart.
(d) If we deny your application or suspend, revoke, or void your
certificate, you may ask for a hearing (see Sec. 59.699).
Sec. 59.630 EPA testing.
We may test any portable fuel container subject to the standards of
this subpart.
(a) Certification and production sample testing. Upon our request,
a manufacturer must supply a prototype container or a reasonable number
of production samples to us for verification testing. These samples
will generally be tested using the full test procedure of Sec. 59.653.
(b) In-use testing. We may test in-use containers using the test
procedure of Sec. 59.653 without preconditioning.
Sec. 59.650 General testing provisions.
(a) The test procedures of this subpart are addressed to you as a
manufacturer, but they apply equally to anyone who does testing for you.
(b) Unless we specify otherwise, the terms ``procedures'' and
``test procedures'' in this subpart include all aspects of testing,
including the equipment specifications, calibrations, calculations, and
other protocols and procedural specifications needed to measure emissions.
(c) The specification for gasoline to be used for testing is given
in 40 CFR 1065.710. Use the grade of gasoline specified for general
testing. Blend this grade of gasoline with reagent grade ethanol in a
volumetric ratio of 90.0 percent gasoline to 10.0 percent ethanol. You
may use ethanol that is less pure if you can demonstrate that it will
not affect your ability to demonstrate compliance with the applicable
emission standards.
(d) Accuracy and precision of all temperature measurements must be
±2.2[deg] C or better.
(e) Accuracy and precision of mass balances must be sufficient to
ensure accuracy and precision of two percent or better for emission
measurements for products at the maximum level allowed by the standard.
The readability of the display may not be coarser than half of the
required accuracy and precision.
Sec. 59.652 Other procedures.
(a) Your testing. The procedures in this subpart apply for all
testing you do to show compliance with emission standards, with certain
exceptions listed in this section.
(b) Our testing. These procedures generally apply for testing that
we do to determine if your portable fuel containers complies with
applicable emission standards. We may perform other testing as allowed
by the Act.
(c) Exceptions. We may allow or require you to use procedures other
than those specified in this subpart as follows:
(1) You may request to use special procedures if your portable fuel
containers cannot be tested using the specified procedures. We will
approve your request if we determine that it would produce emission
measurements that represent in-use operation and we determine that it
can be used to show compliance with the requirements of Sec. 59.611.
(2) You may ask to use emission data collected using other
procedures, such as those of the California Air Resources Board. We
will approve this only if you show us that using these other procedures
do not affect your ability to show compliance with the applicable
emission standards. This generally requires emission levels to be far
enough below the applicable emission standards so that any test
differences do not affect your ability to state unconditionally that
your containers will meet all applicable emission standards when tested
using the specified test procedures.
(3) You may request to use alternate procedures that are equivalent
to allowed procedures, or more accurate or more precise than allowed
procedures.
(4) You may not use other procedures under this paragraph (c) until
we approve your request.
Sec. 59.653 How do I test portable fuel containers?
You must test the portable fuel container as described in your
application, with the applicable spout attached except as otherwise
noted. Tighten fittings in a manner representative of how they would be
tightened by a typical user.
(a) Preconditioning for durability. Complete the following steps
before an emissions test, in any order, unless we determine that
omission of one or more of these durability steps will not affect the
emissions from your container.
(1) Pressure cycling. Perform a pressure test by sealing the
container and cycling it between +13.8 and -1.7 kPa (+2.0 and -0.5
psig) for 10,000
[[Page 8539]]
cycles at a rate of 60 seconds per cycle. For this test, the spout may
be removed and the pressure applied through the opening where the spout
attaches. The purpose of this test is to represent environmental wall
stresses caused by pressure changes and other factors (such as
vibration or thermal expansion). If your container cannot be tested
using the pressure cycles specified by this paragraph (a)(1), you may
ask to use special test procedures under Sec. 59.652(c).
(2) UV exposure. Perform a sunlight-exposure test by exposing the
container to an ultraviolet light of at least 24 W/m2 (0.40
W-hr/m2/min) on the container surface for at least 450
hours. Alternatively, the container may be exposed to direct natural
sunlight for an equivalent period of time, as long as you ensure that
the container is exposed to at least 450 daylight hours.
(3) Slosh testing. Perform a slosh test by filling the portable
fuel container to 40 percent of its capacity with the fuel specified in
paragraph (e) of this section and rocking it at a rate of 15 cycles per
minute until you reach one million total cycles. Use an angle deviation
of +15[deg] to -15[deg] from level.
(4) Spout actuation. Perform the following spout actuation and
inversion steps at the end on the slosh testing, and at the end of the
preconditioning soak.
(i) Perform one complete actuation/inversion cycle per day for ten days.
(ii) One actuation/inversion cycle consists of the following steps:
(A) Remove and replace the spout to simulate filling the container.
(B) Slowly invert the container and keep it inverted for at least 5
seconds to ensure that the spout and mechanisms become saturated with
fuel. Any fuel leaking from any part of the container will denote a
leak and must be reported as part of certification. Once completed,
place the container on a flat surface in the upright position.
(C) Actuate the spout by fully opening and closing without
dispensing fuel. The spout must return to the closed position without
the aid of the operator (e.g., pushing or pulling the spout closed).
Repeat for a total of 10 actuations. If at any point the spout fails to
return to the closed position, the container fails the test.
(D) Repeat the step contained in paragraph (a)(4)(ii)(B) of this
section (i.e., the inversion step).
(E) Repeat the steps contained in paragraph (a)(4)(ii)(C) of this
section (i.e., ten actuations).
(b) Preconditioning fuel soak. Complete the following steps before
a diurnal emission test:
(1) Fill the portable fuel container with the specified fuel to its
nominal capacity, seal it using the spout, and allow it to soak at 28
±5[deg] C for 20 weeks. Alternatively, the container may be
soaked for 10 weeks at 43 ±5[deg] C. You may count the time
of the preconditioning steps in paragraph (a) of this section as part
of the preconditioning fuel soak, as long as the ambient temperature
remains within the specified temperature range and the fuel tank is at
least 40 percent full; you may add or replace fuel as needed to conduct
the specified durability procedures.
(2) Pour the fuel out of the container and immediately refill to 50
percent of nominal capacity. Be careful to not spill any fuel on the
container. Wipe the outside of the container as needed to remove any
liquid fuel that may have spilled on it.
(3) Install the spout assembly that will be used in the production
containers. The spout and other openings (such as vents) on the
container must be tested in their open condition unless they close
automatically and are unlikely to be left open by the user during
typical storage. All manual closures such as caps must be left off the
container and spout during testing.
(c) Reference container. A reference container is required to
correct for buoyancy effects that may occur during testing. Prepare the
reference tank as follows:
(1) Obtain a second container of the same model as the test tank.
You may not use a container that has previously contained fuel or any
other contents that might affect the stability of its mass.
(2) Fill the reference container with enough dry sand (or other
inert material) so that the mass of the reference container is
approximately the same as the test container when filled with fuel. Use
good engineering judgment to determine how similar the mass of the
reference container needs to be to the mass of the test container
considering the performance characteristics of your balance.
(3) Ensure that the sand (or other inert material) is dry. This may
require heating the container or applying a vacuum to it.
(4) Seal the container.
(d) Diurnal test run. To run the test, take the following steps for
a portable fuel container that was preconditioned as specified in
paragraph (a) of this section.
(1) Stabilize the fuel temperature within the portable fuel container
at 22.2 [deg]C. Vent the container at this point to relieve any positive
or negative pressure that may have developed during stabilization.
(2) Weigh the sealed reference container and record the weight.
Place the reference on the balance and tare it so that it reads zero.
Place the sealed test container on the balance and record the
difference between the test container and the reference container. This
value is Minitial Take this measurement within 8 hours of
filling the test container with fuel as specified in paragraph (b)(2)
of this section.
(3) Immediately place the portable fuel container within a well
ventilated, temperature-controlled room or enclosure. Do not spill or
add any fuel.
(4) Close the room or enclosure.
(5) Follow the temperature profile in the following table for all
portable fuel containers. Use good engineering judgment to follow this
profile as closely as possible. You may use linearly interpolated
temperatures or a spline fit for temperatures between the hourly setpoints.
Table 1 of Sec. 59.653--Diurnal Temperature Profile for Portable Fuel
Containers
------------------------------------------------------------------------
Ambient
Temperature
Time (hours) ([deg]C)
Profile
------------------------------------------------------------------------
0.......................................................... 22.2
1.......................................................... 22.5
2.......................................................... 24.2
3.......................................................... 26.8
4.......................................................... 29.6
5.......................................................... 31.9
6.......................................................... 33.9
7.......................................................... 35.1
8.......................................................... 35.4
9.......................................................... 35.6
10......................................................... 35.3
11......................................................... 34.5
12......................................................... 33.2
13......................................................... 31.4
14......................................................... 29.7
15......................................................... 28.2
16......................................................... 27.2
17......................................................... 26.1
18......................................................... 25.1
19......................................................... 24.3
20......................................................... 23.7
21......................................................... 23.3
22......................................................... 22.9
23......................................................... 22.6
24......................................................... 22.2
------------------------------------------------------------------------
(6) At the end of the diurnal period, retare the balance using the
reference container and weigh the portable fuel container. Record the
difference in mass between the reference container and the test. This
value is Mfinal.
(7) Subtract Mfinal from Minitial and divide
the difference by the nominal capacity of the container (using at least
three significant figures) to calculate the g/gallon/day emission rate
as follows:
[[Page 8540]]
Emission rate = (Minitial--Mfinal)/(nominal
capacity)/(one day)
(8) Round your result to the same number of decimal places as the
emission standard.
(9) Instead of determining emissions by weighing the container
before and after the diurnal temperature cycle, you may place the
container in a SHED meeting the specifications of 40 CFR 86.107-
96(a)(1) and measure emissions directly. Immediately following the
stabilization in paragraph (d)(1) of this section, purge the SHED and
follow the temperature profile from paragraph (d)(4) of this section.
Start measuring emissions when you start the temperature profile and
stop measuring emissions when the temperature profile concludes.
(e) For metal containers, you may demonstrate for certification
that your portable fuel containers comply with the evaporative emission
standards without performing the pre-soak or container durability
cycles (i.e., the pressure cycling, UV exposure, and slosh testing)
specified in this section. For other containers, you may demonstrate
compliance without performing the durability cycles specified in this
section only if we approve it after you have presented data clearly
demonstrating that the cycle or cycles do not negatively impact the
permeation rate of the materials used in the containers.
Special Compliance Provisions
Sec. 59.660 Exemption from the standards.
In certain circumstances, we may exempt portable fuel containers
from the evaporative emission standards and requirements of Sec.
59.611 and the prohibitions and requirements of Sec. 59.602. You do
not need an exemption for any containers that you own but do not sell,
offer for sale, introduce or deliver for introduction into U.S.
commerce, or import into the United States. Submit your request for an
exemption to the Designated Compliance Officer.
(a) Portable fuel containers that are intended for export only and
are in fact exported are exempt provided they are clearly labeled as
being for export only. Keep records for five years of all portable fuel
containers that you manufacture for export. Any introduction into U.S.
commerce of such portable fuel containers for any purpose other than
export is considered to be a violation of Sec. 59.602 by the
manufacturer. You do not need to request this exemption.
(b) You may ask us to exempt portable fuel containers that you will
purchase, sell, or distribute for the sole purpose of testing them.
(c) You may ask us to exempt portable fuel containers for the
purpose of national security, as long as your request is endorsed by an
agency of the federal government responsible for national defense. In
your request, explain why you need the exemption.
(d) You may ask us to exempt containers that are designed and
marketed solely for rapidly refueling racing applications which are
designed to create a leak proof seal with the target tank or are
designed to connect with a receiver installed on the target tank. This
exemption is generally intended for containers used to rapidly refuel a
race car during a pit stop and similar containers. In your request,
explain how why these containers are unlikely to be used for nonracing
applications. We may limit these exemptions to those applications that
are allowed to use gasoline exempted under 40 CFR 80.200(a).
(e) EPA may impose reasonable conditions on any exemption, including
a limit on the number of containers that are covered by an exemption.
Sec. 59.662 What temporary provisions address hardship due to unusual
circumstances?
(a) After considering the circumstances, we may exempt you from the
evaporative emission standards and requirements of Sec. 59.611 of this
subpart and the prohibitions and requirements of Sec. 59.602 for
specified portable fuel containers that do not comply with emission
standards if all the following conditions apply:
(1) Unusual circumstances that are clearly outside your control and
that could not have been avoided with reasonable discretion prevent you
from meeting requirements from this subpart.
(2) You exercised prudent planning and were not able to avoid the
violation; you have taken all reasonable steps to minimize the extent
of the nonconformity.
(3) Not having the exemption will jeopardize the solvency of your
company.
(4) No other allowances are available under the regulations in this
chapter to avoid the impending violation, including the provisions of
Sec. 59.663.
(b) To apply for an exemption, you must send the Designated
Compliance Officer a written request as soon as possible before you are
in violation. In your request, show that you meet all the conditions
and requirements in paragraph (a) of this section.
(c) Include in your request a plan showing how you will meet all
the applicable requirements as quickly as possible.
(d) You must give us other relevant information if we ask for it.
(e) We may include reasonable additional conditions on an approval
granted under this section, including provisions to recover or
otherwise address the lost environmental benefit or paying fees to
offset any economic gain resulting from the exemption.
(f) We may approve renewable extensions of up to one year. We may
review and revise an extension as reasonable under the circumstances.
(g) Add a legible label, written in English, to a readily visible
part of each container exempted under this section. This label must
prominently include at least the following items:
(1) Your corporate name and trademark.
(2) The statement ``EXEMPT UNDER 40 CFR 59.662.''.
Sec. 59.663 What are the provisions for extending compliance
deadlines for manufacturers under hardship?
(a) After considering the circumstances, we may extend the
compliance deadline for you to meet new emission standards, as long as
you meet all the conditions and requirements in this section.
(b) To apply for an extension, you must send the Designated
Compliance Officer a written request. In your request, show that all
the following conditions and requirements apply:
(1) You have taken all possible business, technical, and economic
steps to comply.
(2) Show that the burden of compliance costs prevents you from
meeting the requirements of this subpart by the required compliance date.
(3) Not having the exemption will jeopardize the solvency of your
company.
(4) No other allowances are available under the regulations in this
subpart to avoid the impending violation.
(c) In describing the steps you have taken to comply under
paragraph (b)(1) of this section, include at least the following
information:
(1) Describe your business plan, showing the range of projects
active or under consideration.
(2) Describe your current and projected financial standing, with
and without the burden of complying in full with the applicable
regulations in this subpart by the required compliance date.
(3) Describe your efforts to raise capital to comply with
regulations in this subpart.
(4) Identify the engineering and technical steps you have taken or plan
[[Page 8541]]
to take to comply with regulations in this subpart.
(5) Identify the level of compliance you can achieve. For example,
you may be able to produce containers that meet a somewhat less
stringent emission standard than the regulations in this subpart require.
(d) Include in your request a plan showing how you will meet all
the applicable requirements as quickly as possible.
(e) You must give us other relevant information if we ask for it.
(f) An authorized representative of your company must sign the
request and include the statement: ``All the information in this
request is true and accurate, to the best of my knowledge.''.
(g) Send your request for this extension at least nine months
before the relevant deadline.
(h) We may include reasonable requirements on an approval granted
under this section, including provisions to recover or otherwise
address the lost environmental benefit. For example, we may require
that you meet a less stringent emission standard.
(i) We may approve renewable extensions of up to one year. We may
review and revise an extension as reasonable under the circumstances.
(j) Add a permanent, legible label, written in English, to a
readily visible part of each container exempted under this section.
This label must prominently include at least the following items:
(1) Your corporate name and trademark.
(2) The statement ``EXEMPT UNDER 40 CFR 59.663.''.
Sec. 59.664 What are the requirements for importing portable fuel
containers into the United States?
As specified in this section, we may require you to post a bond if
you import into the United States containers that are subject to the
standards of this subpart. See paragraph (f) of this section for the
requirements related to importing containers that have been certified
by someone else.
(a) Prior to importing containers into the U.S., we may require you
to post a bond to cover any potential compliance or enforcement actions
under the Clean Air Act if you cannot demonstrate to us that you have
assets of an appropriate liquidity readily available in the United
States with a value equal to the retail value of the containers that
you will import during the calendar year.
(b) We may set the value of the bond up to five dollars per container.
(c) You may meet the bond requirements of this section by obtaining
a bond from a third-party surety that is cited in the U.S. Department
of Treasury Circular 570, ``Companies Holding Certificates of Authority
as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring
Companies'' (http://www.fms.treas.gov/c570/c570.html#certified).
(d) If you forfeit some or all of your bond in an enforcement
action, you must post any appropriate bond for continuing importation
within 90 days after you forfeit the bond amount.
(e) You will forfeit the proceeds of the bond posted under this
section if you need to satisfy any United States administrative final
order or judicial judgment against you arising from your conduct in
violation of this subpart.
(f) This paragraph (f) applies if you import for resale containers
that have been certified by someone else. You and the certificate
holder are each responsible for compliance with the requirements of
this subpart and the Clean Air Act. No bond is required under this
section if either you or the certificate holder meet the conditions in
paragraph (a) of this section. Otherwise, the importer must comply with
the bond requirements of this section.
Definitions and Other Reference Information
Sec. 59.680 What definitions apply to this subpart?
The following definitions apply to this subpart. The definitions
apply to all subparts unless we note otherwise. All undefined terms
have the meaning the Act gives to them. The definitions follow:
Act means the Clean Air Act, as amended, 42 U.S.C. 7401-7671q.
Adjustable parameter means any device, system, or element of design
that someone can adjust and that, if adjusted, may affect emissions.
You may ask us to exclude a parameter if you show us that it will not
be adjusted in use in a way that affects emissions.
Certification means relating to the process of obtaining a
certificate of conformity for an emission family that complies with the
emission standards and requirements in this subpart.
Configuration means a unique combination of hardware (material,
geometry, and size) and calibration within an emission family. Units
within a single configuration differ only with respect to normal
production variability.
Container means portable fuel container.
Designated Compliance Officer means the Manager, Engine Programs
Group (6403-J), U.S. Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460.
Designated Enforcement Officer means the Director, Air Enforcement
Division (2242A), U.S. Environmental Protection Agency, 1200
Pennsylvania Ave., NW.,Washington, DC 20460.
Emission-control system means any device, system, or element of
design that controls or reduces the regulated evaporative emissions from.
Emission-data unit means a portable fuel container that is tested
for certification. This includes components tested by EPA.
Emission-related maintenance means maintenance that substantially
affects emissions or is likely to substantially affect emission
deterioration.
Emission family has the meaning given in Sec. 59.625.
Evaporative means relating to fuel emissions that result from
permeation of fuel through the portable fuel container materials and
from ventilation of the container.
Good engineering judgment means judgments made consistent with
generally accepted scientific and engineering principles and all
available relevant information. See Sec. 59.603 for the administrative
process we use to evaluate good engineering judgment.
Hydrocarbon (HC) means total hydrocarbon (THC).
Manufacture means the physical and engineering process of designing
and/or constructing a portable fuel container.
Manufacturer means any person who manufactures a portable fuel
container for sale in the United States.
Nominal capacity means the expected volumetric working capacity of
a container.
Official emission result means the measured emission rate for an
emission-data unit.
Portable fuel container means any reusable container designed and
marketed (or otherwise intended) for use by consumers for receiving,
transporting, storing, and dispensing gasoline, diesel fuel, or
kerosene. For the purpose of this subpart, all utility jugs that are
red, yellow or blue in color are deemed to be portable fuel containers,
regardless of how they are labeled or marketed.
Production period means the period in which a portable fuel
container will be produced under a certificate of conformity. The
maximum production period is five years.
Revoke means to terminate the certificate or an exemption for an
emission family. If we revoke a certificate or exemption, you must
apply for a new certificate or exemption before continuing to introduce
the affected
[[Page 8542]]
containers into commerce. This does not apply to containers you no
longer possess.
Round has the meaning given in 40 CFR 1065.1001.
Suspend means to temporarily discontinue the certificate or an
exemption for an emission family. If we suspend a certificate, you may
not introduce into commerce portable fuel containers from that emission
family unless we reinstate the certificate or approve a new one. If we
suspend an exemption, you may not introduce into commerce containers
that were previously covered by the exemption unless we reinstate the
exemption.
Total hydrocarbon means the combined mass of organic compounds
measured by the specified procedure for measuring total hydrocarbon,
expressed as a hydrocarbon with a hydrogen-to-carbon mass ratio of 1.85:1.
Ultimate purchaser means, with respect to any portable fuel
container, the first person who in good faith purchases such a
container for purposes other than resale.
Ultraviolet light means electromagnetic radiation with a wavelength
between 300 and 400 nanometers.
United States means the States, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana
Islands, Guam, American Samoa, and the U.S. Virgin Islands.
U.S.-directed production volume means the amount of portable fuel
containers, subject to the requirements of this subpart, produced by a
manufacturer for which the manufacturer has a reasonable assurance that
sale was or will be made to ultimate purchasers in the United States.
Useful life means the period during which a portable fuel container
is required to comply with all applicable emission standards. See Sec.
59.611.
Void means to invalidate a certificate or an exemption ab initio
(i.e. retroactively). Portable fuel containers introduced into U.S.
commerce under the voided certificate or exemption is a violation of
this subpart, whether or not they were introduced before the
certificate or exemption was voided.
We (us, our) means the Administrator of the Environmental
Protection Agency and any authorized representatives.
Sec. 59.685 What symbols, acronyms, and abbreviations does this
subpart use?
The following symbols, acronyms, and abbreviations apply to this
subpart:
CFR Code of Federal Regulations
EPA Environmental Protection Agency
HC hydrocarbon
NIST National Institute of Standards and Technology
THC total hydrocarbon
U.S.C. United States Code
Sec. 59.695 What provisions apply to confidential information?
(a) Clearly show what you consider confidential by marking,
circling, bracketing, stamping, or some other method.
(b) We will store your confidential information as described in 40
CFR part 2. Also, we will disclose it only as specified in 40 CFR part
2. This applies both to any information you send us and to any
information we collect from inspections, audits, or other site visits.
(c) If you send us a second copy without the confidential
information, we will assume it contains nothing confidential whenever
we need to release information from it.
(d) If you send us information without claiming it is confidential,
we may make it available to the public without further notice to you,
as described in 40 CFR 2.204.
Sec. 59.697 State actions.
The provisions in this subpart do not preclude any State or any
political subdivision of a State from:
(a) Adopting and enforcing any emission standard or limitation
applicable to anyone subject to the provisions of this part; or
(b) Requiring the regulated entity to obtain permits, licenses, or
approvals prior to initiating construction, modification, or operation
of a facility for manufacturing a consumer product.
Sec. 59.698 May EPA enter my facilities for inspections?
(a) We may inspect your portable fuel containers, testing,
manufacturing processes, storage facilities (including port facilities
for imported containers or other relevant facilities), or records, as
authorized by the Act, to enforce the provisions of this subpart.
Inspectors will have authorizing credentials and will limit inspections
to reasonable times--usually, normal operating hours.
(b) If we come to inspect, we may or may not have a warrant or
court order.
(1) If we do not have a warrant or court order, you may deny us entry.
(2) If we have a warrant or court order, you must allow us to enter
the facility and carry out the activities it describes.
(c) We may seek a warrant or court order authorizing an inspection
described in this section, whether or not we first tried to get your
permission to inspect.
(d) We may select any facility to do any of the following:
(1) Inspect and monitor any aspect of portable fuel container
manufacturing, assembly, storage, or other procedures, and any
facilities where you do them.
(2) Inspect and monitor any aspect of test procedures or test-
related activities, including test container selection, preparation,
durability cycles, and maintenance and verification of your test
equipment's calibration.
(3) Inspect and copy records or documents related to assembling,
storing, selecting, and testing a container.
(4) Inspect and photograph any part or aspect of containers or
components use for assembly.
(e) You must give us reasonable help without charge during an
inspection authorized by the Act. For example, you may need to help us
arrange an inspection with the facility's managers, including clerical
support, copying, and translation. You may also need to show us how the
facility operates and answer other questions. If we ask in writing to
see a particular employee at the inspection, you must ensure that he or
she is present (legal counsel may accompany the employee).
(f) If you have facilities in other countries, we expect you to
locate them in places where local law does not keep us from inspecting
as described in this section. We will not try to inspect if we learn
that local law prohibits it, but we may suspend your certificate if we
are not allowed to inspect.
Sec. 59.699 How do I request a hearing?
(a) You may request a hearing under certain circumstances, as
described elsewhere in this subpart. To do this, you must file a
written request with the Designated Compliance Officer, including a
description of your objection and any supporting data, within 30 days
after we make a decision.
(b) For a hearing you request under the provisions of this subpart,
we will approve your request if we find that your request raises a
substantial factual issue.
(c) If we agree to hold a hearing, we will use the procedures
specified in 40 CFR part 1068, subpart G.
PART 80--REGULATION OF FUELS AND FUEL ADDITIVES
? 3. The authority citation for part 80 is revised to read as follows:
Authority: 42 U.S.C. 7414, 7521(1), 7545 and 7601(a).
[[Page 8543]]
Subpart D--[Amended]
? 4. Section 80.41 is amended as follows:
? a. By redesignating paragraph (e) as paragraph (e)(1).
? b. By adding paragraphs (e)(2) and (e)(3).
? c. By redesignating paragraph (f) as paragraph (f)(1).
? d. By adding paragraphs (f)(2) and (f)(3).
Sec. 80.41 Standards and requirements for compliance.
* * * * *
(e) * * *
(2)(i) The NOX emissions performance reduction specified
in paragraph (e)(1) of this section shall no longer apply beginning
January 1, 2007, except as provided in paragraph (e)(2)(ii) of this section.
(ii) For a refiner subject to the small refiner gasoline sulfur
standards at Sec. 80.240, the NOX emissions performance
reduction specified in paragraph (e)(1) of this section shall no longer
apply beginning January 1, 2008. For a refiner subject to the gasoline
sulfur standards at Sec. 80.240 that has received an extension of its
small refiner gasoline sulfur standards under Sec. 80.553, the
NOX emissions performance reduction specified in paragraph
(e)(1) of this section shall no longer apply beginning January 1, 2011.
(3)(i) Beginning January 1, 2011, or January 1, 2015 for small
refiners approved under Sec. 80.1340, the toxic air pollutants
emissions performance reduction and benzene content specified in
paragraph (e)(1) of this section shall apply to reformulated gasoline
that is not subject to the benzene standard of Sec. 80.1230, pursuant
to the provisions of Sec. 80.1235.
(ii) The toxic air pollutants emissions performance reduction and
benzene content specified in paragraph (e)(1) of this section shall not
apply to reformulated gasoline produced by a refinery approved under
Sec. 80.1334, pursuant to Sec. 80.1334(c).
(f) * * *
(2)(i) The NOX emissions performance reduction specified
in paragraph (f)(1) of this section shall no longer apply beginning
January 1, 2007, except as provided in paragraph (f)(2)(ii) of this section.
(ii) For a refiner subject to the small refiner gasoline sulfur
standards at Sec. 80.240, the NOX emissions performance
reduction specified in paragraph (f)(1) of this section shall no longer
apply beginning January 1, 2008. For a refiner subject to the gasoline
sulfur standards at Sec. 80.240 that has received an extension of its
small refiner gasoline sulfur standards under Sec. 80.553, the
NOX emissions performance reduction specified in paragraph
(f)(1) of this section shall no longer apply beginning January 1, 2011.
(3)(i) Beginning January 1, 2011, or January 1, 2015 for small
refiners approved under Sec. 80.1340, the toxic air pollutants
emissions performance reduction and benzene content specified in
paragraph (f)(1) of this section shall apply only to reformulated
gasoline that is not subject to the benzene standard of Sec. 80.1230,
pursuant to the provisions of Sec. 80.1235.
(ii) The toxic air pollutants emissions performance reduction and
benzene content specified in paragraph (f)(1) of this section shall not
apply to reformulated gasoline produced by a refinery approved under
Sec. 80.1334, pursuant to Sec. 80.1334(c).
* * * * *
? 5. Section 80.68 is amended as follows:
? a. By redesignating paragraphs (a) through (c) as paragraphs (b)
through (d), respectively.
? b. By adding new paragraph (a).
? c. In newly designated paragraph (b)(2) revise the reference ``(c)'' to
read ``(d)''.
? d. In newly designated paragraph (c) introductory text revise the
reference ``(a)'' to read ``(b)''.
? e. In newly designated paragraph (c)(2)(i) revise the reference
``(b)(1)'' to read ``(c)(1)''.
? f. In newly designated paragraph (c)(2)(ii) revise the reference
``(c)'' to read ``(d)'', revise all references ``(b)(1)'' to read
``(c)(1)'', and revise all references ``(b)(2)(i)'' to read ``(c)(2)(i)''.
? g. In newly designated paragraph (c)(3) revise the reference ``(c)'' to
read ``(d)''.
? h. In newly designated paragraph (c)(4)(i) revise the reference ``(a)''
to read ``(b)''.
? i. In newly designated paragraph (d)(1)(ii)(A) revise the reference
``(c)(6)'' to read ``(d)(6)''.
? j. In newly designated paragraph (d)(1)(ii)(B) revise the reference
``(c)(6)'' to read ``(d)(6)''.
? k. In newly designated paragraph (d)(2)(i) revise the reference
``(c)(6)'' to read ``(d)(6)''.
? l. In newly designated paragraph (d)(8)(i)(C) revise the reference
``(c)(8)(i)(B)'' to read ``(d)(8)(i)(B)''.
? m. In newly designated paragraph (d)(9)(ii)(B) revise the reference
``(c)(9)(i)(B)'' to read ``(d)(9)(i)(B)''.
? n. In newly designated paragraph (d)(10)(v) revise the reference
``(c)(10)(iv)'' to read ``(d)(10)(iv)''.
? o. In newly designated paragraph (d)(11)(ii) revise the reference
``(c)(11)(i)'' to read ``(d)(11)(i)''.
? p. In newly designated paragraph (d)(13)(v)(G) revise the reference
``(c)(8)(i)'' to read ``(d)(8)(i)''.
Sec. 80.68 Compliance surveys.
(a)(1) Beginning January 1, 2007, the compliance surveys for NOX
emissions performance under this section shall cease to be required.
(2) Beginning January 1, 2011, the compliance surveys for toxics
emissions performance under this section shall cease to be required.
* * * * *
Subpart E--[Amended]
? 6. Section 80.101 is amended by adding paragraphs (c)(3) and (c)(4) to
read as follows:
Sec. 80.101 Standards applicable to refiners and importers.
* * * * *
(c) * * *
(3)(i) The NOX emissions standard specified in paragraph
(b)(3)(i) of this section shall no longer apply beginning January 1,
2007, except as provided in paragraph (c)(3)(ii) of this section.
(ii) For a refiner subject to the small refiner gasoline sulfur
standards at Sec. 80.240, the NOX emissions standard
specified in paragraph (b)(3)(i) of this section shall no longer apply
beginning January 1, 2008. For a refiner subject to the gasoline sulfur
standards at Sec. 80.240 that has received an extension of its small
refiner gasoline sulfur standards under Sec. 80.553, the
NOX emissions standard specified in paragraph (b)(3)(i) of
this section shall no longer apply beginning January 1, 2011.
(4)(i) Beginning January 1, 2011, or January 1, 2015 for small
refiners approved under Sec. 80.1340, the exhaust toxics emissions
standard specified in paragraph (b)(3)(i) of this section shall apply
only to conventional gasoline that is not subject to the benzene
standard of Sec. 80.1230, pursuant to the provisions of Sec. 80.1235.
(ii) The exhaust toxic emissions standard specified in paragraph
(b)(3)(i) of this section shall not apply to conventional gasoline produced
by a refinery approved under Sec. 80.1334, pursuant to Sec. 80.1334(c).
* * * * *
Subpart F--[Amended]
? 7. Section 80.128 is amended by revising paragraph (a) to read as follows:
[[Page 8544]]
Sec. 80.128 Alternative agreed upon procedures for refiners and importers.
* * * * *
(a) Read the refiner's or importer's reports filed with EPA for the
previous year as required by Sec. Sec. 80.75, 80.83(g), 80.105, 80.990
and 80.1354.
* * * * *
Subpart J--[Amended]
? 8. Section 80.815 is amended by redesignating paragraph (d)(1) as
paragraph (d)(1)(i) and adding paragraph (d)(1)(ii) to read as follows:
Sec. 80.815 What are the gasoline toxics performance requirements for
refiners and importers?
* * * * *
(d) * * *
(1) * * *
(ii)(A) Beginning January 1, 2011, or January 1, 2015 for small
refiners approved under Sec. 80.1340, the gasoline toxics performance
requirements of this subpart shall apply only to gasoline that is not
subject to the benzene standard of Sec. 80.1230, pursuant to the
provisions of Sec. 80.1235.
(B) The gasoline toxics performance requirements of this subpart
shall not apply to gasoline produced by a refinery approved under Sec.
80.1334, pursuant to Sec. 80.1334(c).
* * * * *
? 9. Section 80.1035 is amended by adding paragraph (h) to read as follows:
Sec. 80.1035 What are the attest engagement requirements for gasoline
toxics compliance applicable to refiners and importers?
* * * * *
(h) Beginning January 1, 2011, or January 1, 2015 for small
refiners approved per Sec. 80.1340, the requirements of this section
shall apply only to gasoline that is not subject to the benzene
standard of Sec. 80.1230, pursuant to the provisions of Sec. 80.1235.
? 10. Subpart L is added to read as follows:
Subpart L--Gasoline Benzene
Sec.
80.1200-80.1219 [Reserved]
General Information
80.1220 What are the implementation dates for the gasoline benzene program?
80.1225 Who must register with EPA under the gasoline benzene program?
Gasoline Benzene Requirements
80.1230 What are the gasoline benzene requirements for refiners and
importers?
80.1235 What gasoline is subject to the benzene requirements of this
subpart?
80.1236 What requirements apply to California gasoline?
80.1238 How is a refinery's or importer's average benzene
concentration determined?
80.1240 How is a refinery's or importer's compliance with the
gasoline benzene requirements of this subpart determined?
Averaging, Banking and Trading (ABT) Program
80.1270 Who may generate benzene credits under the ABT program?
80.1275 How are early benzene credits generated?
80.1280 How are refinery benzene baselines calculated?
80.1285 How does a refiner apply for a benzene baseline?
80.1290 How are standard benzene credits generated?
80.1295 How are gasoline benzene credits used?
Hardship Provisions
80.1334 What are the requirements for early compliance with the
gasoline benzene program?
80.1335 Can a refiner seek relief from the requirements of this subpart?
80.1336 What if a refiner or importer cannot produce gasoline
conforming to the requirements of this subpart?
Small Refiner Provisions
80.1338 What criteria must be met to qualify as a small refiner for
the gasoline benzene requirements of this subpart?
80.1339 Who is not eligible for the provisions for small refiners?
80.1340 How does a refiner obtain approval as a small refiner?
80.1342 What compliance options are available to small refiners
under this subpart?
80.1343 What hardship relief provisions are available only to small
refiners?
80.1344 What provisions are available to a non-small refiner that
acquires one or more of a small refiner's refineries?
Sampling, Testing and Retention Requirements
80.1347 What are the sampling and testing requirements for refiners
and importers?
80.1348 What gasoline sample retention requirements apply to
refiners and importers?
Recordkeeping and Reporting Requirements
80.1350 What records must be kept?
80.1352 What are the pre-compliance reporting requirements for the
gasoline benzene program?
80.1354 What are the reporting requirements for the gasoline benzene
program?
Attest Engagements
80.1356 What are the attest engagement requirements for gasoline
benzene compliance?
Violations and Penalties
80.1358 What acts are prohibited under the gasoline benzene program?
80.1359 What evidence may be used to determine compliance with the
prohibitions and requirements of this subpart and liability for
violations of this subpart?
80.1360 Who is liable for violations under the gasoline benzene program?
80.1361 What penalties apply under the gasoline benzene program?
Foreign Refiners
80.1363 What are the additional requirements under this subpart for
gasoline produced at foreign refineries?
Subpart L--Gasoline Benzene
Sec. Sec. 80.1200-80.1219 [Reserved]
General Information
Sec. 80.1220 What are the implementation dates for the gasoline
benzene program?
(a) Benzene standard. (1) For the annual averaging period beginning
January 1, 2011, and for each annual averaging period thereafter,
gasoline produced at each refinery of a refiner or imported by an
importer, must meet the benzene standard specified in Sec. 80.1230(a),
except as otherwise specifically provided for in this subpart.
(2) For the period July 1, 2012 through December 31, 2013, and for
each annual averaging period thereafter, gasoline produced at each
refinery of a refiner or imported by an importer, must meet the maximum
average benzene standard specified in Sec. 80.1230(b), except as
otherwise specifically provided for in this subpart.
(3) Small refiners approved under Sec. 80.1340 may defer meeting
the benzene standard specified in Sec. 80.1230(a) until the annual
averaging period beginning January 1, 2015 and may defer meeting the
benzene standard specified in Sec. 80.1230(b) until the averaging
period beginning July 1, 2016, as described in Sec. 80.1342.
(b) Early credit generation. (1) Effective with the averaging
period beginning June 1, 2007, a refiner for each of its refineries
that has an approved benzene baseline per Sec. 80.1285 may generate
early benzene credits in accordance with the provisions of Sec. 80.1275.
(2) Early benzene credits may be generated through the end of the
averaging period ending December 31, 2010, or through the end of the
averaging period ending December 31, 2014 for small refiners approved
under Sec. 80.1340.
(c) Standard credit generation. (1) Effective with the annual
averaging period beginning January 1, 2011, a refiner for any of its
refineries or an importer for its imported gasoline, may generate
standard benzene credits in accordance with the provisions of Sec. 80.1290.
(2) Effective with the annual averaging period beginning January 1,
[[Page 8545]]
2015, a small refiner approved under Sec. 80.1340, for any of its
refineries, may generate standard benzene credits in accordance with
the provisions of Sec. 80.1290.
Sec. 80.1225 Who must register with EPA under the gasoline benzene
program?
(a) Refiners and importers that are registered by EPA under Sec.
80.76, Sec. 80.103, Sec. 80.190, or Sec. 80.810 are deemed to be
registered for purposes of this subpart.
(b) Refiners and importers subject to the requirements in Sec.
80.1230 that are not registered by EPA under Sec. Sec. 80.76, 80.103,
80.190 or 80.810 shall provide to EPA the information required in Sec.
80.76 by September 30, 2010, or not later than three months in advance
of the first date that such person produces or imports gasoline,
whichever is later.
(c) Refiners that plan to generate early credits under Sec.
80.1275 and that are not registered by EPA under Sec. Sec. 80.76,
80.103, 80.190, or 80.810 must provide to EPA the information required
in Sec. 80.76 not later than 60 days prior to the end of the first
year of credit generation.
Gasoline Benzene Requirements
Sec. 80.1230 What are the gasoline benzene requirements for refiners
and importers?
(a) Annual average benzene standard. (1) Except as specified in
paragraph (c) of this section, a refinery's or importer's average
gasoline benzene concentration in any annual averaging period shall not
exceed 0.62 volume percent.
(2) Compliance with the standard specified in paragraph (a)(1) of
this section, or creation of a deficit in accordance with paragraph (c)
of this section, is determined in accordance with Sec. 80.1240(a).
(3) The annual averaging period for achieving compliance with the
requirement of paragraph (a)(1) of this section is January 1 through
December 31 of each calendar year beginning January 1, 2011, or
beginning January 1, 2015 for small refiners approved under Sec. 80.1340.
(4) Refinery grouping per Sec. 80.101(h) does not apply to compliance
with the gasoline benzene requirement specified in this paragraph (a).
(5) Gasoline produced at foreign refineries that is subject to the
gasoline benzene requirements per Sec. 80.1235 shall be included in
the importer's compliance determination beginning January 1, 2011, or
beginning January 1, 2015 for small foreign refiners approved under
Sec. 80.1340.
(b) Maximum average benzene standard. (1) A refinery's or
importer's maximum average gasoline benzene concentration in any
averaging period shall not exceed 1.30 volume percent.
(2) Compliance with the standard specified in paragraph (b)(1) of
this section is determined in accordance with Sec. 80.1240(b).
(3) The averaging period for achieving compliance with the
requirement of paragraph (b)(1) of this section is July 1, 2012 through
December 31, 2013 and each calendar year thereafter, or July 1, 2016
through December 31, 2017, and each calendar year thereafter for small
refiners approved under Sec. 80.1340.
(c) Deficit carry-forward. (1) A refinery or importer creates a
benzene deficit for a given averaging period when its compliance
benzene value, per Sec. 80.1240(a), is greater than the benzene
standard specified in paragraph (a) of this section.
(2) A refinery or importer may carry the benzene deficit forward to
the calendar year following the year the benzene deficit is created but
only if no deficit had been previously carried forward to the year the
deficit is created. If a refinery or importer carries forward a
deficit, the following provisions apply in the second year:
(i) The refinery or importer must achieve compliance with the
benzene standard specified in paragraph (a) of this section.
(ii) The refinery or importer must achieve further reductions in
its gasoline benzene concentrations sufficient to offset the benzene
deficit of the previous year.
(iii) Benzene credits may be used, per Sec. 80.1295, to meet the
requirements of paragraphs (c)(2)(i) and (ii) of this section.
(iv) A refinery that has banked credits per Sec. 80.1295(a)(3)
must use all of its banked credits to achieve compliance with the
benzene standard specified in paragraph (a) of this section before
creating a deficit.
(3) EPA may allow an extended period of deficit carry-forward if it
grants hardship relief under Sec. Sec. 80.1335 or 80.1336 from the
annual average standard specified in paragraph (a) of this section.
Sec. 80.1235 What gasoline is subject to the benzene requirements of
this subpart?
(a) For the purposes of determining compliance with the
requirements of Sec. 80.1230, all of the following products that are
produced or imported for use in the United States during a refinery's
or importer's applicable compliance period are collectively
``gasoline'' and are to be included in a refinery's or importer's
compliance determination under Sec. 80.1240, except as provided in
paragraph (b) of this section:
(1) Reformulated gasoline.
(2) Conventional gasoline.
(3) Reformulated gasoline blendstock for oxygenate blending (``RBOB'').
(4) Conventional gasoline blendstock that becomes finished
conventional gasoline upon the addition of oxygenate (``CBOB'').
(5) Blendstock that has been combined with finished gasoline, other
blendstock, transmix, or gasoline produced from transmix to produce
gasoline.
(6) Blendstock that has been combined with previously certified
gasoline (``PCG'') to produce gasoline. Such blendstock must be sampled
in accordance with the provisions at Sec. 80.1347(a)(5).
(b) The following products are not to be included in a refinery's
or importer's compliance determination under Sec. 80.1240:
(1) Blendstock that has not been combined with other blendstock or
finished gasoline to produce gasoline.
(2) Oxygenate added to finished gasoline, RBOB, or CBOB downstream
of the refinery that produced the gasoline or import facility where the
gasoline was imported.
(3) Butane added to finished gasoline, RBOB, CBOB downstream of the
refinery that produced the gasoline or import facility where the
gasoline was imported.
(4) Gasoline produced by separating gasoline from transmix.
(5) PCG.
(6) Gasoline produced or imported for use in Guam, American Samoa,
and the Commonwealth of the Northern Mariana Islands.
(7) Gasoline exported for use outside the United States.
(8) Gasoline produced by a small refiner approved under Sec.
80.1340 prior to January 1, 2015, or prior to the small refiner's first
compliance period pursuant to Sec. 80.1342(a), whichever is earlier.
(9) Gasoline that is used to fuel aircraft, racing vehicles or
racing boats that are used only in sanctioned racing events, provided
that --
(i) Product transfer documents associated with such gasoline, and
any pump stand from which such gasoline is dispensed, identify the
gasoline either as gasoline that is restricted for use in aircraft, or
as gasoline that is restricted for use in racing motor vehicles or
racing boats that are used only in sanctioned events;
(ii) The gasoline is completely segregated from all other gasoline
throughout production, distribution and sale to the ultimate consumer;
and
(iii) The gasoline is not made available for use as motor vehicle
[[Page 8546]]
gasoline, or dispensed for use in motor vehicles, except for motor
vehicles used only in sanctioned racing events.
(10) California gasoline, as defined in Sec. 80.1236.
Sec. 80.1236 What requirements apply to California gasoline?
(a) Definition. For purposes of this subpart, ``California
gasoline'' means any gasoline designated by the refiner or importer as
for use only in California and that is actually used in California.
(b) California gasoline exemption. California gasoline that
complies with all the requirements of this section is exempt from the
requirements in Sec. 80.1230.
(c) Requirements for California gasoline. The following
requirements apply to California gasoline:
(1) Each batch of California gasoline must be designated as such by
its refiner or importer.
(2) Designated California gasoline must be kept segregated from
gasoline that is not California gasoline at all points in the
distribution system.
(3) Designated California gasoline must ultimately be used in the
State of California and not used elsewhere in the United States.
(4) In the case of California gasoline produced outside the State
of California, the transferors and transferees must meet the product
transfer document requirements under Sec. 80.81(g).
(5) Gasoline that is ultimately used in any part of the United
States outside of the State of California must comply with the
requirements specified in Sec. 80.1230, regardless of any designation
as California gasoline.
Sec. 80.1238 How is a refinery's or importer's average benzene
concentration determined?
(a) The average benzene concentration of gasoline produced at a
refinery or imported by an importer for an applicable averaging period
is calculated according to the following equation:
[GRAPHIC]
[TIFF OMITTED] TR26FE07.012
Where:
Bavg = Average benzene concentration for the applicable
averaging period (volume percent benzene).
i = Individual batch of gasoline produced at the refinery or
imported during the applicable averaging period.
n = Total number of batches of gasoline produced at the refinery or
imported during the applicable annual averaging period.
Vi = Volume of gasoline in batch i (gallons).
Bi = Benzene concentration of batch i (volume percent
benzene), per Sec. 80.46(e).
(b) A refiner or importer may include the volume of oxygenate added
downstream from the refinery or import facility in the calculation
specified in paragraph (a) of this section, provided the following
requirements are met:
(1) For oxygenate added to conventional gasoline, the refiner or
importer must comply with the requirements of Sec. 80.101(d)(4)(ii)
and the calculation methodologies of Sec. 80.101(g)(3).
(2) For oxygenate added to RBOB, the refiner or importer must
comply with the requirements of Sec. 80.69(a).
(c) Refiners and importers must exclude from the calculation
specified in paragraph (a) of this section all of the following:
(1) Gasoline that was not produced at the refinery or imported by
the importer.
(2) Except as provided in paragraph (b) of this section, any
blendstocks or unfinished gasoline transferred to others.
(3) Gasoline that has been included in the compliance calculations
for another refinery or importer.
(4) Gasoline exempted from the standards under Sec. 80.1235(b).
Sec. 80.1240 How is a refinery's or importer's compliance with the
gasoline benzene requirements of this subpart determined?
(a) A refinery's or importer's compliance with the annual average
benzene standard at Sec. 80.1230(a) is determined as follows:
(1)(i) The compliance benzene value for a refinery or importer is:
[GRAPHIC]
[TIFF OMITTED] TR26FE07.013
Where:
CBVy = Compliance benzene value (gallons benzene) for year y.
Vy = Gasoline volume produced or imported in year y (gallons).
Bavg,y = Average benzene concentration in year y (volume
percent benzene), calculated in accordance with Sec. 80.1238.
Dy-1 = Benzene deficit from the previous reporting
period, per Sec. 80.1230(c) (gallons benzene).
BC = Banked benzene credits used to show compliance (gallons benzene).
OC = Benzene credits obtained by the refinery or importer used to
show compliance (gallons benzene).
(ii) Benzene credits used in the calculation specified in paragraph
(a)(1)(i) of this section must be used in accordance with the
requirements at Sec. 80.1295.
(2)(i) If CBVy <= Vy x (0.62)/100, then
compliance with the benzene requirement at Sec. 80.1230(a) is achieved
for calendar year y.
(ii) If CBVy > Vy x (0.62)/100, then
compliance with the benzene requirement at Sec. 80.1230(a) is not
achieved for calendar year y, and a deficit is created per Sec.
80.1230(c). The deficit value to be included in the following year's
compliance calculation per paragraph (a) of this section is calculated
as follows:
[GRAPHIC]
[TIFF OMITTED] TR26FE07.014
Where:
Dy = Benzene deficit created in compliance period y
(gallons benzene).
(b) Compliance with the maximum average benzene standard at Sec.
80.1230(b) is achieved by a refinery or importer if the value of
Bavg calculated in accordance with Sec. 80.1238(a) is no
greater 1.30 volume percent for an applicable averaging period per
Sec. 80.1230(b)(3).
Averaging, Banking and Trading (ABT) Program
Sec. 80.1270 Who may generate benzene credits under the ABT program?
(a) Early benzene credits. Early benzene credits are credits
generated prior to 2011, or prior to 2015 if generated by a small
refiner approved under Sec. 80.1340.
(1)(i) Early credits may be generated under Sec. 80.1275 by a
refiner for any refinery it owns that has an approved benzene baseline
under Sec. 80.1285, including a refinery of a foreign refiner that is
subject to the provisions of Sec. 80.1363.
(ii) The refinery specified in paragraph (a)(1)(i) of this section
must process crude oil and/or intermediate feedstocks through refinery
processing units.
(iii) Early benzene credits shall be calculated separately for each
refinery of a refiner.
(iv) A refinery that is approved for early compliance under Sec.
80.1334 may not generate early credits for the gasoline subject to the
early compliance provisions.
(2)(i) A refinery that was shut down during the entire 2004-2005
benzene baseline period is not eligible to generate early credits under
Sec. 80.1275.
(ii) A refinery not in full production, excluding normal refinery
downtime, or not showing consistent or regular gasoline production
activity during 2004-2005 may be eligible to generate early benzene
credits under Sec. 80.1275 upon petition to and approval by EPA,
pursuant to Sec. 80.1285(d).
[[Page 8547]]
(3) Importers may not generate early credits.
(b) Standard benzene credits. Standard benzene credits are credits
generated after 2010, or after 2014 if generated by a small refiner
approved under Sec. 80.1340.
(1) Unless otherwise provided for elsewhere in this subpart,
standard credits may be generated under Sec. 80.1290 as follows:
(i) A refiner may generate standard credits separately for each of
its refineries.
(ii) An importer may generate standard credits for all of its
imported gasoline.
(2) Oxygenate blenders, butane blenders, and transmix producers may
not generate standard credits.
(3) Foreign refiners may not generate standard credits.
Sec. 80.1275 How are early benzene credits generated?
(a) For each averaging period per paragraph (b) of this section in
which a refinery plans to generate early credits, its average gasoline
benzene concentration calculated according to Sec. 80.1238(a) must be
at least 10% lower than its benzene baseline concentration approved
under Sec. 80.1280.
(b) The early credit averaging periods are as follows:
(1) For 2007, the seven-month period from June 1, 2007 through
December 31, 2007.
(2) For 2008, 2009 and 2010, the 12-month calendar year.
(3) For small refiners approved under Sec. 80.1340, the 12-month
calendar years 2011, 2012, 2013, and 2014 in addition to the periods
specified in paragraphs (b)(1) and (b)(2) of this section.
(c) The number of early benzene credits generated shall be
calculated for each applicable averaging period as follows:
[GRAPHIC]
[TIFF OMITTED] TR26FE07.015
Where:
ECy = Early credits generated in averaging period y
(gallons benzene).
BBase = Baseline benzene concentration of the refinery
(volume percent benzene), per Sec. 80.1280(a).
Bavg,y = Average benzene concentration of gasoline
produced at the refinery during averaging period y (volume percent
benzene), per Sec. 80.1238.
Ve,y = Total volume of gasoline produced at the refinery
during averaging period y (gallons).
(d) A refinery that plans to generate early credits must also show
that it has met all of the following requirements prior to or during
the first early credit averaging period, per paragraph (b) of this
section, in which it generates early credits:
(1) Since 2005, has made operational changes and/or improvements in
benzene control technology to reduce gasoline benzene levels, including
at least one of the following:
(i) Treating the heavy straight run naphtha entering the reformer
using light naphtha splitting and/or isomerization.
(ii) Treating the reformate stream exiting the reformer using
benzene extraction or benzene saturation.
(iii) Directing additional refinery streams to the reformer for
treatment described paragraphs (d)(1)(i) and (ii) of this section.
(iv) Directing reformate streams to other refineries with treatment
capabilities described in paragraph (d)(1)(ii) of this section.
(2) Has not included gasoline blendstock streams transferred to,
from, or between refineries, except as noted in paragraph (d)(1)(iv) of
this section.
(e) Early benzene credits calculated in accordance with paragraph
(c) of this section shall be expressed to the nearest gallon.
Fractional values shall be rounded down if less than 0.50, and rounded
up if greater than or equal to 0.50.
Sec. 80.1280 How are refinery benzene baselines calculated?
(a) A refinery's benzene baseline is based on the refinery's 2004-
2005 average gasoline benzene concentration, calculated according to
the following equation:
[GRAPHIC]
[TIFF OMITTED] TR26FE07.016
Where:
BBase = Benzene baseline concentration (volume percent
benzene).
i = Individual batch of gasoline produced at the refinery
from January 1, 2004 through December 31, 2005.
n = Total number of batches of gasoline produced at the refinery
from January 1, 2004 through December 31, 2005 (or the total number
of batches of gasoline pursuant to Sec. 80.1285(d)).
Vi = Volume of gasoline in batch i (gallons).
Bi = Benzene content of batch i (volume percent benzene).
(b) A refiner for a refinery that included oxygenate blended
downstream of the refinery in compliance calculations for RFG or
conventional gasoline for calendar years 2004 or 2005 under Sec. 80.69
or Sec. 80.101(d)(4) must include the volume and benzene concentration
of this oxygenate in the benzene baseline calculation for that refinery
under paragraph (a) of this section.
Sec. 80.1285 How does a refiner apply for a benzene baseline?
(a) A benzene baseline application must be submitted for each
refinery that plans to generate early credits under Sec. 80.1275. The
application must include the information specified in paragraph (c) of
this section and must be submitted to EPA at least 60 days before the
first averaging period in which the refinery plans to generate early
credits.
(b) For U.S. Postal delivery, the benzene baseline application
shall be sent to: Attn: MSAT2 Benzene, Mail Stop 6406J, U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460. For commercial delivery: MSAT2 Benzene, 202-343-
9038, U.S. Environmental Protection Agency, 1310 L Street, NW.,
Washington, DC 20005.
(c) The benzene baseline application must include the following
information:
(1) A listing of the names and addresses of all refineries owned by
the company.
(2) The benzene baseline for gasoline produced in 2004-2005 at the
refinery, calculated in accordance with Sec. 80.1280.
(3) Copies of the annual reports required under Sec. 80.75 for RFG
and Sec. 80.105 for conventional gasoline.
(4) A letter signed by the president, chief operating officer, or
chief executive officer, of the company, or his/her designee, stating
that the information contained in the benzene baseline determination is
true to the best of his/her knowledge.
(5) Name, address, phone number, facsimile number and e-mail
address of a corporate contact person.
(d) For a refinery that may be eligible to generate early credits
under Sec. 80.1270(a)(2)(ii), a refiner may submit to EPA a benzene
baseline application per the requirements of this section. The refiner
must also submit information regarding the nature and cause of the
refinery's production activity that resulted in irregular or less than
full production, how it affected the baseline benzene concentration,
and whether and how an alternative calculation to the calculation
specified in Sec. 80.1280 produces a more representative benzene
baseline value. Upon consideration of the submitted information, EPA
may approve a benzene baseline for such a refinery.
(e) EPA will notify the refiner of approval of the refinery's
benzene baseline or any deficiencies in the
[[Page 8548]]
application. However, except for applications submitted in accordance
with paragraph (d) of this section, the refinery's benzene baseline
application may be considered approved 60 days after EPA's receipt of
the baseline application, subject to paragraph (f) of this section.
(f) If at any time the baseline submitted in accordance with the
requirements of this section is determined to be incorrect, EPA will
notify the refiner of the corrected baseline.
Sec. 80.1290 How are standard benzene credits generated?
(a) The standard credit averaging periods are the calendar years
beginning January 1, 2011, or beginning January 1, 2015 for small
refiners approved under Sec. 80.1340.
(b) [Reserved]
(c)(1) The number of standard benzene credits generated shall be
calculated annually for each applicable averaging period according to
the following equation:
[GRAPHIC]
[TIFF OMITTED] TR26FE07.017
Where:
SCy = Standard credits generated in year y (gallons
benzene).
Bavg,y = Annual average benzene concentration for year y
(volume percent benzene), per Sec. 80.1238.
Vy = Total volume of gasoline produced or imported in
year y (gallons).
(2) No credits shall be generated unless the value SCy
is positive.
(d) Standard benzene credits calculated in accordance with
paragraph (c) of this section shall be expressed to the nearest gallon.
Fractional values shall be rounded down if less than 0.50, and rounded
up if greater than or equal to 0.50.
Sec. 80.1295 How are gasoline benzene credits used?
(a) Credit use. (1) Gasoline benzene credits may be used to comply
with the gasoline benzene standard of Sec. 80.1230(a) provided that--
(i) The gasoline benzene credits were generated according to
Sec. Sec. 80.1275 or 80.1290.
(ii) The recordkeeping requirements for gasoline benzene credits
under Sec. 80.1350 are met.
(iii) The gasoline benzene credits are correctly reported according
to Sec. Sec. 80.1352 and 80.1354.
(iv) The conditions of this section are met.
(2) Gasoline benzene credits generated under Sec. Sec. 80.1275 and
80.1290 may be used interchangeably in all credit use scenarios,
subject to the credit life provisions specified in paragraph (c) of
this section.
(3) Gasoline benzene credits may be used by a refiner or importer
to comply with the gasoline benzene content standard of Sec.
80.1230(a), may be banked by a refiner or importer for future use or
transfer, may be transferred to another refinery or importer within a
company (intracompany trading), or may be transferred to another
refiner or importer outside of the company.
(b) Credit transfers. (1) Gasoline benzene credits obtained from
another refinery or importer may be used to comply with the gasoline
benzene content requirement of Sec. 80.1230(a) provided the following
conditions are met:
(i) The credits are generated and reported according to the
requirements of this subpart, and the transferred credits have not
expired, per paragraph (c) of this section.
(ii) Any credit transfer takes place no later than the last day of
February following the calendar year averaging period when the credits
are used.
(iii) The credit has not been transferred more than twice. The
first transfer by the refinery or importer that generated the credit
may only be made to a refiner or importer that intends to use the
credit; if the transferee cannot use the credit, it may make the
second, and final, transfer only to a refiner or importer that intends
to use or to terminate the credit. In no case may a credit be
transferred more than twice before being used or terminated.
(iv) The credit transferor has applied any gasoline benzene credits
necessary to meet its own annual compliance requirements (including any
deficit carried forward, pursuant to Sec. 80.1230(c), if applicable)
before transferring any gasoline benzene credits to any other refiner
or importer.
(v) The credit transferor does not create a deficit as a result of
a credit transfer.
(vi) The transferor supplies records to the transferee indicating
the year the gasoline benzene credits were generated, the identity of
the refiner (and refinery) or importer that generated the gasoline
benzene credits, and the identity of the transferring entity if it is
not the same entity that generated the gasoline benzene credits.
(2) In the case of gasoline benzene credits that have been
calculated or created improperly, or that EPA has otherwise determined
to be invalid, the following provisions apply:
(i) Invalid gasoline benzene credits cannot be used to achieve
compliance with the gasoline benzene content requirement of Sec.
80.1230(a), regardless of the transferee's good-faith belief that the
gasoline benzene credits were valid.
(ii) The refiner or importer that used the gasoline benzene credits
and any transferor of the gasoline benzene credits must adjust their
credit records, reports, and compliance calculations as necessary to
reflect the proper gasoline benzene credits.
(iii) Any properly created gasoline benzene credits existing in the
transferor's credit balance following the corrections and adjustments
specified in paragraph (b)(2)(ii) of this section must first be applied
to correct the invalid transfers to the transferee, before the
transferor uses, trades or banks the gasoline benzene credits.
(c) Credit life. (1)(i) Early credits, per Sec. 80.1275, may be
used for compliance purposes under Sec. 80.1240(a) for any of the
following annual averaging periods: 2011, 2102, 2013.
(ii) Early credits, per Sec. 80.1275, may be used for compliance
purposes under Sec. 80.1240(a) by small refiners approved under Sec.
80.1340 for any of the following averaging periods: 2015, 2016, 2017.
(2)(i) Standard credits, per Sec. 80.1290, may be used for
compliance purposes under Sec. 80.1240(a) within five years from the
year they were generated, except as noted under paragraph (c)(2)(ii) of
this section. Example: Standard credits generated during 2011 may be
used to achieve compliance under Sec. 80.1240(a) for any calendar year
averaging period prior to the 2017 averaging period.
(ii) Standard credits, per Sec. 80.1290, may be used for
compliance purposes under Sec. 80.1240(a) within seven years from the
year they were generated if traded to and ultimately used by a small
refiner approved under Sec. 80.1340. Example: Standard credits
generated in 2011 may be used to achieve compliance under Sec.
80.1240(a) for any calendar year averaging period prior to the 2019
averaging period if traded to and ultimately used by a small refiner
approved under Sec. 80.1340.
(d) Deficit provision limitation. A refiner or importer possessing
gasoline benzene credits must use all gasoline benzene credits in its
possession before applying the benzene deficit provisions of Sec.
80.1230(c).
Hardship Provisions
Sec. 80.1334 What are the requirements for early compliance with the
gasoline benzene program?
(a)(1) A refinery may comply with the benzene requirements at Sec.
80.1230 for its RFG and/or conventional gasoline (CG) prior to the 2011
compliance
[[Page 8549]]
period if it applies for this early compliance option as specified in
paragraph (b) of this section, and is approved by EPA.
(2) Only refineries that produce gasoline by processing crude and/
or intermediate feedstocks through refinery processing units may apply
for this early compliance option.
(b) Refiners must submit an application in order to be considered
for early compliance as described in this section.
(1) Applications for early compliance as described in this section
must be submitted to EPA by December 31, 2007.
(2) Applications must be sent to: U.S. EPA, NVFEL-ASD, Attn: MSAT2
Early Compliance, 2000 Traverwood Dr., Ann Arbor, MI 48105.
(3) Application must be made separately for a refinery's RFG and CG
pools.
(4) The early compliance application must show that all the
following criteria are met:
(i) For an RFG early compliance application--
(A) The refinery's RFG baseline value under Sec. 80.915 is greater
than or equal to 30 percent reduction.
(B) The refinery's 2003 RFG annual average benzene concentration
was less than or equal to 0.62 vol%.
(C) The refinery's 2003 RFG annual average sulfur concentration was
less than or equal to 140 ppm.
(D) The refinery's 2003 RFG annual average MTBE concentration was
greater than or equal to 6 vol%.
(ii) For a CG early compliance application--
(A) The refinery's CG baseline under Sec. 80.915 is less than or
equal to 80 mg/mile.
(B) The refinery's 2003 CG annual average benzene concentration was
less than or equal to 0.62 vol%.
(C) The refinery's 2003 CG annual average sulfur concentration was
less than or equal to 140 ppm.
(D) The refinery's 2003 CG annual average MTBE concentration was
greater than or equal to 6 vol%.
(5) In addition, the application must demonstrate that the refinery
has extremely limited ability to adjust its operations in order to
comply with its applicable RFG or CG toxics performance requirements
under Sec. 80.815.
(6) The refiner must provide additional information as requested by
EPA.
(c)(1) If approved for early compliance with the provisions of this
subpart, the refinery may comply with the provisions of Sec. 80.1230
as follows:
(i) For the compliance period beginning January 1, 2007, and each
annual compliance period through 2010; or
(ii) For the compliance period beginning January 1, 2008, and each
annual compliance period through 2010.
(2) The refinery must notify EPA under which compliance period
specified in paragraph (c)(1) of this section it will begin compliance.
(3) Beginning with the compliance period chosen pursuant to
paragraph (c)(2) of this section--
(i) For early compliance approved for a refinery's RFG pool, the
toxics air pollutants emissions performance requirements specified in
Sec. Sec. 80.41(e)(1) and (f)(1) and 80.815 shall not apply to the
reformulated gasoline produced by the refinery.
(ii) For early compliance approved for a refinery's CG pool, the
annual average exhaust toxics emissions requirements specified in
Sec. Sec. 80.101(c)(2) and 80.815 shall not apply to conventional
gasoline produced by the refinery.
(4) Refineries approved for early compliance under this section may
not generate early credits under Sec. 80.1275.
(d) If EPA finds that a refiner provided false or inaccurate
information in its application for early compliance, the early
compliance approval will be void ab initio.
Sec. 80.1335 Can a refiner seek relief from the requirements of this
subpart?
(a) A refiner may apply for relief from the requirements specified
in Sec. 80.1230(a) or (b) for a refinery, if it can show that--
(1) Unusual circumstances exist that impose extreme hardship and
significantly affect the ability to comply with the gasoline benzene
standards at Sec. 80.1230(a) or (b) by the applicable date(s); and
(2) It has made best efforts to comply with the requirements of
this subpart.
(b) A refiner must apply for and be approved for relief under this
section.
(1) An application must include the following information:
(i) A plan demonstrating how the refiner will comply with the
requirements of Sec. 80.1230(a) or (b), as applicable, as
expeditiously as possible. The plan shall include a showing that
contracts are or will be in place for engineering and construction of
benzene reduction technology, a plan for applying for and obtaining any
permits necessary for construction, a description of plans to obtain
necessary capital, and a detailed estimate of when the requirements of
Sec. 80.1230(a) or (b), as applicable, will be met.
(ii) A detailed description of the refinery configuration and
operations including, at minimum, the following information:
(A) The refinery's total reformer unit throughput capacity;
(B) The refinery's total crude capacity;
(C) Total crude capacity of any other refineries owned by the same
entity;
(D) Total volume of gasoline production at the refinery;
(E) Total volume of other refinery products;
(F) Geographic location(s) where the refinery's gasoline will be sold;
(G) Detailed descriptions of efforts to obtain capital for refinery
investments;
(H) Bond rating of entity that owns the refinery; and
(I) Estimated capital investment needed to comply with the
requirements of this subpart.
(iii) For a hardship related to complying with the requirement at
Sec. 80.1230(a), detailed descriptions of efforts to obtain credits,
including the prices of credits available, but deemed uneconomical by
the refiner.
(2) Applicants must also provide any other relevant information
requested by EPA.
(3) An application for relief from the requirements specified in
Sec. 80.1230(b) must be submitted to EPA by January 1, 2008, or by
January 1, 2013 for small refiners approved under Sec. 80.1340.
(c)(1) Approval of a hardship application under this section for
relief from the annual average benzene standard at Sec. 80.1230(a)
shall be in the form of an extended period of deficit carry-forward,
per Sec. 80.1230(c), for such period of time as EPA determines is
appropriate.
(2) Approval of a hardship application under this section for
relief from the maximum average benzene standard at Sec. 80.1230(b)
shall be in the form of a waiver of the standard for such period of
time as EPA determines is appropriate.
(3) EPA may deny any application for appropriate reasons, including
unacceptable environmental impact.
(d) EPA may impose any other reasonable conditions on relief
provided under this section, including rescinding, or reducing the
length of, the extended deficit carry-forward period if conditions or
situations change between approval of the hardship application and the
end of the approved relief period.
Sec. 80.1336 What if a refiner or importer cannot produce gasoline
conforming to the requirements of this subpart?
In extreme, unusual, and unforeseen circumstances (for example, a
natural
[[Page 8550]]
disaster or a refinery fire) that are clearly outside the control of
the refiner or importer and that could not have been avoided by the
exercise of prudence, diligence, and due care, EPA may permit a
refinery or importer to exceed the allowable average benzene levels
specified in Sec. 80.1230(a) or (b), as applicable, if--
(a) It is in the public interest to do so;
(b) The refiner or importer exercised prudent planning and was not
able to avoid the violation and has taken all reasonable steps to
minimize the extent of the nonconformity;
(c) The refiner or importer can show how the requirements at Sec.
80.1230(a) or (b), as applicable, will be achieved as expeditiously as
possible;
(d) The refiner or importer agrees to make up any air quality
detriment associated with the nonconformity, where practicable; and
(e) The refiner or importer pays to the U.S. Treasury an amount
equal to the economic benefit of the nonconformity minus the amount
expended making up the air quality detriment pursuant to paragraph (d)
of this section.
Small Refiner Provisions
Sec. 80.1338 What criteria must be met to qualify as a small refiner
for the gasoline benzene requirements of this subpart?
(a) A small refiner is any person that demonstrates that it--
(1) Produced gasoline at a refinery by processing crude oil through
refinery processing units from January 1, 2005 through December 31, 2005.
(2) Employed an average of no more than 1,500 people, based on the
average number of employees for all pay periods from January 1, 2005
through December 31, 2005.
(3) Had a corporate average crude oil capacity less than or equal
to 155,000 barrels per calendar day (bpcd) for 2005.
(4) Following the submission of a small refiner application,
pursuant to Sec. 80.1340, has been approved as a small refiner for
this subpart.
(b) For the purpose of determining the number of employees and the
crude oil capacity under paragraph (a) of this section, the following
determinations shall be observed:
(1) The refiner shall include the employees and crude oil capacity
of any subsidiary companies, any parent company, subsidiaries of the
parent company in which the parent has a controlling interest, and any
joint venture partners.
(2) For any refiner owned by a governmental entity, the number of
employees and total crude oil capacity as specified in paragraph (a) of
this section shall include all employees and crude oil production of
the government to which the governmental entity is a part.
(3) Any refiner owned and controlled by an Alaska Regional or
Village Corporation organized pursuant to the Alaska Native Claims
Settlement Act (43 U.S.C. 1601) is not considered an affiliate of such
entity, or with other concerns owned by such entity, solely because of
their common ownership.
(c) Notwithstanding the provisions of paragraph (a) of this
section, a refiner that reactivates a refinery that it had previously
operated, and that was shut down or non-operational for the entire
period between January 1, 2005 and December 31, 2005, may apply for
small refiner status in accordance with the provisions of Sec. 80.1340.
Sec. 80.1339 Who is not eligible for the provisions for small refiners?
The following are not eligible for the hardship provisions for
small refiners:
(a) A refiner with one or more refineries built after December 31,
2005.
(b) A refiner that exceeds the employee or crude oil capacity
criteria under Sec. 80.1338 but that meets these criteria after
December 31, 2005, regardless of whether the reduction in employees or
crude capacity is due to operational changes at the refinery or a
company sale or reorganization.
(c) Importers.
(d) A refiner that produce gasoline other than by processing crude
oil through refinery processing units.
(e)(1) A small refiner approved under Sec. 80.1340 that
subsequently ceases production of gasoline from processing crude oil
through refinery processing units, employs more than 1,500 people, or
exceeds the 155,000 bpcd crude oil capacity limit after December 31,
2005 as a result of merger with or acquisition of or by another entity,
is disqualified as a small refiner, except that this shall not apply in
the case of a merger between two previously approved small refiners. If
disqualification occurs, the refiner shall notify EPA in writing no
later than 20 days following this disqualifying event.
(2) Except as provided under paragraph (e)(3) of this section, any
refiner whose status changes as specified in paragraph (e)(1) under
this paragraph (b) shall meet the applicable standards of Sec. 80.1230
within 30 months of the disqualifying event for all its refineries.
However, such period shall not extend beyond December 31, 2014.
(3) A refiner may apply to EPA for an additional six months to
comply with the standards of Sec. 80.1230 if it believes that more
than 30 months will be required for the necessary engineering,
permitting, construction, and start-up work to be completed. Such
applications must include detailed technical information supporting the
need for additional time. EPA will base its decision to approve
additional time on the information provided by the refiner and on other
relevant information. In no case will EPA extend the compliance date
beyond December 31, 2014.
(4) During the period provided under paragraph (e)(2) of this
section, and any extension provided under paragraph (e)(3) of this
section, the refiner may not generate gasoline benzene credits under
Sec. 80.1275 or Sec. 80.1290.
(f) A small refiner approved under Sec. 80.1340 which notifies EPA
that it wishes to withdraw its small refiner status pursuant to Sec.
80.1340(g).
Sec. 80.1340 How does a refiner obtain approval as a small refiner?
(a) Applications for small refiner status must be submitted to EPA
by December 31, 2007.
(b) For U.S. Postal delivery, applications for small refiner status
must be sent to: Attn: MSAT2 Benzene, Mail Stop 6406J, U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460. For commercial delivery: MSAT2 Benzene, 202-343-
9038, U.S. Environmental Protection Agency, 1310 L Street, NW.,
Washington, DC 20005.
(c) The small refiner status application must contain the following
information for the company seeking small refiner status, and for all
subsidiary companies, all parent companies, all subsidiaries of the
parent companies, and all joint venture partners:
(1) Employees. For joint ventures, the total number of employees
includes the combined employee count of all corporate entities in the
venture. For government-owned refiners, the total employee count
includes all government employees.
(i) Pursuant to paragraph (c) of this section, a listing of each
company facility and each facility's address where any employee, as
specified in paragraph (a)(1) of this section, worked during the 12
months preceding January 1, 2006.
(ii) The average number of employees at each facility based upon
the number of employees for each pay period for the 12 months preceding
January 1, 2006.
(iii) The type of business activities carried out at each location.
(iv) In the case of a refiner that reactivates a refinery that it
previously owned and operated and that was shut down or non-operational
between
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January 1, 2005 and January 1, 2006, include the following:
(A) Pursuant to paragraph (c) of this section, a listing of each
company refinery each refinery's address where any employee, as
specified in paragraph (a)(1) of this section, worked since the refiner
acquired or reactivated the refinery.
(B) The average number of employees at any such reactivated refinery
during each calendar year since the refiner reactivated the refinery.
(C) The type of business activities carried out at each location.
(2) Crude oil capacity.
(i) The total corporate crude oil capacity of each refinery as
reported to the Energy Information Administration (EIA) of the U.S.
Department of Energy (DOE), for the period January 1, 2005 through
December 31, 2005.
(ii) The information submitted to EIA is presumed to be correct. In
cases where a company disagrees with this information, the company may
petition EPA with appropriate data to correct the record when the
company submits its application for small refiner status.
(3) The type of business activity carried out at each location.
(4) For each refinery, an indication of the small refiner option(s),
pursuant to Sec. 80.1342, intended to be utilized at the refinery.
(5) A letter signed by the president, chief operating officer or
chief executive officer of the company, or his/her designee, stating
that the information contained in the application is true to the best
of his/her knowledge, and that the company owned the refinery as of
January 1, 2006.
(6) Name, address, phone number, facsimile number, and e-mail
address of a corporate contact person.
(d) Approval of a small refiner status application will be based on
the information submitted under paragraph (c) of this section and any
other relevant information.
(e) EPA will notify a refiner of approval or disapproval of small
refiner status by letter.
(1) If approved, all refineries of the refiner may defer meeting
the standard specified in Sec. 80.1230(a) until the annual averaging
period beginning January 1, 2015, and the standard specified in Sec.
80.1230(b) until the averaging period beginning July 1, 2016.
(2) If disapproved, all refineries of the refiner must meet the
standard specified in Sec. 80.1230(a) beginning with the annual
averaging period beginning January 1, 2011, and must meet the standard
specified in Sec. 80.1230(b) beginning with the averaging period
beginning July 1, 2012.
(f) If EPA finds that a refiner provided false or inaccurate
information on its application for small refiner status, the refiner's
small refiner status will be void ab initio.
(g) Prior to January 1, 2014, and upon notification to EPA, a small
refiner approved per this section may withdraw its status as a small
refiner. Effective on January 1 of the year following such
notification, the small refiner will become subject to the standards at
Sec. 80.1230.
Sec. 80.1342 What compliance options are available to small refiners
under this subpart?
(a) A refiner that has been approved as a small refiner under Sec.
80.1340 may--
(1)(i) Defer meeting the standard specified in Sec. 80.1230(a)
until the annual averaging period beginning January 1, 2015; or
(ii) Meet the standard specified in Sec. 80.1230(a) in any annual
averaging period from 2011 through 2014, inclusive, provided it
notifies EPA in writing no later than November 15 prior to the year in
which it will produce compliant gasoline.
(2)(i) Defer meeting the standard specified in Sec. 80.1230(b)
until the averaging period beginning July 1, 2016; or
(ii) Meet the standard specified in Sec. 80.1230(b) in any
averaging period specified in Sec. 80.1230(b)(3) prior to the
averaging period beginning July 1, 2016 provided it notifies EPA in
writing no later than November 15 prior to the year in which it will
produce compliant gasoline.
(b) Any refiner that makes an election under paragraphs (a)(1) or
(a)(2) of this section must comply with the applicable benzene
standards at Sec. 80.1230 beginning with the first averaging period
subsequent to the status change.
(c) The provisions of paragraph (a) of this section shall apply
separately for each of an approved small refiner's refineries.
Sec. 80.1343 What hardship relief provisions are available only to
small refiners?
(a)(1) In the case of a small refiner approved under Sec. 80.1340
for which compliance with the requirement at Sec. 80.1230(a) would be
feasible only through the purchase of credits, but for whom purchase of
credits is not practically or economically feasible, EPA may approve a
delay of the requirements applicable to the first compliance period for
that refiner for up to two years.
(2) No delay in accordance with paragraph (a) of this section will
be granted to any small refiner prior to the EPA issuing a review of
the credit program.
(3) A small refiner may request one or more extensions of an
approved delay if it can continue to demonstrate extreme difficulty in
achieving compliance, through the use of credits, with the annual
average benzene standard at Sec. 80.1230(a).
(b) In the case of a small refiner approved under Sec. 80.1340 for
which compliance with the maximum average benzene requirement at Sec.
80.1230(b) is not feasible, the refiner may apply for hardship relief
under Sec. 80.1335.
Sec. 80.1344 What provisions are available to a non-small refiner
that acquires one or more of a small refiner's refineries?
(a) In the case of a refiner that is not an approved small refiner
under Sec. 80.1340 and that acquires a refinery from a small refiner
approved under Sec. 80.1340, the small refiner provisions of the
gasoline benzene program of this subpart continue to apply to the
acquired refinery for a period of up to 30 months from the date of
acquisition of the refinery. In no case shall this period extend beyond
December 31, 2014.
(b) A refiner may apply to EPA for up to an additional six months
to comply with the standards of Sec. 80.1230 for the acquired refinery
if it believes that more than 30 months would be required for the
necessary engineering, permitting, construction, and start-up work to
be completed. Such applications must include detailed technical
information supporting the need for additional time. EPA will base a
decision to approve additional time on information provided by the
refiner and on other relevant information. In no case shall this period
extend beyond December 31, 2014.
(c) A refiner that acquires a refinery from a small refiner
approved per Sec. 80.1340 shall notify EPA in writing no later than 20
days following the acquisition.
Sampling, Testing and Retention Requirements
Sec. 80.1347 What are the sampling and testing requirements for
refiners and importers?
(a) Sample and test each batch of gasoline. (1) The sampling and
testing requirements specified in subpart D for reformulated gasoline
shall continue to apply to reformulated gasoline and shall be extended
to conventional gasoline (CG) for the purpose of complying with the
benzene requirements of this subpart, except as modified by paragraphs
(a)(2), (a)(3) and (a)(4) of this section.
[[Page 8552]]
(2) Refiners and importers shall collect a representative sample
from each batch of gasoline produced or imported, according to the
earliest applicable date in the following schedule:
(i) Beginning January 1, 2011;
(ii) Beginning January 1, 2015 for small refiners approved under
Sec. 80.1340;
(iii) Beginning January 1 of the year prior to 2015 in which a
small refiner approved under Sec. 80.1340 has opted, per Sec.
80.1342(a), to begin meeting the standards at Sec. 80.1230;
(iv) Beginning June 1, 2007, for any refinery planning to generate
early credits for the averaging period specified at Sec. 80.1275(b)(1);
(v) Beginning January 1 of each averaging period specified at Sec.
80.1275(b)(2) or (b)(3) for which the refinery plans to generate early
credits;
(vi) Beginning January 1 of the year, per Sec. 80.1334(c)(1), in
which a refinery approved for early compliance under Sec. 80.1334 opts
to begin early compliance. The provisions shall only apply to the type
of gasoline, RFG or CG, for which early compliance was approved.
(3)(i) Each sample shall be tested in accordance with the
methodology specified at Sec. 80.46(e) to determine its benzene
concentration for compliance with the requirements of this subpart.
(ii) Independent sample analysis, under Sec. 80.65(f), is not
required for conventional gasoline.
(4) Any refiner or importer may release CG prior to obtaining the
test results for benzene required under paragraph (a)(1) of this section.
(5) 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 (``PCG'') for
purposes of demonstrating compliance with the benzene standards at
Sec. 80.1230.
(ii) To accomplish the exclusion required in paragraph (a)(5)(i) of
this section, the refiner must determine the volume and benzene content
of the previously certified gasoline used at the refinery and the
volume and benzene content of gasoline produced at the refinery, and
use the compliance calculation procedures in paragraphs (a)(5)(iii) and
(a)(5)(iv) of this section.
(iii) For each batch of previously certified gasoline that is used
to produce conventional gasoline the refiner must include the volume
and benzene content of the previously certified gasoline as a negative
volume and a negative benzene content in the refiner's compliance
calculations in accordance with the requirements at Sec. 80.1238.
(iv) For each batch of conventional gasoline produced at the
refinery using previously certified gasoline, the refiner must
determine the volume and benzene content and include each batch in the
refinery's compliance calculations at Sec. 80.1240 without regard to
the presence of previously certified gasoline in the batch.
(v) The refiner must use any previously certified gasoline that it
includes as a negative batch in its compliance calculations pursuant to
Sec. 80.1240 as a component in gasoline production during the annual
averaging period in which the previously certified gasoline was
included as a negative batch in the refiner's compliance calculations.
(b) Batch numbering. The batch numbering convention of Sec.
80.365(b) shall apply to batches of conventional gasoline beginning
with earliest applicable date specified in paragraph (a)(2) of this
section.
Sec. 80.1348 What gasoline sample retention requirements apply to
refiners and importers?
Beginning with earliest applicable date specified in Sec.
80.1347(a)(2), the gasoline sample retention requirements specified in
subpart H of this part for the gasoline sulfur provisions apply for the
purpose of complying with the requirements of this subpart, except that
in addition to including the sulfur test result as provided by Sec.
80.335(a)(4)(ii), the refiner, importer, or independent laboratory
shall also include with the retained sample the test result for benzene
as conducted pursuant to Sec. 80.46(e).
Recordkeeping and Reporting Requirements
Sec. 80.1350 What records must be kept?
(a) General requirements. The recordkeeping requirements specified
in Sec. Sec. 80.74 and 80.104, as applicable, apply for the purpose of
complying with the requirements of this subpart; however, duplicate
records are not required.
(b) Additional records that refiners and importers shall keep. (1)
Beginning with earliest applicable date specified in Sec.
80.1347(a)(2), any refiner for each of its refineries, and any importer
for the gasoline it imports, shall keep records that include the
following information, as applicable:
(i) Its compliance benzene value per Sec. 80.1240, and the
calculations used to obtain that value.
(ii) Its benzene baseline value, per Sec. 80.1280, if the refinery
or importer submitted a benzene baseline application to EPA per Sec.
80.1285.
(iii) The number of early benzene credits generated under Sec.
80.1275, separately by year of generation.
(iv) The number of early benzene credits obtained, separately by
generating refinery and year of generation.
(v) The number of valid credits in possession of the refinery or
importer at the beginning of each averaging period, separately by
generating facility and year of generation.
(vi) The number of standard credits generated by the refinery or
importer under Sec. 80.1290, separately by transferor (if applicable),
by facility and by year of generation.
(vii) The number of credits used, separately by generating facility
and year of generation.
(viii) If any credits were obtained from, or transferred to, other
parties, for each other party, its name, its EPA refinery or importer
registration number, and the number of credits obtained from, or
transferred to, the other party, and the price per credit.
(ix) The number of credits that expired at the end of each
averaging period, separately by generating facility and year of generation.
(x) The number of credits that will be carried over into a
subsequent averaging period, separately by generating facility and year
of generation.
(xi) Contracts or other commercial documents that establish each
transfer of credits from the transferor to the transferee.
(xii) A copy of all reports submitted to EPA under Sec. Sec.
80.1352 and 80.1354; however, duplicate records are not required.
(2)(i) Beginning July 1, 2012, any refiner for each of its
refineries, and any importer for the gasoline it imports, shall
include, in the records required by paragraph (b)(1) of this section,
its maximum average benzene value for the period July 1, 2012 through
December 31, 2013, and for each annual compliance period thereafter.
(ii) Notwithstanding the requirements specified in paragraph
(b)(2)(i) of this section, beginning July 1, 2016, a small refiner
approved under Sec. 80.1340, for each of its refineries, shall
include, in the records required by paragraph (b)(1) of this section,
its maximum average benzene value for the period July 1, 2016 through
December 31, 2017, and for each annual compliance period thereafter.
(3) Records of all supporting calculations pursuant to paragraphs
[[Page 8553]]
(b)(1) or (b)(2) of this section shall also be kept.
(c) Length of time records shall be kept. Records required in this
section shall be kept for five years from the date they were created,
except that records relating to credit transfers shall be kept by the
transferor for five years from the date the credits were transferred,
and shall be kept by the transferee for five years from the date the
credits were transferred, used or terminated, whichever is later.
(d) Make records available to EPA. On request by EPA, the records
specified in this section shall be provided to the Administrator. For
records that are electronically generated or maintained, the equipment
and software necessary to read the records shall be made available, or
upon approval by EPA, electronic records shall be converted to paper
documents which shall be provided to the Administrator.
Sec. 80.1352 What are the pre-compliance reporting requirements for
the gasoline benzene program?
(a) Except as provided in paragraph (c) of this section, a refiner
for each of its refineries shall submit the following information, as
applicable, to EPA by June 1, 2008 and annually thereafter through June
1, 2011, or through June 1, 2015 for small refiners approved under
Sec. 80.1340:
(1) Changes to the information submitted in the company's registration;
(2) Changes to the information submitted for any refinery or import
facility registration;
(3) Gasoline production.
(i) An estimate of the average daily volume (in gallons) of
gasoline produced at each refinery. This estimate shall include RFG,
RBOB, conventional gasoline and conventional gasoline blendstock that
becomes finished gasoline solely upon the addition of oxygenate but
shall exclude gasoline exempted pursuant to Sec. 80.1235.
(ii) The volume estimates specified in paragraph (a)(3)(i) of this
section must be provided for the periods of June 1, 2007 through
December 31, 2007, and calendar years 2008 through 2015.
(4) Benzene concentration. An estimate of the average gasoline
benzene concentration corresponding to the time periods specified in
paragraph (a)(3)(ii) of this section.
(5) ABT participation. For each year through 2015, the following
information related to crdits shall be provided to EPA, if applicable:
(i) If the refinery is expecting to generate benzene credits per
Sec. 80.1275 and/or Sec. 80.1290, the actual or estimated, as
applicable, numbers of early credits and standard credits expected to
be generated.
(ii) If the refinery is expecting to use benzene credits per Sec.
80.1295, the actual or estimated, as applicable, numbers of early
credits and standard credits expected to be banked, transferred or used
to achieve compliance in accordance with Sec. 80.1240.
(6) Information on any project schedule by quarter of known or
projected completion date, by the stage of the project. See, for
example, the five project phases described in EPA's June 2002 Highway
Diesel Progress Review report (EPA420-R-02-016, http://www.epa.gov/
otaq/regs/hd2007/420r02016.pdf): Strategic planning, Planning and
front-end engineering, Detailed engineering and permitting, Procurement
and Construction, and Commissioning and startup.
(7) Basic information regarding the selected technology pathway for
compliance (e.g., precursor re-routing or other technologies, revamp
vs. grassroots, etc.).
(8) Whether capital commitments have been made or are projected to
be made.
(b) The pre-compliance reports due in 2008 and succeeding years
must provide an update of the progress in each of these areas and
include actual values where available.
(c) The pre-compliance reporting requirements of this section do
not apply to refineries that only produce products exempt from the
requirements of this subpart per Sec. 80.1235(b).
Sec. 80.1354 What are the reporting requirements for the gasoline
benzene program?
(a) Beginning with earliest applicable date specified in Sec.
80.1347(a)(2), any refiner for each of its refineries, and any importer
for the gasoline it imports, shall submit to EPA an Annual Gasoline
Benzene Report that contains the information required in this section,
and such other information as EPA may require for each applicable
averaging period.
(b) The Annual Gasoline Benzene Report shall contain the following
information:
(1) Benzene volume percent and volume of any RFG, RBOB, and
conventional gasoline, separately by batch, produced by the refinery or
imported, and the sum of the volumes and the volume-weighted benzene
concentration, in volume percent.
(2)(i) The annual average benzene concentration, per Sec. 80.1238.
(ii) The maximum average benzene concentration per Sec. 80.1240(b).
(3) Any benzene deficit from the previous reporting period, per
Sec. 80.1230(b).
(4) The number of banked benzene credits from the previous
reporting period.
(5) The number of benzene credits generated under Sec. 80.1275, if
applicable.
(6) The number of benzene credits generated under Sec. 80.1290, if
applicable.
(7) The number of benzene credits transferred to the refinery or
importer, per Sec. 80.1295(c), and the cost of the credits, if applicable.
(8) The number of benzene credits transferred from the refinery or
importer, per Sec. 80.1295(c), and the price of the credits, if applicable.
(9) The number of benzene credits terminated or expired.
(10) The compliance benzene value per Sec. 80.1240.
(11) The number of banked benzene credits.
(12) Projected credit generation through compliance year 2015.
(13) Projected credit use through compliance year 2015.
(c) EPA may require submission of additional information to verify
compliance with the requirements of this subpart.
(d) The report required by paragraph (a) of this section shall be--
(1) Submitted on forms and following procedures specified by the
Administrator.
(2) Submitted to EPA by the last day of February each year for the
prior calendar year averaging period.
(3) Signed and certified as correct by the owner or a responsible
corporate officer of the refiner or importer.
Attest Engagements
Sec. 80.1356 What are the attest engagement requirements for gasoline
benzene compliance?
In addition to the requirements for attest engagements that apply
to refiners and importers under Sec. Sec. 80.125 through 80.130,
80.410, and 80.1030, the attest engagements for refiners and importers
must include the following:
(a) EPA Early Credit Generation Baseline Years' Reports. (1) Obtain
and read a copy of the refinery's or importer's annual reports and
batch reports filed with EPA for 2004 and 2005 that contain gasoline
benzene and gasoline volume information.
(2) Agree the yearly volumes of gasoline and benzene concentration,
in volume percent and benzene gallons, reported to EPA in the reports
specified in paragraph (a)(1) of this section with the inventory
reconciliation analysis under Sec. 80.128.
(3) Verify that the information in the refinery's or importer's
batch reports
[[Page 8554]]
filed with EPA under Sec. Sec. 80.75 and 80.105, and any laboratory
test results, agree with the information contained in the reports
specified in paragraph (a)(1) of this section.
(4) Calculate the average benzene concentration for all of the
refinery's or importer's gasoline volume over 2004 and 2005 and verify
that those values agree with the values reported to EPA per Sec. 80.1285.
(b) Baseline for Early Credit Generation. Take the following steps
for the first attest reporting period following approval of a benzene
baseline:
(1) Obtain the EPA benzene baseline approval letter for the
refinery to determine the refinery's applicable benzene baseline under
Sec. 80.1285.
(2) Obtain a written statement from the company representative
identifying the benzene value used as the refinery's baseline and agree
that number to paragraph (b)(1) of this section and to the reports to EPA.
(c) Early Credit Generation. The following procedures shall be
completed for a refinery or importer that generates early benzene
credits per Sec. 80.1275:
(1) Obtain the baseline benzene concentration and gasoline volume
from paragraph (a)(4) of this section.
(2) Obtain the annual benzene report per Sec. 80.1354.
(3) If the benzene value under paragraph (c)(2) of this section is
at least 10 percent less than the value in paragraph (c)(1) of this
section, compute and report as a finding the difference according to
Sec. 80.1275.
(4) Compute and report as a finding the total number of benzene
credits generated by multiplying the value calculated in paragraph
(c)(3) of this section by the volume of gasoline listed in the report
specified in paragraph (c)(2) of this section, and agree this number
with the number reported to EPA.
(d) Standard Credit Generation. The following procedures shall be
completed for a refinery or importer that generates benzene credits per
Sec. 80.1290:
(1) Obtain the annual average benzene value from the annual benzene
report per Sec. 80.1285.
(2) If the annual average benzene value under paragraph (d)(1) of
this section is less than 0.62 percent by volume, compute and report as
a finding the difference according to Sec. 80.1290.
(3) Compute and report as a finding the total number of benzene
credits generated by multiplying the value calculated in paragraph
(d)(2) of this section by the volume of gasoline listed in the report
specified in paragraph (d)(1) of this section, and agree this number
with the number reported to EPA.
(e) Credits Required. The following attest procedures shall be
completed for refineries and importers:
(1) Obtain the annual average benzene concentration and volume from
the annual benzene report per Sec. 80.1285.
(2) If the value in paragraph (e)(1) of this section is greater
than 0.62 percent by volume, compute and report as a finding the
difference between 0.62 percent by volume and the value in paragraph
(e)(1) of this section.
(3) Compute and report as a finding the total benzene credits
required by multiplying the value in paragraph (e)(2) of this section
times the volume of gasoline in paragraph (e)(1) of this section, and
agree this number with the report to EPA.
(4) Obtain a statement from the refiner or importer as to the
portion of the deficit under paragraph (e)(3) of this section that was
resolved with credits, or that was carried forward as a deficit under
Sec. 80.1230(b), and agree these figures with the report to EPA.
(f) Credit Purchases and Sales. The following attest procedures
shall be completed for a refinery or importer that is a transferor or
transferee of credits during an averaging period:
(1) Obtain contracts or other documents for all credits transferred
to another refinery or importer during the year being reviewed; compute
and report as a finding the number and year of creation of credits
represented in these documents as being transferred; and agree these
figures with the report to EPA.
(2) Obtain contracts or other documents for all credits received
during the year being reviewed; compute and report as a finding the
number and year of creation of credits represented in these documents
as being received; and agree with the report to EPA.
(g) Credit Reconciliation. The following attest procedures shall be
completed each year credits were in the refiner's or importer's
possession at any time during the year:
(1) Obtain the credits remaining or the credit deficit from the
previous year from the refiner's or importer's report to EPA for the
previous year.
(2) Compute and report as a finding the net credits remaining at
the conclusion of the year being reviewed by totaling credits as follows:
(i) Credits remaining from the previous year; plus
(ii) Credits generated under paragraphs (c) and (d) of this
section; plus
(iii) Credits purchased under paragraph (f) of this section; minus
(iv) Credits sold under paragraph (f) of this section; minus
(v) Credits used under paragraphs (e) of this section; minus
(vi) Credits expired; minus
(vii) Credit deficit from the previous year.
(3) Agree the credits remaining or the credit deficit at the
conclusion of the year being reviewed with the report to EPA.
(4) If the refinery or importer had a credit deficit for both the
previous year and the year being reviewed, report this fact as a finding.
Violations and Penalties
Sec. 80.1358 What acts are prohibited under the gasoline benzene program?
No person shall--
(a)(1) Produce or import gasoline subject to this subpart that does
not comply with the applicable benzene standards under Sec. 80.1230.
(2) Fail to meet any other requirements of this subpart.
(b) Cause another person to commit an act in violation of paragraph
(a) of this section.
Sec. 80.1359 What evidence may be used to determine compliance with
the prohibitions and requirements of this subpart and liability for
violations of this subpart?
(a) Compliance with the benzene standards of this subpart shall be
determined based on the benzene concentration of the gasoline, measured
using the methodologies specified in Sec. 80.46(e), and other
allowable adjustments. Any evidence or information, including the
exclusive use of such evidence or information, may be used to establish
the benzene concentration of the gasoline if the evidence or
information is relevant to whether the benzene concentration of the
gasoline would have been in compliance with the standard if the
appropriate sampling and testing methodologies had been correctly
performed. Such evidence may be obtained from any source or location
and may include, but is not limited to, test results using methods
other than those specified in Sec. 80.46(e), business records, and
commercial documents.
(b) Determinations of compliance with the requirements of this
subpart other than the benzene standards, and determinations of
liability for any violation of this subpart, may be based on
information from any source or location. Such information may include,
but is not limited to, business records and commercial documents.
[[Page 8555]]
Sec. 80.1360 Who is liable for violations under the gasoline benzene
program?
(a) The following persons are liable for violations of prohibited acts:
(1) Any refiner or importer that violates Sec. 80.1358(a) is
liable for the violation.
(2) Any person that causes another party to violate Sec.
80.1358(a) is liable for a violation of Sec. 80.1358(b).
(3) Any parent corporation is liable for any violations of this
subpart that are committed by any of its wholly-owned subsidiaries.
(4) Each partner to a joint venture, or each owner of a facility
owned by two or more owners, is jointly and severally liable for any
violation of this subpart that occurs at the joint venture facility or
a facility that is owned by the joint owners, or a facility that is
committed by the joint venture operation or any of the joint owners of
the facility.
(b) Any person who violates Sec. 80.1358 is liable for the violation.
Sec. 80.1361 What penalties apply under the gasoline benzene program?
(a) Any person liable for a violation under Sec. 80.1360 is
subject to civil penalties as specified in sections 205 and 211(d) of
the Clean Air Act for every day of each such violation and the amount
of economic benefit or savings resulting from each violation.
(b) Any person liable under Sec. 80.1358(a) and (b) for a
violation of the applicable benzene standards or causing another person
to violate the requirements during any averaging period, is subject to
a separate day of violation for each and every day in the averaging
period. Any person liable under Sec. 80.1360(b) for a failure to
fulfill any requirement of credit generation, transfer, use, banking,
or deficit carry-forward correction is subject to a separate violation
for each and every day in the averaging period in which invalid credits
are generated, banked, transferred or used.
(c) Any person liable under Sec. 80.1360(b) for failure to meet,
or causing a failure to meet, a provision of this subpart is liable for
a separate day of violation for each and every day such provision
remains unfulfilled.
Foreign Refiners
Sec. 80.1363 What are the additional requirements under this subpart
for gasoline produced at foreign refineries?
(a) Definitions.
(1) A foreign refinery is a refinery that is located outside the
United States, the Commonwealth of Puerto Rico, the Virgin Islands,
Guam, American Samoa, and the Commonwealth of the Northern Mariana
Islands (collectively referred to in this section as ``the United States'').
(2) A foreign refiner is a person that meets the definition of
refiner under Sec. 80.2(i) for a foreign refinery.
(3) Benzene-FRGAS means gasoline produced at a foreign refinery
that has been assigned an individual refinery benzene baseline under
Sec. 80.1285, has been approved as a small refiner under Sec.
80.1340, or has been granted temporary relief under Sec. 80.1335, and
that is imported into the United States.
(4) Non-Benzene-FRGAS means
(i) Gasoline meeting any of the conditions specified in paragraph
(a)(3) of this section that is not imported into the United States.
(ii) Gasoline meeting any of the conditions specified in paragraph
(a)(3) of this section during a year when the foreign refiner has opted
to not participate in the Benzene-FRGAS program under paragraph (c)(3)
of this section.
(iii) Gasoline produced at a foreign refinery that has not been
assigned an individual refinery benzene baseline under Sec. 80.1285,
or that has not been approved as a small refiner under Sec. 80.1340,
or that has not been granted temporary relief under Sec. 80.1335.
(5) Certified Benzene-FRGAS means Benzene-FRGAS the foreign refiner
intends to include in the foreign refinery's benzene compliance
calculations under Sec. 80.1240 or credit calculations under Sec.
80.1275 and does include in these calculations when reported to EPA.
(6) Non-Certified Benzene-FRGAS means Benzene-FRGAS that is not
Certified Benzene-FRGAS.
(b) Baseline for Early Credits. For any foreign refiner to obtain
approval under the benzene foreign refiner program of this subpart for
any refinery in order to generate early credits under Sec. 80.1275, it
must apply for approval under the applicable provisions of this subpart.
(1) The refiner shall follow the procedures specified in Sec. Sec.
80.1280 and 80.1285 to establish a baseline of the volume of gasoline
that was produced at the refinery and imported into the United States
during the applicable years.
(2) In making determinations for foreign refinery baselines EPA
will consider all information supplied by a foreign refiner, and in
addition may rely on any and all appropriate assumptions necessary to
make such determinations.
(3) Where a foreign refiner submits a petition that is incomplete
or inadequate to establish an accurate baseline, and the refiner fails
to correct this deficiency after a request for more information, EPA
will not assign an individual refinery baseline.
(c) General requirements for Benzene-FRGAS foreign refiners. A
foreign refiner of a refinery that is approved under the benzene
foreign refiner program of this subpart must designate each batch of
gasoline produced at the foreign refinery that is exported to the
United States as either Certified Benzene-FRGAS or as Non-Certified
Benzene-FRGAS, except as provided in paragraph (c)(3) of this section.
(1) In the case of Certified Benzene-FRGAS, the foreign refiner
must meet all requirements that apply to refiners under this subpart.
(2) In the case of Non-Certified Benzene-FRGAS, the foreign refiner
shall meet all the following requirements:
(i) The designation requirements in this section;
(ii) The recordkeeping requirements in this section and in Sec.
80.1350;
(iii) The reporting requirements in this section and in Sec. Sec.
80.1352 and 80.1354;
(iv) The product transfer document requirements in this section;
(v) The prohibitions in this section and in Sec. 80.1358; and
(vi) The independent audit requirements in this section and in
Sec. 80.1356.
(3)(i) Any foreign refiner that generates early benzene credits
under Sec. 80.1275 shall designate all Benzene-FRGAS as Certified
Benzene-FRGAS for any year that such credits are generated.
(ii) Any foreign refiner that has been approved to produce gasoline
subject to the benzene foreign refiner program for a foreign refinery
under this subpart may elect to classify no gasoline imported into the
United States as Benzene-FRGAS provided the foreign refiner notifies
EPA of the election no later than November 1 preceding the beginning of
the next compliance period.
(iii) An election under paragraph (c)(3)(ii) of this section shall
be for a 12 month compliance period and apply to all gasoline that is
produced by the foreign refinery that is imported into the United
States, and shall remain in effect for each succeeding year unless and
until the foreign refiner notifies EPA of the termination of the
election. The change in election shall take effect at the beginning of
the next annual compliance period.
(d) Designation, product transfer documents, and foreign refiner
certification. (1) Any foreign refiner of a foreign refinery that has
been approved by EPA to produce gasoline subject to the benzene foreign
refiner program
[[Page 8556]]
must designate each batch of Benzene-FRGAS as such at the time the
gasoline is produced, unless the refiner has elected to classify no
gasoline exported to the United States as Benzene-FRGAS under paragraph
(c)(3) of this section.
(2) On each occasion when any person transfers custody or title to
any Benzene-FRGAS prior to its being imported into the United States,
it must include the following information as part of the product
transfer document information:
(i) Designation of the gasoline as Certified Benzene-FRGAS or as
Non-Certified Benzene-FRGAS; and
(ii) The name and EPA refinery registration number of the refinery
where the Benzene-FRGAS was produced.
(3) On each occasion when Benzene-FRGAS is loaded onto a vessel or
other transportation mode for transport to the United States, the
foreign refiner shall prepare a certification for each batch of the
Benzene-FRGAS that meets the following requirements.
(i) The certification shall include the report of the independent
third party under paragraph (f) of this section, and the following
additional information:
(A) The name and EPA registration number of the refinery that
produced the Benzene-FRGAS;
(B) The identification of the gasoline as Certified Benzene-FRGAS
or Non-Certified Benzene-FRGAS;
(C) The volume of Benzene-FRGAS being transported, in gallons;
(D) In the case of Certified Benzene-FRGAS:
(1) The benzene content as determined under paragraph (f) of this
section, and the applicable designations stated in paragraph (d)(2)(i)
of this section; and
(2) A declaration that the Benzene-FRGAS is being included in the
applicable compliance calculations required by EPA under this subpart.
(ii) The certification shall be made part of the product transfer
documents for the Benzene-FRGAS.
(e) Transfers of Benzene-FRGAS to non-United States markets. The
foreign refiner is responsible to ensure that all gasoline classified
as Benzene-FRGAS is imported into the United States. A foreign refiner
may remove the Benzene-FRGAS classification, and the gasoline need not
be imported into the United States, but only if:
(1) The foreign refiner excludes:
(i) The volume of gasoline from the refinery's compliance report
under Sec. 80.1354; and
(ii) In the case of Certified Benzene-FRGAS, the volume of the
gasoline from the compliance report under Sec. 80.1354.
(2) The foreign refiner obtains sufficient evidence in the form of
documentation that the gasoline was not imported into the United States.
(f) Load port independent sampling, testing and refinery identification.
(1) On each occasion that Benzene-FRGAS is loaded onto a vessel for
transport to the United States a foreign refiner shall have an
independent third party:
(i) Inspect the vessel prior to loading and determine the volume of
any tank bottoms;
(ii) Determine the volume of Benzene-FRGAS loaded onto the vessel
(exclusive of any tank bottoms before loading);
(iii) Obtain the EPA-assigned registration number of the foreign
refinery;
(iv) Determine the name and country of registration of the vessel
used to transport the Benzene-FRGAS to the United States; and
(v) Determine the date and time the vessel departs the port serving
the foreign refinery.
(2) On each occasion that Certified Benzene-FRGAS is loaded onto a
vessel for transport to the United States a foreign refiner shall have
an independent third party:
(i) Collect a representative sample of the Certified Benzene-FRGAS
from each vessel compartment subsequent to loading on the vessel and
prior to departure of the vessel from the port serving the foreign refinery;
(ii) Determine the benzene content value for each compartment using
the methodology as specified in Sec. 80.46(e) by one of the following:
(A) The third party analyzing each sample; or
(B) The third party observing the foreign refiner analyze the sample;
(iii) Review original documents that reflect movement and storage
of the Certified Benzene-FRGAS from the refinery to the load port, and
from this review determine:
(A) The refinery at which the Benzene-FRGAS was produced; and
(B) That the Benzene-FRGAS remained segregated from:
(1) Non-Benzene-FRGAS and Non-Certified Benzene-FRGAS; and
(2) Other Certified Benzene-FRGAS produced at a different refinery.
(3) The independent third party shall submit a report:
(i) To the foreign refiner containing the information required
under paragraphs (f)(1) and (f)(2) of this section, to accompany the
product transfer documents for the vessel; and
(ii) To the Administrator containing the information required under
paragraphs (f)(1) and (f)(2) of this section, within thirty days
following the date of the independent third party's inspection. This
report shall include a description of the method used to determine the
identity of the refinery at which the gasoline was produced, assurance
that the gasoline remained segregated as specified in paragraph (n)(1)
of this section, and a description of the gasoline's movement and
storage between production at the source refinery and vessel loading.
(4) The independent third party must:
(i) Be approved in advance by EPA, based on a demonstration of
ability to perform the procedures required in this paragraph (f);
(ii) Be independent under the criteria specified in Sec.
80.65(f)(2)(iii); and
(iii) Sign a commitment that contains the provisions specified in
paragraph (i) of this section with regard to activities, facilities and
documents relevant to compliance with the requirements of this
paragraph (f).
(g) Comparison of load port and port of entry testing. (1)(i) Any
foreign refiner and any United States importer of Certified Benzene-
FRGAS shall compare the results from the load port testing under
paragraph (f) of this section, with the port of entry testing as
reported under paragraph (o) of this section, for the volume of
gasoline and the benzene content value; except as specified in
paragraph (g)(1)(ii) of this section.
(ii) Where a vessel transporting Certified Benzene-FRGAS off loads
this gasoline at more than one United States port of entry, and the
conditions of paragraph (g)(2)(i) of this section are met at the first
United States port of entry, the requirements of paragraph (g)(2) of
this section do not apply at subsequent ports of entry if the United
States importer obtains a certification from the vessel owner that
meets the requirements of paragraph (s) of this section, that the
vessel has not loaded any gasoline or blendstock between the first
United States port of entry and the subsequent port of entry.
(2)(i) The requirements of this paragraph (g)(2) apply if--
(A) The temperature-corrected volumes determined at the port of
entry and at the load port differ by more than one percent; or
(B) The benzene content value determined at the port of entry is
higher than the benzene content value determined at the load port, and
the amount of this difference is greater than the reproducibility
amount specified for the port of entry test result by the American
Society of Testing and Materials (ASTM) for the test method specified
at Sec. 80.46(e).
[[Page 8557]]
(ii) The United States importer and the foreign refiner shall treat
the gasoline as Non-Certified Benzene-FRGAS, and the foreign refiner
shall exclude the gasoline volume from its gasoline volumes
calculations and benzene standard designations under this subpart.
(h) Attest requirements. Refiners, for each annual compliance
period, must arrange to have an attest engagement performed of the
underlying documentation that forms the basis of any report required
under this subpart. The attest engagement must comply with the
procedures and requirements that apply to refiners under Sec. Sec.
80.125 through 80.130, Sec. 80.1356, and other applicable attest
engagement provisions, and must be submitted to the Administrator of
EPA for the prior annual compliance period within the time period
required under Sec. 80.130. The following additional procedures shall
be carried out for any foreign refiner of Benzene-FRGAS.
(1) The inventory reconciliation analysis under Sec. 80.128(b) and
the tender analysis under Sec. 80.128(c) shall include Non-Benzene-FRGAS.
(2) Obtain separate listings of all tenders of Certified Benzene-
FRGAS and of Non-Certified Benzene-FRGAS, and obtain separate listings
of Certified Benzene-FRGAS based on whether it is small refiner
gasoline, gasoline produced through the use of credits, or other
applicable designation under this subpart. Agree the total volume of
tenders from the listings to the gasoline inventory reconciliation
analysis in Sec. 80.128(b), and to the volumes determined by the third
party under paragraph (f)(1) of this section.
(3) For each tender under paragraph (h)(2) of this section, where
the gasoline is loaded onto a marine vessel, report as a finding the
name and country of registration of each vessel, and the volumes of
Benzene-FRGAS loaded onto each vessel.
(4) Select a sample from the list of vessels identified in
paragraph (h)(3) of this section used to transport Certified Benzene-
FRGAS, in accordance with the guidelines in Sec. 80.127, and for each
vessel selected perform the following:
(i) Obtain the report of the independent third party, under
paragraph (f) of this section, and of the United States importer under
paragraph (o) of this section.
(A) Agree the information in these reports with regard to vessel
identification, gasoline volumes and benzene content test results.
(B) Identify, and report as a finding, each occasion the load port
and port of entry benzene content and volume results differ by more
than the amounts allowed in paragraph (g) of this section, and
determine whether the foreign refiner adjusted its refinery
calculations as required in paragraph (g) of this section.
(ii) Obtain the documents used by the independent third party to
determine transportation and storage of the Certified Benzene-FRGAS
from the refinery to the load port, under paragraph (f) of this
section. Obtain tank activity records for any storage tank where the
Certified Benzene-FRGAS is stored, and pipeline activity records for
any pipeline used to transport the Certified Benzene-FRGAS, prior to
being loaded onto the vessel. Use these records to determine whether
the Certified Benzene-FRGAS was produced at the refinery that is the
subject of the attest engagement, and whether the Certified Benzene-
FRGAS was mixed with any Non-Certified Benzene-FRGAS, Non-Benzene-
FRGAS, or any Certified Benzene-FRGAS produced at a different refinery.
(5) Select a sample from the list of vessels identified in
paragraph (h)(3) of this section used to transport Certified and Non-
Certified Benzene-FRGAS, in accordance with the guidelines in Sec.
80.127, and for each vessel selected perform the following:
(i) Obtain a commercial document of general circulation that lists
vessel arrivals and departures, and that includes the port and date of
departure of the vessel, and the port of entry and date of arrival of
the vessel.
(ii) Agree the vessel's departure and arrival locations and dates
from the independent third party and United States importer reports to
the information contained in the commercial document.
(6) Obtain separate listings of all tenders of Non-Benzene-FRGAS,
and perform the following:
(i) Agree the total volume and benzene content of tenders from the
listings to the gasoline inventory reconciliation analysis in Sec.
80.128(b).
(ii) Obtain a separate listing of the tenders under this paragraph
(h)(6) where the gasoline is loaded onto a marine vessel. Select a
sample from this listing in accordance with the guidelines in Sec.
80.127, and obtain a commercial document of general circulation that
lists vessel arrivals and departures, and that includes the port and
date of departure and the ports and dates where the gasoline was off
loaded for the selected vessels. Determine and report as a finding the
country where the gasoline was off loaded for each vessel selected.
(7) In order to complete the requirements of this paragraph (h) an
auditor shall:
(i) Be independent of the foreign refiner;
(ii) Be licensed as a Certified Public Accountant in the United
States and a citizen of the United States, or be approved in advance by
EPA based on a demonstration of ability to perform the procedures
required in Sec. Sec. 80.125 through 80.130 and this paragraph (h);
and
(iii) Sign a commitment that contains the provisions specified in
paragraph (i) of this section with regard to activities and documents
relevant to compliance with the requirements of Sec. Sec. 80.125
through 80.130 and this paragraph (h).
(i) Foreign refiner commitments. Any foreign refiner shall commit
to and comply with the provisions contained in this paragraph (i) as a
condition to being approved as a foreign refiner under this subpart.
(1) Any United States Environmental Protection Agency inspector or
auditor must be given full, complete and immediate access to conduct
inspections and audits of the foreign refinery.
(i) Inspections and audits may be either announced in advance by
EPA, or unannounced.
(ii) Access will be provided to any location where:
(A) Gasoline is produced;
(B) Documents related to refinery operations are kept;
(C) Gasoline or blendstock samples are tested or stored; and
(D) Benzene-FRGAS is stored or transported between the foreign
refinery and the United States, including storage tanks, vessels and
pipelines.
(iii) Inspections and audits may be by EPA employees or contractors
to EPA.
(iv) Any documents requested that are related to matters covered by
inspections and audits must be provided to an EPA inspector or auditor
on request.
(v) Inspections and audits by EPA may include review and copying of
any documents related to:
(A) Refinery baseline establishment, if applicable, including the
volume and benzene content of gasoline; transfers of title or custody
of any gasoline or blendstocks whether Benzene-FRGAS or Non-Benzene-
FRGAS, produced at the foreign refinery during the period January 1,
2004 through December 31, 2005, and any work papers related to refinery
baseline establishment;
(B) The volume and benzene content of Benzene-FRGAS;
(C) The proper classification of gasoline as being Benzene-FRGAS or as
[[Page 8558]]
not being Benzene-FRGAS, or as Certified Benzene-FRGAS or as Non-Certified
Benzene-FRGAS, and all other relevant designations under this subpart;
(D) Transfers of title or custody to Benzene-FRGAS;
(E) Sampling and testing of Benzene-FRGAS;
(F) Work performed and reports prepared by independent third
parties and by independent auditors under the requirements of this
section, including work papers; and
(G) Reports prepared for submission to EPA, and any work papers
related to such reports.
(vi) Inspections and audits by EPA may include taking samples of
gasoline, gasoline additives or blendstock, and interviewing employees.
(vii) Any employee of the foreign refiner must be made available
for interview by the EPA inspector or auditor, on request, within a
reasonable time period.
(viii) English language translations of any documents must be provided
to an EPA inspector or auditor, on request, within 10 working days.
(ix) English language interpreters must be provided to accompany
EPA inspectors and auditors, on request.
(2) An agent for service of process located in the District of
Columbia shall be named, and service on this agent constitutes service
on the foreign refiner or any employee of the foreign refiner for any
action by EPA or otherwise by the United States related to the
requirements of this subpart.
(3) The forum for any civil or criminal enforcement action related
to the provisions of this section for violations of the Clean Air Act
or regulations promulgated thereunder shall be governed by the Clean
Air Act, including the EPA administrative forum where allowed under the
Clean Air Act.
(4) United States substantive and procedural laws shall apply to
any civil or criminal enforcement action against the foreign refiner or
any employee of the foreign refiner related to the provisions of this
section.
(5) Submitting a petition for participation in the benzene foreign
refiner program or producing and exporting gasoline under any such
program, and all other actions to comply with the requirements of this
subpart relating to participation in any benzene foreign refiner
program, or to establish an individual refinery gasoline benzene
baseline under this subpart constitute actions or activities covered by
and within the meaning of the provisions of 28 U.S.C. 1605(a)(2), but
solely with respect to actions instituted against the foreign refiner,
its agents and employees in any court or other tribunal in the United
States for conduct that violates the requirements applicable to the
foreign refiner under this subpart, including conduct that violates the
False Statements Accountability Act of 1996 (18 U.S.C. 1001) and
section 113(c)(2) of the Clean Air Act (42 U.S.C. 7413).
(6) The foreign refiner, or its agents or employees, will not seek
to detain or to impose civil or criminal remedies against EPA
inspectors or auditors, whether EPA employees or EPA contractors, for
actions performed within the scope of EPA employment related to the
provisions of this section.
(7) The commitment required by this paragraph (i) shall be signed
by the owner or president of the foreign refiner business.
(8) In any case where Benzene-FRGAS produced at a foreign refinery
is stored or transported by another company between the refinery and
the vessel that transports the Benzene-FRGAS to the United States, the
foreign refiner shall obtain from each such other company a commitment
that meets the requirements specified in paragraphs (i)(1) through (7)
of this section, and these commitments shall be included in the foreign
refiner's petition to participate in any benzene foreign refiner program.
(j) Sovereign immunity. By submitting a petition for participation
in any benzene foreign refiner program under this subpart (and
baseline, if applicable) under this section, or by producing and
exporting gasoline to the United States under any such program, the
foreign refiner, and its agents and employees, without exception,
become subject to the full operation of the administrative and judicial
enforcement powers and provisions of the United States without
limitation based on sovereign immunity, with respect to actions
instituted against the foreign refiner, its agents and employees in any
court or other tribunal in the United States for conduct that violates
the requirements applicable to the foreign refiner under this subpart,
including conduct that violates the False Statements Accountability Act
of 1996 (18 U.S.C. 1001) and section 113(c)(2) of the Clean Air Act (42
U.S.C. 7413).
(k) Bond posting. Any foreign refiner shall meet the requirements
of this paragraph (k) as a condition to approval as benzene foreign
refiner under this subpart.
(1) The foreign refiner shall post a bond of the amount calculated
using the following equation:
Bond = G x $0.01
Where:
Bond = amount of the bond in U.S. dollars
G = the largest volume of gasoline produced at the foreign refinery
and exported to the United States, in gallons, during a single
calendar year among the most recent of the following calendar years,
up to a maximum of five calendar years: the calendar year
immediately preceding the date the refinery's baseline petition is
submitted, the calendar year the baseline petition is submitted, and
each succeeding calendar year.
(2) Bonds shall be posted by:
(i) Paying the amount of the bond to the Treasurer of the United
States;
(ii) Obtaining a bond in the proper amount from a third party
surety agent that is payable to satisfy United States administrative or
judicial judgments against the foreign refiner, provided EPA agrees in
advance as to the third party and the nature of the surety agreement;
or
(iii) An alternative commitment that results in assets of an
appropriate liquidity and value being readily available to the United
States, provided EPA agrees in advance as to the alternative commitment.
(3) Bonds posted under this paragraph (k) shall--
(i) Be used to satisfy any judicial judgment that results from an
administrative or judicial enforcement action for conduct in violation
of this subpart, including where such conduct violates the False
Statements Accountability Act of 1996 (18 U.S.C. 1001) and section
113(c)(2) of the Clean Air Act (42 U.S.C. 7413);
(ii) Be provided by a corporate surety that is listed in the United
States Department of Treasury Circular 570 ``Companies Holding
Certificates of Authority as Acceptable Sureties on Federal Bonds'';
and
(iii) Include a commitment that the bond will remain in effect for
at least five years following the end of latest annual reporting period
that the foreign refiner produces gasoline pursuant to the requirements
of this subpart.
(4) On any occasion a foreign refiner bond is used to satisfy any
judgment, the foreign refiner shall increase the bond to cover the
amount used within 90 days of the date the bond is used.
(5) If the bond amount for a foreign refiner increases, the foreign
refiner shall increase the bond to cover the shortfall within 90 days
of the date the bond amount changes. If the bond amount decreases, the
foreign refiner may reduce the amount of the bond beginning 90 days
after the date the bond amount changes.
(l) [Reserved]
(m) English language reports. Any report or other document submitted to
[[Page 8559]]
EPA by a foreign refiner shall be in English language, or shall include
an English language translation.
(n) Prohibitions. (1) No person may combine Certified Benzene-FRGAS
with any Non-Certified Benzene-FRGAS or Non-Benzene-FRGAS, and no
person may combine Certified Benzene-FRGAS with any Certified Benzene-
FRGAS produced at a different refinery, until the importer has met all
the requirements of paragraph (o) of this section, except as provided
in paragraph (e) of this section.
(2) No foreign refiner or other person may cause another person to
commit an action prohibited in paragraph (n)(1) of this section, or
that otherwise violates the requirements of this section.
(o) United States importer requirements. Any United States importer
shall meet the following requirements:
(1) Each batch of imported gasoline shall be classified by the
importer as being Benzene-FRGAS or as Non-Benzene-FRGAS, and each batch
classified as Benzene-FRGAS shall be further classified as Certified
Benzene-FRGAS or as Non-Certified Benzene-FRGAS.
(2) Gasoline shall be classified as Certified Benzene-FRGAS or as
Non-Certified Benzene-FRGAS according to the designation by the foreign
refiner if this designation is supported by product transfer documents
prepared by the foreign refiner as required in paragraph (d) of this
section, unless the gasoline is classified as Non-Certified Benzene-
FRGAS under paragraph (g) of this section. Additionally, the importer
shall comply with all requirements of this subpart applicable to importers.
(3) For each gasoline batch classified as Benzene-FRGAS, any United
States importer shall perform the following procedures.
(i) In the case of both Certified and Non-Certified Benzene-FRGAS,
have an independent third party:
(A) Determine the volume of gasoline in the vessel;
(B) Use the foreign refiner's Benzene-FRGAS certification to
determine the name and EPA-assigned registration number of the foreign
refinery that produced the Benzene-FRGAS;
(C) Determine the name and country of registration of the vessel
used to transport the Benzene-FRGAS to the United States; and
(D) Determine the date and time the vessel arrives at the United
States port of entry.
(ii) In the case of Certified Benzene-FRGAS, have an independent
third party:
(A) Collect a representative sample from each vessel compartment
subsequent to the vessel's arrival at the United States port of entry
and prior to off loading any gasoline from the vessel;
(B) Obtain the compartment samples; and
(C) Determine the benzene content value of each compartment sample
using the methodology specified at Sec. 80.46(e) by the third party
analyzing the sample or by the third party observing the importer
analyze the sample.
(4) Any importer shall submit reports within 30 days following the
date any vessel transporting Benzene-FRGAS arrives at the United States
port of entry:
(i) To the Administrator containing the information determined
under paragraph (o)(3) of this section; and
(ii) To the foreign refiner containing the information determined
under paragraph (o)(3)(ii) of this section, and including
identification of the port at which the product was offloaded.
(5) Any United States importer shall meet all other requirements of
this subpart for any imported gasoline that is not classified as
Certified Benzene-FRGAS under paragraph (o)(2) of this section.
(p) Truck imports of Certified Benzene-FRGAS produced at a foreign
refinery.
(1) Any refiner whose Certified Benzene-FRGAS is transported into
the United States by truck may petition EPA to use alternative
procedures to meet the following requirements:
(i) Certification under paragraph (d)(5) of this section;
(ii) Load port and port of entry sampling and testing under
paragraphs (f) and (g) of this section;
(iii) Attest under paragraph (h) of this section; and
(iv) Importer testing under paragraph (o)(3) of this section.
(2) These alternative procedures must ensure Certified Benzene-
FRGAS remains segregated from Non-Certified Benzene-FRGAS and from Non-
Benzene-FRGAS until it is imported into the United States. The petition
will be evaluated based on whether it adequately addresses the following:
(i) Provisions for monitoring pipeline shipments, if applicable,
from the refinery, that ensure segregation of Certified Benzene-FRGAS
from that refinery from all other gasoline;
(ii) Contracts with any terminals and/or pipelines that receive
and/or transport Certified Benzene-FRGAS, that prohibit the commingling
of Certified Benzene-FRGAS with any of the following:
(A) Other Certified Benzene-FRGAS from other refineries.
(B) All Non-Certified Benzene-FRGAS.
(C) All Non-Benzene-FRGAS;
(iii) Procedures for obtaining and reviewing truck loading records
and United States import documents for Certified Benzene-FRGAS to
ensure that such gasoline is only loaded into trucks making deliveries
to the United States;
(iv) Attest procedures to be conducted annually by an independent
third party that review loading records and import documents based on
volume reconciliation, or other criteria, to confirm that all Certified
Benzene-FRGAS remains segregated throughout the distribution system and
is only loaded into trucks for import into the United States.
(3) The petition required by this section must be submitted to EPA
along with the application for temporary refiner relief individual
refinery benzene standard under this subpart.
(q) Withdrawal or suspension of foreign refiner status. EPA may
withdraw or suspend a foreign refiner's benzene baseline or standard
approval for a foreign refinery where--
(1) A foreign refiner fails to meet any requirement of this section;
(2) A foreign government fails to allow EPA inspections as provided
in paragraph (i)(1) of this section;
(3) A foreign refiner asserts a claim of, or a right to claim,
sovereign immunity in an action to enforce the requirements in this
subpart; or
(4) A foreign refiner fails to pay a civil or criminal penalty that
is not satisfied using the foreign refiner bond specified in paragraph
(k) of this section.
(r) Early use of a foreign refiner benzene baseline.
(1) A foreign refiner may begin using an individual refinery
benzene baseline under this subpart before EPA has approved the
baseline, provided that:
(i) A baseline petition has been submitted as required in paragraph
(b) of this section;
(ii) EPA has made a provisional finding that the baseline petition
is complete;
(iii) The foreign refiner has made the commitments required in
paragraph (i) of this section;
(iv) The persons that will meet the independent third party and
independent attest requirements for the foreign refinery have made the
commitments required in paragraphs (f)(3)(iii) and (h)(7)(iii) of this
section; and
(v) The foreign refiner has met the bond requirements of paragraph
(k) of this section.
(2) In any case where a foreign refiner uses an individual refinery
baseline
[[Page 8560]]
before final approval under paragraph (r)(1) of this section, and the
foreign refinery baseline values that ultimately are approved by EPA
are more stringent than the early baseline values used by the foreign
refiner, the foreign refiner shall recalculate its compliance, ab
initio, using the baseline values approved by the EPA, and the foreign
refiner shall be liable for any resulting violation of the requirements
of this subpart.
(s) Additional requirements for petitions, reports and
certificates. Any petition for approval to produce gasoline subject to
the benzene foreign refiner program, any alternative procedures under
paragraph (p) of this section, any report or other submission required
by paragraph (c), (f)(2), or (i) of this section, and any certification
under paragraph (d)(3) of this section shall be--
(1) Submitted in accordance with procedures specified by the
Administrator, including use of any forms that may be specified by the
Administrator.
(2) Be signed by the president or owner of the foreign refiner
company, or by that person's immediate designee, and shall contain the
following declaration:
I hereby certify: (1) That I have actual authority to sign on
behalf of and to bind [insert name of foreign refiner] with regard
to all statements contained herein; (2) that I am aware that the
information contained herein is being Certified, or submitted to the
United States Environmental Protection Agency, under the
requirements of 40 CFR part 80, subpart L, and that the information
is material for determining compliance under these regulations; and
(3) that I have read and understand the information being Certified
or submitted, and this information is true, complete and correct to
the best of my knowledge and belief after I have taken reasonable
and appropriate steps to verify the accuracy thereof. I affirm that
I have read and understand the provisions of 40 CFR part 80, subpart
L, including 40 CFR 80.1363 apply to [insert name of foreign
refiner]. Pursuant to Clean Air Act section 113(c) and 18 U.S.C.
1001, the penalty for furnishing false, incomplete or misleading
information in this certification or submission is a fine of up to
$10,000 U.S., and/or imprisonment for up to five years.
PART 85--CONTROL OF AIR POLLUTION FROM MOBILE SOURCES
? 11a. The authority citation for part 85 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart P--[Amended]
? 11b. Section 85.1515 is amended by adding paragraphs (c)(2)(vii),
(c)(2)(viii), and (c)(8) to read as follows.
Sec. 85.1515 Emission standards and test procedures applicable to
imported nonconforming motor vehicles and motor vehicle engines.
* * * * *
(c) * * *
(2) * * *
(vii) Nonconforming LDV/LLDTs originally manufactured in OP years
2009 and later must meet the evaporative emission standards in Table
S09-1 in 40 CFR 86.1811-09(e). However, LDV/LLDTs originally
manufactured in OP years 2009 and 2010 and imported by ICIs who qualify
as small volume manufacturers as defined in 40 CFR 86.1838-01 are
exempt from the LDV/LLDT evaporative emission standards in Table S09-1
in 40 CFR 86.1811-09(e), but must comply with the Tier 2 evaporative
emission standards in Table S04-3 in 40 CFR 86.1811-04(e).
(viii) Nonconforming HLDTs and MDPVs originally manufactured in OP
years 2010 and later must meet the evaporative emission standards in
Table S09-1 in 40 CFR 86.1811-09(e). However, HLDTs and MDPVs
originally manufactured in OP years 2010 and 2011 and imported by ICIs,
who qualify as small volume manufacturers as defined in 40 CFR 86.1838-
01, are exempt from the HLDTs and MDPVs evaporative emission standards
in Table S09-1 in 40 CFR 86.1811-09(e), but must comply with the Tier 2
evaporative emission standards in Table S04-3 in 40 CFR 86.1811-04(e).
* * * * *
(8)(i) Nonconforming LDV/LLDTs originally manufactured in OP years
2010 and later must meet the cold temperature NHMC emission standards
in Table S10-1 in 40 CFR 86.1811-10(g).
(ii) Nonconforming HLDTs and MDPVs originally manufactured in OP
years 2012 and later must meet the cold temperature NHMC emission
standards in Table S10-1 in 40 CFR 86.1811-10(g).
(iii) ICIs, which qualify as small volume manufacturers, are exempt
from the cold temperature NMHC phase-in intermediate percentage
requirements described in 40 CFR 86.1811-10(g)(3). See 40 CFR 86.1811-
04(k)(5)(vi) and (vii).
(iv) As an alternative to the requirements of paragraphs (c)(8)(i)
and (ii) of this section, ICIs may elect to meet a cold temperature
NMHC family emission level below the cold temperature NMHC fleet
average standards specified in Table S10-1 of 40 CFR 86.1811-10 and
bank or sell credits as permitted in 40 CFR 86.1864-10. An ICI may not
meet a higher cold temperature NMHC family emission level than the
fleet average standards in Table S10-1 of 40 CFR 86.1811-10 as
specified in paragraphs (c)(8)(i) and (ii) of this section, unless it
demonstrates to the Administrator at the time of certification that it
has obtained appropriate and sufficient NMHC credits from another
manufacturer, or has generated them in a previous model year or in the
current model year and not traded them to another manufacturer or used
them to address other vehicles as permitted in 40 CFR 86.1864-10.
(v) Where an ICI desires to obtain a certificate of conformity
using a higher cold temperature NMHC family emission level than
specified in paragraphs (c)(8)(i) and (ii) of this section, but does
not have sufficient credits to cover vehicles imported under such
certificate, the Administrator may issue such certificate if the ICI
has also obtained a certificate of conformity for vehicles certified
using a cold temperature NMHC family emission level lower than that
required under paragraphs (c)(8)(i) and (ii) of this section. The ICI
may then import vehicles to the higher cold temperature NMHC family
emission level only to the extent that it has generated sufficient
credits from vehicles certified to a family emission level lower than
the cold temperature NMHC fleet average standard during the same model year.
(vi) ICIs using cold temperature NMHC family emission levels higher
than the cold temperature NMHC fleet average standards specified in
paragraphs (c)(8)(i) and (ii) of this section must monitor their
imports so that they do not import more vehicles certified to such
family emission levels than their available credits can cover. ICIs
must not have a credit deficit at the end of a model year and are not
permitted to use the deficit carryforward provisions provided in 40 CFR
86.1864-10.
(vii) The Administrator may condition the certificates of
conformity issued to ICIs as necessary to ensure that vehicles subject
to this paragraph (c)(8) comply with the applicable cold temperature
NMHC fleet average standard for each model year.
* * * * *
PART 86--CONTROL OF EMISSIONS FROM NEW AND IN-USE HIGHWAY VEHICLES
AND ENGINES
? 12. The authority citation for part 86 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
[[Page 8561]]
Subpart H--[Amended]
? 13. Section 86.701-94 is amended by revising paragraph (a) to read as
follows:
Sec. 86.701-94 General applicability.
(a) The provisions of this subpart apply to: 1994 through 2003
model year Otto-cycle and diesel light-duty vehicles; 1994 through 2003
model year Otto-cycle and diesel light-duty trucks; and 1994 and later
model year Otto-cycle and diesel heavy-duty engines; and 2001 and later
model year Otto-cycle heavy-duty vehicles and engines certified under
the provisions of subpart S of this part. The provisions of subpart B
of this part apply to this subpart. The provisions of Sec. 86.1811-
04(a)(5) and (p) apply to 2004 and later model year light-duty
vehicles, light-duty trucks, and medium duty passenger vehicles.
* * * * *
Subpart S--[Amended]
? 14. Section 86.1803-01 is amended by revising the definition of
``Banking'' and adding the definition for ``Fleet average cold
temperature NMHC standard'' in alphabetical order to read as follows:
Sec. 86.1803-01 Definitions.
* * * * *
Banking means one of the following:
(1) The retention of NOX emission credits for complete
heavy-duty vehicles by the manufacturer generating the emission
credits, for use in future model year certification programs as
permitted by regulation.
(2) The retention of cold temperature non-methane hydrocarbon
(NMHC) emission credits for light-duty vehicles, light-duty trucks, and
medium-duty passenger vehicles by the manufacturer generating the
emission credits, for use in future model year certification programs
as permitted by regulation.
* * * * *
Fleet average cold temperature NMHC standard means, for light-duty
vehicles, light-duty trucks and medium-duty passenger vehicles, an NMHC
cold temperature standard imposed over an individual manufacturer's
total 50-State U.S. sales (or a fraction of total U.S. sales during
phase-in years), as ``U.S. sales'' is defined to include all national
sales, including points-of-first sale in California, of a given model
year. Manufacturers determine their compliance with such a standard by
averaging, on a sales-weighted basis, the individual NMHC ``Family
Emission Limits'' (FEL--as defined in this subpart) to which light-duty
vehicles, light-duty trucks and medium-duty passenger vehicles were
certified and sold for that model year.
* * * * *
? 15. Section 86.1805-04 is amended by adding paragraph (g) to read as
follows:
Sec. 86.1805-04 Useful life.
* * * * *
(g) Where cold temperature NMHC standards are applicable, the
useful life requirement for compliance with the cold temperature NMHC
standard only is as follows:
(1) For LDV/LLDTs, 10 years or 120,000 miles, whichever occurs first.
(2) For HLDT/MDPVs, 11 years or 120,000 miles, whichever occurs first.
? 16. A new Sec. 86.1809-10 is added to Subpart S to read as follows:
Sec. 86.1809-10 Prohibition of defeat devices.
(a) No new light-duty vehicle, light-duty truck, medium-duty
passenger vehicle, or complete heavy-duty vehicle shall be equipped
with a defeat device.
(b) The Administrator may test or require testing on any vehicle at
a designated location, using driving cycles and conditions that may
reasonably be expected to be encountered in normal operation and use,
for the purposes of investigating a potential defeat device.
(c) For cold temperature CO and cold temperature NMHC emission
control, the Administrator will use a guideline to determine the
appropriateness of the CO and NMHC emission control at ambient
temperatures between 25 [deg]F (the upper bound of the temperatue test
range) and 68 [deg]F (the lower bound of the FTP range). The guideline
for CO emission congruity across the intermediate temperature range is
the linear interpolation between the CO standard applicable at 25
[deg]F and the CO standard applicable at 68 [deg]F. The guideline for
NMHC emission congruity across the intermediate temperature range is
the linear interpolation between the NMHC FEL pass limit (e.g. 0.3499
g/mi for a 0.3 g/mi FEL) applicable at 20 [deg]F and the Tier 2 NMOG
standard to which the vehicle was certified at 68 [deg]F, where the
intermediate temperature NMHC level is rounded to the nearest hundredth
for comparison to the interpolated line. For vehicles that exceed this
CO emissions guideline or this NMHC emissions guideline upon
intermediate temperature cold testing:
(1) If the CO emission level is greater than the 20 [deg]F emission
standard, the vehicle will automatically be considered to be equipped
with a defeat device without further investigation. If the intermediate
temperature NMHC emission level, rounded to the nearest hundredth, is
greater than the 20 [deg]F FEL pass limit, the vehicle will be presumed
to have a defeat device unless the manufacturer provides evidence to
EPA's satisfaction that the cause of the test result in question is not
due to a defeat device.
(2) If the CO emission level does not exceed the 20 [deg]F emission
standard, the Administrator may investigate the vehicle design for the
presence of a defeat device under paragraph (d) of this section. If the
intermediate temperature NMHC emission level, rounded to the nearest
hundredth, does not exceed the 20 [deg]F FEL pass limit the
Administrator may investigate the vehicle design for the presence of a
defeat device under paragraph (d) of this section.
(d) The following provisions apply for vehicle designs designated
by the Administrator to be investigated for possible defeat devices:
(1) The manufacturer must show to the satisfaction of the
Administrator that the vehicle design does not incorporate strategies
that unnecessarily reduce emission control effectiveness exhibited
during the Federal Test Procedure or Supplemental Federal Test
Procedure (FTP or SFTP) when the vehicle is operated under conditions
that may reasonably be expected to be encountered in normal operation
and use.
(2) The following information requirements apply:
(i) Upon request by the Administrator, the manufacturer must
provide an explanation containing detailed information regarding test
programs, engineering evaluations, design specifications, calibrations,
on-board computer algorithms, and design strategies incorporated for
operation both during and outside of the Federal emission test procedure.
(ii) For purposes of investigations of possible cold temperature CO
or cold temperature NMHC defeat devices under this paragraph (d), the
manufacturer must provide an explanation to show, to the satisfaction
of the Administrator, that CO emissions and NMHC emissions are
reasonably controlled in reference to the linear guideline across the
intermediate temperature range.
(e) For each test group of Tier 2 LDV/LLDTs and HLDT/MDPVs and
interim non-Tier 2 LDV/LLDTs and HLDT/MDPVs the manufacturer must
submit, with the Part II certification application, an engineering
evaluation demonstrating to the satisfaction of the Administrator that
a discontinuity in emissions of non-methane organic gases, carbon
monoxide, oxides of nitrogen and formaldehyde measured on the
[[Page 8562]]
Federal Test Procedure (subpart B of this part) does not occur in the
temperature range of 20 to 86 [deg]F. For diesel vehicles, the
engineering evaluation must also include particulate emissions.
? 17. A new Sec. 86.1810-09 is added to Subpart S to read as follows:
Sec. 86.1810-09 General standards; increase in emissions; unsafe
condition; waivers.
Section 86.1810-09 includes text that specifies requirements that
differ from Sec. 86.1810-01. Where a paragraph in Sec. 86.1810-01 is
identical and applicable to Sec. 86.1810-09, this may be indicated by
specifying the corresponding paragraph and the statement ``[Reserved].
For guidance see Sec. 86.1810-01.'' Where a corresponding paragraph of
Sec. 86.1810-01 is not applicable, this is indicated by the statement
``[Reserved].'' This section applies to model year 2009 and later
light-duty vehicles and light-duty trucks fueled by gasoline, diesel,
methanol, ethanol, natural gas and liquefied petroleum gas fuels. This
section also applies to MDPVs and complete heavy-duty vehicles
certified according to the provisions of this subpart. Multi-fueled
vehicles (including dual-fueled and flexible-fueled vehicles) must
comply with all requirements established for each consumed fuel (or
blend of fuels in the case of flexible fueled vehicles). The standards
of this subpart apply to both certification and in-use vehicles unless
otherwise indicated. This section also applies to hybrid electric
vehicles and zero emission vehicles. Unless otherwise specified,
requirements and provisions of this subpart applicable to methanol
fueled vehicles are also applicable to Tier 2 and interim non-Tier 2
ethanol fueled vehicles.
(a) through (e) [Reserved]. For guidance see Sec. 86.1810-01.
(f) Altitude requirements. (1) All emission standards apply at low
altitude conditions and at high altitude conditions, except for
supplemental exhaust emission standards, cold temperature NMHC emission
standards, and the evaporative emission standards as described in Sec.
86.1811-09(e). Supplemental exhaust emission standards, as described in
Sec. 86.1811-04(f), apply only at low altitude conditions. Cold
temperature NMHC emission standards, as described in Sec. 86.1811-
10(g), apply only at low altitude conditions. Tier 2 evaporative
emission standards apply at high altitude conditions as specified in
Sec. 86.1810-01(f) and (j), and Sec. 86.1811-04(e).
(2) For vehicles that comply with the cold temperature NMHC
standards, manufacturers must submit an engineering evaluation
indicating that common calibration approaches are utilized at high
altitudes. Any deviation from low altitude emission control practices
must be included in the auxiliary emission control device (AECD)
descriptions submitted at certification. Any AECD specific to high
altitude must require engineering emission data for EPA evaluation to
quantify any emission impact and validity of the AECD.
(g) through (p) [Reserved]. For guidance see Sec. 86.1810-01.
? 18. Section 86.1811-04 is amended by adding paragraphs (k)(5)(iv)
through (vii) and (q)(1)(vi) through (ix) to read as follows:
Sec. 86.1811-04 Emission standards for light-duty vehicles, light-
duty trucks and medium-duty passenger vehicles.
* * * * *
(k) * * *
(5) * * *
(iv) Vehicles produced by small volume manufacturers, as defined in
Sec. 86.1838-01, are exempt from the LDV/LLDT evaporative emissions
standards in Table S09-1 of Sec. 86.1811-09(e) for model years 2009
and 2010, but must comply with the Tier 2 evaporative emission
standards in Table S04-3 in paragraph (e)(1) of this section for model
years 2009 and 2010.
(v) Vehicles produced by small volume manufacturers, as defined in
Sec. 86.1838-01, are exempt from the HLDT/MDPV evaporative emissions
standards in Table S09-1 of Sec. 86.1811-09(e) for model years 2010
and 2011, but must comply with the Tier 2 evaporative emission
standards in Table S04-3 in paragraph (e)(1) of this section for model
years 2010 and 2011.
(vi) Small volume manufacturers, as defined in Sec. 86.1838-01,
are exempt from the LDV/LLDT cold temperature NMHC phase-in
requirements in Table S10-1 of Sec. 86.1811-10(g) for model years
2010, 2011, and 2012, but must comply with the 100% requirement for
2013 and later model years for cold temperature NMHC standards.
(vii) Small volume manufacturers, as defined in Sec. 86.1838-01,
are exempt from the HLDT/MDPV cold temperature NMHC phase-in
requirements in Table S10-1 of Sec. 86.1811-10(g) for model years
2012, 2013, and 2014, but must comply with the 100% requirement for
2015 and later model years for cold temperature NMHC standards.
* * * * *
(q) * * *
(1) * * *
(vi) Defer compliance with the LDV/LLDT evaporative emissions
standards in Table S09-1 of Sec. 86.1811-09(e) until 2013, and defer
100% compliance with the LDV/LLDT evaporative emissions standards in
Table S09-2 of Sec. 86.1811-09(e) until 2016. (The hardship relief may
be extended one additional model year--two model years total.)
(vii) Defer compliance with the HLDT/MDPV evaporative emissions
standards in Table S09-1 of Sec. 86.1811-09(e) until 2014, and defer
100% compliance with the HLDT/MDPV evaporative emissions standards in
Table S09-2 of Sec. 86.1811-09(e) until 2016. (The hardship relief may
be extended one additional model year--two model years total.)
(viii) Defer 100% compliance with the LDV/LLDT cold temperature
NMHC standards in Table S10-X of Sec. 86.1811-10(g) until 2015. (The
hardship relief may be extended one additional model year--two model
years total.)
(ix) Defer 100% compliance with the HLDT/MDPV cold temperature NMHC
standards in Table S10-X of Sec. 86.1811-10(g) until 2017. (The
hardship relief may be extended one additional model year--two model
years total.)
* * * * *
? 19. A new Sec. 86.1811-09 is added to Subpart S to read as follows:
Sec. 86.1811-09 Emission standards for light-duty vehicles, light-
duty trucks and medium-duty passenger vehicles.
Section 86.1811-09 includes text that specifies requirements that
differ from Sec. 86.1811-04. Where a paragraph in Sec. 86.1811-04 is
identical and applicable to Sec. 86.1811-09, this may be indicated by
specifying the corresponding paragraph and the statement ``[Reserved].
For guidance see Sec. 86.1811-04.'' Where a corresponding paragraph of
Sec. 86.1811-04 is not applicable, this is indicated by the statement
``[Reserved].''
(a) Applicability. (1) This section contains regulations
implementing emission standards for all LDVs, LDTs and MDPVs. This
section applies to 2009 and later model year LDVs, LDTs and MDPVs
fueled by gasoline, diesel, methanol, ethanol, natural gas and
liquefied petroleum gas fuels, except as noted. Additionally, this
section applies to hybrid electric vehicles (HEVs) and zero emission
vehicles (ZEVs). Unless otherwise specified, multi-fueled vehicles must
comply with all requirements established for each consumed fuel.
(2) through (4) [Reserved]. For guidance see Sec. 86.1811-04.
(5) The exhaust emission standards and evaporative emission
standards of this section apply equally to certification and in-use
LDVs, LDTs and
[[Page 8563]]
MDPVs, unless otherwise specified. See paragraph (t) of this section
for interim evaporative emission in-use standards that are different
than the certification evaporative emission standards specified in
paragraph (e) of this section.
(b) through (d) [Reserved]. For guidance see Sec. 86.1811-04.
(e) Evaporative emission standards. Evaporative emissions from
gasoline-fueled, natural gas-fueled, liquefied petroleum gas-fueled,
ethanol-fueled and methanol-fueled vehicles must not exceed the
standards in this paragraph (e). The standards apply equally to
certification and in-use vehicles.
(1) Diurnal-plus-hot soak evaporative hydrocarbon standards. (i)
Hydrocarbons for LDV/LLDTs, HLDTs and MDPVs that are gasoline-fueled,
dedicated natural gas-fueled, dedicated liquefied petroleum gas-fueled,
dedicated ethanol-fueled, dedicated methanol-fueled and multi-fueled
vehicles when operating on gasoline must not exceed the diurnal plus
hot soak standards shown in Table S09-1 for the full three diurnal test
sequence and for the supplemental two diurnal test sequence. The
standards apply equally to certification and in-use vehicles, except as
otherwise specified in paragraph (t) of this section. Table S09-1 follows:
Table S09-1.--Light-Duty Diurnal Plus Hot Soak Evaporative Emission Standards
[grams per test]
----------------------------------------------------------------------------------------------------------------
Supplemental 2
3 day day
Vehicle category Model year diurnal+hot diurnal+hot
soak soak
----------------------------------------------------------------------------------------------------------------
LDVs............................................................ 2009 0.50 0.65
LLDTs........................................................... 2009 0.65 0.85
HLDTs........................................................... 2010 0.90 1.15
MDPVs........................................................... 2010 1.00 1.25
----------------------------------------------------------------------------------------------------------------
(ii) Hydrocarbons for LDV/LLDTs, HLDTs and MDPVs that are multi-
fueled vehicles operating on non-gasoline fuel must not exceed the
diurnal plus hot soak standards shown in Table S09-2 for the full three
diurnal test sequence and for the supplemental two diurnal test
sequence. The standards apply equally to certification and in-use
vehicles except as otherwise specified in paragraph (t) of this
section. Table S09-2 follows:
Table S09-2.--Light-Duty Diurnal Plus Hot Soak Evaporative Emission
Standards: Non-Gasoline Portion of Multi-Fueled Vehicles
[grams per test]
------------------------------------------------------------------------
Supplemental 2
3 day day
Vehicle category diurnal+hot diurnal+hot
soak soak
------------------------------------------------------------------------
LDVs.................................... 0.50 0.65
LLDTs................................... 0.65 0.85
HLDTs................................... 0.90 1.15
MDPVs................................... 1.00 1.25
------------------------------------------------------------------------
(iii) For multi-fueled vehicles operating on non-gasoline fuel,
manufacturers must comply with the phase-in requirements in Table S09-3
of this paragraph for the evaporative emission requirements specified
in Table S09-2 of this section. Phase-in schedules are grouped together
for LDV/LLDTs and HLDT/MDPVs. These requirements specify the minimum
percentage of the manufacturer's LDV/LLDT/HLDT/MDPV 50-State sales, by
model year, that must meet the requirements for their full useful
lives. Table S09-3 follows:
Table S09-3.--Phase-In Percentages for Light-Duty Diurnal Plus Hot Soak
Evaporative Emission Standards: Non-Gasoline Portion of Multi-Fueled
Vehicles
------------------------------------------------------------------------
Percentage of
vehicles that
must meet
Model year evaporative
emission
requirements
------------------------------------------------------------------------
2012.................................................. 30
2013.................................................. 60
2014 and subsequent................................... 100
------------------------------------------------------------------------
(2) through (6) [Reserved]. For guidance see Sec. 86.1811-04.
(7) In cases where vehicles are certified to evaporative emission
standards in Tables S09-1 and S09-2 of this section, the Administrator
may accept evaporative emissions data for low altitude testing in
accordance with California test conditions and test procedures (in lieu
of the evaporative emission test condition and test procedure
requirements of subpart B of this part).
(f) through (s) [Reserved]. For guidance see Sec. 86.1811-04.
(t) Evaporative emission in-use standards. (1) For LDVs and LLDTs
certified prior to the 2012 model year, the Tier 2 LDV/LLDT evaporative
emissions standards in Table S04-3 of Sec. 86.1811-04(e) shall apply
to in-use vehicles for only the first three model years after an
evaporative family is first certified to the LDV/LLDT evaporative
emission standards in Table S09-1 of paragraph (e) of this section, as
shown in Table S09-4. For example, evaporative families first certified
to the LDV/LLDT standards in Table S09-1 in the 2011 model year must
meet the Tier
[[Page 8564]]
2 LDV/LLDT evaporative emission standards (Table S04-3) in-use for
2011, 2012, and 2013 model year vehicles (applying Tier 2 standards in-
use is limited to the first three years after introduction of a
vehicle).
(2) For HLDTs and MDPVs certified prior to the 2013 model year, the
Tier 2 HLDT/MDPV evaporative emissions standards in Table S04-3 of
Sec. 86.1811-04(e) shall apply to in-use vehicles for only the first
three model years after an evaporative family is first certified to the
HLDT/MDPV evaporative emission standards in Table S09-1 of paragraph
(e) of this section, as shown in Table S09-5. For example, evaporative
families first certified to the HLDT/MDPV standards in Table S09-1 in
the 2012 model year must meet the Tier 2 HLDT/MDPV evaporative emission
standards (Table S04-3) in-use for 2012, 2013, and 2014 model year
vehicles (applying Tier 2 standards in-use is limited to the first
three years after introduction of a vehicle).
Table S09-4.--Schedule for In-Use LDV/LLDT Diurnal Plus Hot Soak
Evaporative Emission Standards
------------------------------------------------------------------------
Model Year of Introduction 2009 2010 2011
------------------------------------------------------------------------
Models Years That Tier 2 Standards Apply to In- 2009 2010 2011
use Vehicles...................................
2010 2011 2012
2011 2012 2013
------------------------------------------------------------------------
Table S09-5--Schedule For In-Use HLDT/MDPV Diurnal Plus Hot Soak
Evaporative Emission Standards
------------------------------------------------------------------------
Model Year of Introduction 2010 2010 2011 2012
------------------------------------------------------------------------
Models Years That Tier 2 Standards Apply to In- 2010 2011 2012
use Vehicles...................................
2011 2012 2013
2012 2013 2014
------------------------------------------------------------------------
? 20. A new Sec. 86.1811-10 is added to Subpart S to read as follows:
Sec. 86.1811-10 Emission standards for light-duty vehicles, light-
duty trucks and medium-duty passenger vehicles.
Section 86.1811-10 includes text that specifies requirements that
differ from Sec. 86.1811-04 and Sec. 86.1811-09. Where a paragraph in
Sec. 86.1811-04 or Sec. 86.1811-09 is identical and applicable to
Sec. 86.1811-10, this may be indicated by specifying the corresponding
paragraph and the statement ``[Reserved]. For guidance see Sec.
86.1811-04'' or ``[Reserved]. For guidance see Sec. 86.1811-09.''
Where a corresponding paragraph of Sec. 86.1811-04 or Sec. 86.1811-09
is not applicable, this is indicated by the statement ``[Reserved].''
(a) [Reserved]. For guidance see Sec. 86.1811-09.
(b) through (d) [Reserved]. For guidance see Sec. 86.1811-04.
(e) [Reserved]. For guidance see Sec. 86.1811-09.
(f) [Reserved]. For guidance see Sec. 86.1811-04.
(g) Cold temperature exhaust emission standards. (1) Cold
temperature CO standards. These cold temperature CO standards are
applicable only to gasoline fueled LDV/Ts and MDPVs. Cold temperature
CO exhaust emission standards apply over a useful life of 50,000 miles
or 5 years (whichever occurs first) as follows:
(i) For LDVs and LDT1s, the standard is 10.0 grams per mile CO.
(ii) For LDT2s, LDT3s and LDT4s, and MDPVs, the standard is 12.5
grams per mile CO.
(iii) These standards do not apply to interim non-Tier 2 MDPVs.
(2) Cold temperature NMHC standards. Full useful life fleet average
cold temperature NMHC standards are applicable only to gasoline fueled
LDV/LLDTs and HLDT/MDPVs, and apply equally to certification and in-use
except as otherwise specified in paragraph (u) of this section for in-
use standards for applicable phase-in models. Testing with other fuels
such as E85, or testing on diesel vehicles, is not required. Multi-
fuel, bi-fuel or dual-fuel vehicles must comply with requirements using
gasoline only. For LDV/LLDTs, the useful life is 120,000 miles or 10
years, whichever comes first. For HLDT/MDPVs, the useful life is
120,000 miles or 11 years, whichever comes first. There is not an
intermediate useful life standard for cold temperature NMHC standards.
(i) The standards are shown in the following table:
Table S10-1--Fleet Average Cold Temperature NMHC Full Useful Life
Exhaust Emission Standards
------------------------------------------------------------------------
Cold temperature
NMHC sales-
Vehicle weight category weighted fleet
average standard
(grams/mile)
------------------------------------------------------------------------
LDVs & LLDTs (< =6,000 lbs GVWR)....................... 0.3
HLDTs (>6,000-8,500 lbs GVWR) & MDPVs (>8,500-10,000 0.5
lbs GVWR)............................................
------------------------------------------------------------------------
(ii) The manufacturer must calculate its fleet average cold
temperature NMHC emission level(s) as described in Sec. 86.1864-10(m).
(iii) During a phase-in year, the manufacturer must comply with the
fleet average standards for the required phase-in percentage for that
year as specified in paragraph (g)(3) of this section, or for the
alternate phase-in percentage as permitted under paragraph (g)(4) of
this section.
(iv) For model years prior to 2010 (LDV/LLDTs) and 2012 (HLDT/
MDPVs), where the manufacturer desires to bank early NMHC credits as
permitted under Sec. 86.1864-10(o)(5), the manufacturer must achieve a
fleet average standard below the applicable standard. Manufacturers
must determine compliance with the cold temperature NMHC fleet average
standard according to Sec. 86.1864-10(o).
(3) Phase-in of the cold temperature NMHC standards. Except as
permitted in Sec. 86.1811-04(k)(5)(vi) and (vii) regarding small
volume manufacturers, manufacturers must comply with the phase-in
requirements in Tables S10-2 and S10-3. Separate phase-in schedules are
provided for LDV/LLDTs and for HLDT/MDPVs. These requirements specify
the minimum percentage of the manufacturer's LDV/LLDT and HLDT/MDPV 50-
State sales, by model year, that must meet the fleet average cold
temperature NMHC standard for their full useful lives. LDVs and LLDTs
must be grouped together to determine compliance with these phase-in
requirements, and HLDTs and MDPVs must also be grouped together to
determine compliance with these phase-in requirements. Tables S10-2 and
S10-3 follow:
[[Page 8565]]
Table S10-2--Phase-in Percentages for LDV/LLDT Cold Temperature NMHC
Requirements
------------------------------------------------------------------------
Percentage of
LDV/LLDTs that
Model year must meet
requirement
------------------------------------------------------------------------
2010.................................................... 25
2011.................................................... 50
2012.................................................... 75
2013 and subsequent..................................... 100
------------------------------------------------------------------------
Table S10-3--Phase-in Percentages for HLDT/MDPV Cold Temperature NMHC
Requirements
------------------------------------------------------------------------
Percentage of
HLDT/MDPVs
Model year that must meet
requirement
------------------------------------------------------------------------
2012.................................................... 25
2013.................................................... 50
2014.................................................... 75
2015 and subsequent..................................... 100
------------------------------------------------------------------------
(4) Alternate phase-in schedules for cold temperature NMHC
standards. (i) Manufacturers may apply for alternate phase-in schedules
that would still result in 100% phase-in by 2013 and 2015,
respectively, for LDV/LLDTs and HLDT/MDPVs. An alternate phase-in
schedule submitted by a manufacturer is subject to EPA approval. The
alternate phase-in will not be used to delay full implementation past
the last year of the primary phase-in schedule (2013 for LDV/LLDTs,
2015 for HLDT/MDPVs). An alternate phase-in schedule will be acceptable
if it satisfies the following conditions (where API = Anticipated
Phase-In percentage for the referenced model year):
LDV/LLDTs:
(6xAPI2008) + (5xAPI2009) +
(4xAPI2010) + (3xAPI2011) +
(2xAPI2012) + (1xAPI2013) [gteqt]
500%, and
(6xAPI2008) + (5xAPI2009) +
(4xAPI2010) [gteqt]
100%
HLDT/MDPVs:
(6xAPI2010) + (5xAPI2011) +
(4xAPI2012) + (3xAPI2013) +
(2xAPI2014) + (1xAPI2015) [gteqt]
500%, and
(6xAPI2010) + (5xAPI2011) +
(4xAPI2012) [gteqt]
100%,
or
(6xAPI2010) + (5xAPI2011) +
(4xAPI2012) + (3xAPI2013) +
(2xAPI2014) + (1xAPI2015) [gteqt]
600%
(ii)(A) For LDV/LLDTs, if the sum of products in paragraph
(g)(4)(i) of this section is greater than or equal to 500%, which is
the sum of products from the primary phase-in schedule (4x25% + 3x50% +
2x75% + 1x100% = 500%), then the alternate phase-in schedule is
acceptable, except as prohibited in paragraphs (g)(4)(i) and (iii) of
this section. In addition, manufacturers electing to use an alternate
phase-in schedule for compliance with the cold temperature NMHC exhaust
emission standards must ensure that the sum of products is at least
100% for model years 2010 and earlier for LDV/LLDTs. For example, a
phase-in schedule for LDV/LLDTs of 5/10/10/45/80/100 that begins in
2008 would calculate as (6x5%) + (5x10%) + (4x10%) = 120% and would be
acceptable for 2008-2010. The full phase-in would calculate as (6x5%) +
(5x10%) + (4x10%) + (3x45%) + (2x80%) + (1x100%) = 515% and would be
acceptable for 2008-2013.
(B) For HLDT/MDPVs, if the sum of products in paragraph (g)(4)(i)
of this section is greater than or equal to 500%, which is the sum of
products from the primary phase-in schedule (4x25% + 3x50% + 2x75% +
1x100% = 500%), then the alternate phase-in schedule is acceptable,
except as prohibited in paragraphs (g)(4)(i) and (iii) of this section.
In addition, manufacturers electing to use an alternate phase-in
schedule for compliance with the cold temperature NMHC exhaust emission
standards must ensure that the sum of products is at least 100% for
model years 2012 and earlier for HLDT/MDPVs. Alternately, if the sum of
products is greater than or equal to 600%, then the alternate phase-in
schedule is acceptable, except as prohibited in paragraphs (g)(4)(i)
and (iii) of this section. If the sum of products is greater than or
equal to 600%, then there are no requirements on the sum of products
for model years 2012 and earlier.
(iii) Under an alternate phase-in schedule, the projected phase-in
percentage is not binding for a given model year, provided the sums of
the actual phase-in percentages that occur meet the appropriate total
sums as required in the equations of paragraph (g)(4)(i) of this
section, and provided that 100% actual compliance is reached for the
appropriate model year, either 2013 for LDV/LLDTs or 2015 for HLDT/MDPVs.
(5) Manufacturers must determine compliance with required phase-in
schedules as follows:
(i) Manufacturers must submit information showing compliance with
all phase-in requirements of this section with their Part I
applications as required by Sec. 86.1844(d)(13).
(ii) A manufacturer electing to use any alternate phase-in schedule
permitted under this section must provide in its Application for
Certification for the first year in which it intends to use such a
schedule, and in each succeeding year during the phase-in, the intended
phase-in percentages for that model year and the remaining phase-in
years along with the intended final sum of those percentages as
described in paragraph (g)(4)(i) of this section. This information may
be included with the information required under Sec. 86.1844-
01(d)(13). In its year end annual reports, as required under Sec.
86.1844-01(e)(4), the manufacturer must include sufficient information
so that the Administrator can verify compliance with the alternate
phase-in schedule established under paragraph (g)(4)(i) of this section.
(6)(i) Sales percentages for the purpose of determining compliance
with the phase-in of the cold temperature NMHC requirements must be
based upon projected 50-State sales of LDV/LLDTs and HLDT/MDPVs of the
applicable model year by the manufacturer to the point of first sale.
Such sales percentages must be rounded to the nearest 0.1 percent.
(ii) Alternatively, the manufacturer may petition the Administrator
to allow actual volume produced for U.S. sales to be used in lieu of
projected U.S. sales for purposes of determining compliance with the
phase-in percentage requirements under this section. The manufacturer
must submit its petition within 30 days of the end of the model year.
For EPA to approve the use of actual volume produced for U.S. sales,
the manufacturer must establish to the satisfaction of the
Administrator, that actual production volume is functionally equivalent
to actual sales volume of LDV/LLDTs and HLDT/MDPVs sold in all 50 U.S.
States.
(h) through (s) [Reserved]. For guidance see Sec. 86.1811-04.
(t) [Reserved]. For guidance see Sec. 86.1811-09.
(u) Cold temperature NMHC exhaust emission in-use standards for
applicable phase-in models. An interim full useful life in-use
compliance standard is calculated by adding 0.1 g/mi to the FEL to
which each test group is newly certified, and applies to that test
group only for the model years shown in Tables S10-4 and S10-5.
Otherwise, the in-use standard is the certification standard from
paragraph (g)(2) of this section. The standards apply for purposes of
in-use testing only and does not apply to certification or Selective
Enforcement Auditing. Tables S10-4 and S10-5 follow:
[[Page 8566]]
Table S10-4.--In-Use Standards for Applicable Phase-In LDV/LLDTs
----------------------------------------------------------------------------------------------------------------
Model Year of Introduction 2008 2009 2010 2011 2012 2013
----------------------------------------------------------------------------------------------------------------
Models years that the interim in-use standard is available...... 2008 2009 2010 2011 2012 2013
2009 2010 2011 2012 2013 2014
2010 2011 2012 2013 2014
2011 2012 2013
----------------------------------------------------------------------------------------------------------------
Table S10-5.--In-Use Standards for Applicable Phase-In HLDT/MDPVs
----------------------------------------------------------------------------------------------------------------
Model Year of Introduction 2010 2011 2012 2013 2014 2015
----------------------------------------------------------------------------------------------------------------
Models years that the interim in-use standard is available...... 2010 2011 2012 2013 2014 2015
2011 2012 2013 2014 2015 2016
2012 2013 2014 2015 2016
2013 2014 2015
----------------------------------------------------------------------------------------------------------------
? 21. Section 86.1823-01 is amended by revising paragraph (a)(3)(i)(C) to
read as follows:
Sec. 86.1823-01 Durability demonstration procedures for exhaust emissions.
* * * * *
(a) * * *
(3) * * *
(i) * * *
(C) The DF calculated by these procedures will be used for
determining compliance with FTP exhaust emission standards, SFTP
exhaust emission standards, cold temperature NMHC emission standards,
and cold temperature CO emission standards. At the manufacturer's
option and using procedures approved by the Administrator, a separate
DF may be calculated exclusively using cold temperature CO test data to
determine compliance with cold temperature CO emission standards.
Similarly, at the manufacturer's option and using procedures approved
by the Administrator, a separate DF may be calculated exclusively using
cold temperature NMHC test data to determine compliance with cold
temperature NMHC emission standards. For determining compliance with
full useful life cold temperature NMHC emission standards, the 68-86
[deg]F 120,000 mile full useful life NMOG DF may be used. Also at the
manufacturer's option and using procedures approved by the
Administrator, a separate DF may be calculated exclusively using US06
and/or air conditioning (SC03) test data to determine compliance with
the SFTP emission standards.
* * * * *
? 22. Section 86.1827-01 is amended by revising paragraph (a)(5) to read
as follows:
Sec. 86.1827-01 Test group determination.
* * * * *
(a) * * *
(5) Subject to the same emission standards (or FEL in the case of
cold temperature NMHC standards), except that a manufacturer may
request to group vehicles into the same test group as vehicles subject
to more stringent standards, so long as all the vehicles within the
test group are certified to the most stringent standards applicable to
any vehicle within that test group. Light-duty trucks subject to the
same emission standards as light-duty vehicles, with the exception of
the light-duty truck idle CO standard and/or total HC standard, may be
included in the same test group.
* * * * *
? 23. A new Sec. 86.1828-10 is added to Subpart S to read as follows:
Sec. 86.1828-10 Emission data vehicle selection.
Section 86.1828-10 includes text that specifies requirements that
differ from Sec. 86.1828-01. Where a paragraph in Sec. 86.1828-01 is
identical and applicable to Sec. 86.1828-10, this may be indicated by
specifying the corresponding paragraph and the statement ``[Reserved].
For guidance see Sec. 86.1828-01.'' Where a corresponding paragraph of
Sec. 86.1828-01 is not applicable, this is indicated by the statement
``[Reserved].''
(a) through (f) [Reserved]. For guidance see Sec. 86.1828-01.
(g) Cold temperature NMHC testing. For cold temperature NMHC
exhaust emission compliance for each durability group, the manufacturer
must select the vehicle expected to emit the highest NMHC emissions at
20 [deg]F on candidate in-use vehicles from the test vehicles specified
in Sec. 86.1828-01(a). When the expected worst-case cold temperature
NMHC vehicle is also the expected worst-case cold temperature CO
vehicle as selected in paragraph (c) of this section, then cold testing
is required only for that vehicle; otherwise, testing is required for
both the worst-case cold temperature CO vehicle and the worst-case cold
temperature NMHC vehicle.
? 24. Section 86.1829-01 is amended by revising paragraph (b)(3) to read
as follows:
Sec. 86.1829-01 Durability and emission testing requirements; waivers.
* * * * *
(b) * * *
(3) Cold temperature CO and cold temperature NMHC Testing. The
manufacturer must test one EDV in each durability group for cold
temperature CO and cold temperature NMHC exhaust emission compliance in
accordance with the test procedures in subpart C of this part or with
alternative procedures approved in advance by the Administrator. The
selection of which EDV and test group within the durability group will
be tested for cold temperature CO and cold temperature NMHC compliance
will be determined under the provisions of Sec. 86.1828-10(c) and (g).
* * * * *
? 25. Section 86.1844-01 is amended by revising paragraph (d)(11) to read
as follows:
Sec. 86.1844-01 Information requirements: application for
certification and submittal of information upon request.
* * * * *
(d) * * *
(11) A list of all auxiliary emission control devices (AECD)
installed on any applicable vehicles, including a justification for
each AECD, the parameters they sense and control, a detailed
justification of each AECD which results in a reduction in
effectiveness of the emission control system, and rationale for why the
AECD is not a defeat device as defined under Sec. Sec. 86.1809-01 and
86.1809-10. For any AECD uniquely used at high altitudes, EPA may
request engineering emission
[[Page 8567]]
data to quantify any emission impact and validity of the AECD. For any
AECD uniquely used on multi-fuel vehicles when operated on fuels other
than gasoline, EPA may request engineering emission data to quantify
any emission impact and validity of the AECD.
* * * * *
? 26. A new Sec. 86.1848-10 is added to Subpart S to read as follows:
Sec. 86.1848-10 Certification.
Section 86.1848-10 includes text that specifies requirements that
differ from Sec. 86.1848-01. Where a paragraph in Sec. 86.1848-01 is
identical and applicable to Sec. 86.1848-10, this may be indicated by
specifying the corresponding paragraph and the statement ``[Reserved].
For guidance see Sec. 86.1848-01.'' Where a corresponding paragraph of
Sec. 86.1848-01 is not applicable, this is indicated by the statement
``[Reserved].''
(a) through (b) [Reserved]. For guidance see Sec. 86.1848-01.
(c) The following conditions apply to all certificates:
(1) The manufacturer must supply all required information according
to the provisions of Sec. Sec. 86.1843-01 and 86.1844-01.
(2) The manufacturer must comply with all certification and in-use
emission standards contained in subparts S and H of this part both
during and after model year production.
(3) The manufacturer must comply with all implementation schedules
sales percentages as required in Sec. 86.1810 or elsewhere in this
part. Failure to meet a required implementation schedule sales
percentage will be considered to be a failure to satisfy a condition
upon which the certificate was issued and any vehicles or trucks sold
in violation of the implementation schedule are not to be covered by
the certificate.
(4) For incomplete light-duty trucks and incomplete heavy-duty
vehicles, a certificate covers only those new motor vehicles that, when
completed by having the primary load-carrying device or container
attached, conform to the maximum curb weight and frontal area
limitations described in the application for certification as required
in Sec. 86.1844-01.
(5) The manufacturer must meet the in-use testing and reporting
requirements contained in Sec. Sec. 86.1845-01, 86.1846-01, and
86.1847-01, as applicable. Failure to meet the in-use testing or
reporting requirements shall be considered a failure to satisfy a
condition upon which the certificate was issued. A vehicle or truck is
considered to be covered by the certificate only if the manufacturer
fulfills this condition upon which the certificate was issued.
(6) Vehicles are covered by a certificate of conformity only if
they are in all material respects as described in the manufacturer's
application for certification (Part I and Part II).
(7) For Tier 2 and interim non-Tier 2 vehicles, all certificates of
conformity issued are conditional upon compliance with all provisions
of Sec. Sec. 86.1811-04, 86.1860-04, 86.1861-04 and 86.1862-04 both
during and after model year production. The manufacturer must bear the
burden of establishing to the satisfaction of the Administrator that
the terms and conditions upon which the certificate(s) was (were)
issued were satisfied. For recall and warranty purposes, vehicles not
covered by a certificate of conformity will continue to be held to the
standards stated or referenced in the certificate that otherwise would
have applied to the vehicles.
(i) Failure to meet the fleet average NOX requirements
of 0.07g/mi, 0.3 g/mi or 0.2 g/mi, as applicable, will be considered to
be a failure to satisfy the terms and conditions upon which the
certificate(s) was (were) issued and the vehicles sold in violation of
the fleet average NOX standard will not be covered by the
certificate(s).
(ii) Failure to comply fully with the prohibition against selling
credits that it has not generated or that are not available, as
specified in Sec. 86.1861-04, will be considered to be a failure to
satisfy the terms and conditions upon which the certificate(s) was
(were) issued and the vehicles sold in violation of this prohibition
will not be covered by the certificate(s).
(iii) Failure to comply fully with the phase-in requirements of
Sec. 86.1811-04, will be considered to be a failure to satisfy the
terms and conditions upon which the certificate(s) was (were) issued
and the vehicles sold which do not comply with Tier 2 or interim non-
Tier 2 requirements, up to the number needed to comply, will not be
covered by the certificate(s).
(8) For LDV/LLDTs and HLDT/MDPVs, all certificates of conformity
issued are conditional upon compliance with all provisions of
Sec. Sec. 86.1811-10 and 86.1864-10 both during and after model year
production. The manufacturer bears the burden of establishing to the
satisfaction of the Administrator that the terms and conditions upon
which the certificate(s) was (were) issued were satisfied. For recall
and warranty purposes, vehicles not covered by a certificate of
conformity will continue to be held to the standards stated or referenced
in the certificate that otherwise would have applied to the vehicles.
(i) Failure to meet the fleet average cold temperature NMHC
requirements will be considered a failure to satisfy the terms and
conditions upon which the certificate(s) was (were) issued and the
vehicles sold in violation of the fleet average NMHC standard will not
be covered by the certificate(s).
(ii) Failure to comply fully with the prohibition against selling
credits that are not generated or that are not available, as specified
in Sec. 86.1864-10, will be considered a failure to satisfy the terms
and conditions upon which the certificate(s) was (were) issued and the
vehicles sold in violation of this prohibition will not be covered by
the certificate(s).
(iii) Failure to comply fully with the phase-in requirements of
Sec. 86.1811-10 will be considered a failure to satisfy the terms and
conditions upon which the certificate(s) was (were) issued and the
vehicles sold that do not comply with cold temperature NMHC
requirements, up to the number needed to comply, will not be covered by
the certificate(s).
(d) through (i) [Reserved]. For guidance see Sec. 86.1848-01.
? 27. A new Sec. 86.1864-10 is added to Subpart S to read as follows:
Sec. 86.1864-10 How to comply with the fleet average cold temperature
NMHC standards.
(a) Applicability. Cold temperature NMHC exhaust emission standards
apply to the following vehicles, subject to the phase-in requirements
in Sec. 86.1811-10(g)(3) and (4):
(1) 2010 and later model year LDV/LLDTs.
(2) 2012 and later model year HLDT/MDPVs.
(3) Aftermarket conversion systems as defined in 40 CFR 85.502,
including conversion of MDPVs.
(4) Vehicles imported by ICIs as defined in 40 CFR 85.1502.
(b) Useful life requirements. Full useful life requirements for
cold temperature NMHC standards are defined in Sec. 86.1805-04(g).
There is not an intermediate useful life standard for cold temperature
NMHC standards.
(c) Altitude. Altitude requirements for cold temperature NMHC
standards are provided in Sec. 86.1810-09(f).
(d) Small volume manufacturer certification procedures.
Certification procedures for small volume manufacturers are provided in
Sec. 86.1838-01.
(e) Cold temperature NMHC standards. Fleet average cold temperature
NMHC standards are provided in Sec. 86.1811-10(g)(2).
[[Page 8568]]
(f) Phase-in. Phase-in of the cold temperature NMHC standards are
provided in Sec. 86.1811-10(g)(3) and (4).
(g) Phase-in flexibilities for small volume manufacturers. Phase-in
flexibilities for small volume manufacturer compliance with the cold
temperature NMHC standards are provided in Sec. 86.1811-04(k)(5).
(h) Hardship provisions for small volume manufacturers. Hardship
provisions for small volume manufacturers related to the cold
temperature NMHC standards are provided in Sec. 86.1811-04(q)(1).
(i) In-use standards for applicable phase-in models. In-use cold
temperature NMHC standards for applicable phase-in models are provided
in Sec. 86.1811-10(u).
(j) Durability procedures and method of determining deterioration
factors (DFs). The durability data vehicle selection procedures of
Sec. 86.1822-01 and the durability demonstration procedures of Sec.
86.1823-06 apply for cold temperature NMHC standards. For determining
compliance with full useful life cold temperature NMHC emission
standards, the 68-86 [deg]F, 120,000 mile full useful life NMOG DF may
be used.
(k) Vehicle test procedure. (1) The test procedure for
demonstrating compliance with cold temperature NMHC standards is
contained in subpart C of this part. With prior EPA approval,
alternative testing procedures may be used, as specified in Sec.
86.106-96(a), provided cold temperature NMHC emissions test results are
equivalent or superior.
(2) Testing of all LDVs, LDTs and MDPVs to determine compliance
with cold temperature NMHC exhaust emission standards set forth in this
section must be on a loaded vehicle weight (LVW) basis, as defined in
Sec. 86.1803-01.
(3) Testing for the purpose of providing certification data is
required only at low altitude conditions and only for vehicles that can
operate on gasoline, except as requested in Sec. Sec. 86.1810-09(f)
and 86.1844-01(d)(11). If hardware and software emission control
strategies used during low altitude condition testing are not used
similarly across all altitudes for in-use operation, the manufacturer
must include a statement in the application for certification, in
accordance with Sec. Sec. 86.1844-01(d)(11) and 86.1810-09(f), stating
what the different strategies are and why they are used. If hardware
and software emission control strategies used during testing with
gasoline are not used similarly with all fuels that can be used in
multi-fuel vehicles, the manufacturer will include a statement in the
application for certification, in accordance with Sec. Sec. 86.1844-
01(d)(11) and 86.1810-09(f), stating what the different strategies are
and why they are used. For example, unless a manufacturer states
otherwise, air pumps used to control emissions on dedicated gasoline
vehicles or multi-fuel vehicles during low altitude conditions must
also be used to control emissions at high altitude conditions, and
software used to control emissions or closed loop operation must also
operate similarly at low and high altitude conditions and similarly
when multi-fueled vehicles are operated on gasoline and alternate
fuels. These examples are for illustrative purposes only; similar
strategies would apply to other currently used emission control
technologies and/or emerging or future technologies.
(l) Emission data vehicle (EDV) selection. Provisions for selecting
the appropriate EDV for the cold temperature NMHC standards are
provided in Sec. Sec. 86.1828-10(g) and 86.1829-01(b)(3).
(m) Calculating the fleet average cold temperature NMHC standard.
Manufacturers must compute separate sales-weighted fleet average cold
temperature NMHC emissions at the end of the model year for LDV/LLDTs
and HLDT/MDPVs, using actual sales, and certifying test groups to FELs,
as defined in Sec. 86.1803-01. The FEL becomes the standard for each
test group, and every test group can have a different FEL. The
certification resolution for the FEL will be 0.1 grams/mile. LDVs and
LLDTs must be grouped together when calculating the fleet average, and
HLDTs and MDPVs must also be grouped together to determine the fleet
average. Manufacturers must compute the sales-weighted cold temperature
NMHC fleet averages using the following equation, rounded to the
nearest 0.1 grams/mile:
Fleet average cold temperature NMHC exhaust emissions (grams/mile) =
[Sigma](N x FEL) / Total number of vehicles sold of the applicable
weight category (i.e., either LDV + LLDTs, or HLDT + MDPVs)
Where:
N = The number of LDVs and LLDTs, or HLDTs and MDPVs, sold within
the applicable FEL, based on vehicles counted to the point of first sale.
FEL = Family Emission Limit (grams/mile).
(n) Certification compliance and enforcement requirements for cold
temperature NMHC standards. (1) Compliance and enforcement requirements
are provided in Sec. 86.1864-10 and Sec. 86.1848-10(c)(8).
(2) The certificate issued for each test group requires all
vehicles within that test group to meet the emission standard or FEL to
which the vehicles were certified.
(3) Each manufacturer must comply with the applicable cold
temperature NMHC fleet average standard on a sales-weighted average
basis, at the end of each model year, using the procedure described in
paragraph (m) of this section.
(4) During a phase-in year, the manufacturer must comply with the
applicable cold temperature NMHC fleet average standard for the
required phase-in percentage for that year as specified in Sec.
86.1811-10(g)(3) or (4).
(5) Manufacturers must compute separate cold temperature NMHC fleet
averages for LDV/LLDTs and HLDT/MDPVs. The sales-weighted cold
temperature NMHC fleet averages must be compared with the applicable
fleet average standard.
(6) Each manufacturer must comply on an annual basis with the fleet
average standards as follows:
(i) Manufacturers must report in their annual reports to the Agency
that they met the relevant corporate average standard by showing that
their sales-weighted average cold temperature NMHC emissions of LDV/
LLDTs and HLDT/MDPVs, as applicable, are at or below the applicable
fleet average standard;
(ii) If the sales-weighted average is above the applicable fleet
average standard, manufacturers must obtain and apply sufficient NMHC
credits as permitted under paragraph (o)(8) of this section. A
manufacturer must show via the use of credits that they have offset any
exceedence of the corporate average standard. Manufacturers must also
include their credit balances or deficits.
(iii) If a manufacturer fails to meet the corporate average cold
temperature NMHC standard for two consecutive years, the vehicles
causing the corporate average exceedence will be considered not covered
by the certificate of conformity (see paragraph (o)(8) of this
section). A manufacturer will be subject to penalties on an individual-
vehicle basis for sale of vehicles not covered by a certificate.
(iv) EPA will review each manufacturer's sales to designate the
vehicles that caused the exceedence of the corporate average standard.
EPA will designate as nonconforming those vehicles in test groups with
the highest certification emission values first, continuing until
reaching a number of vehicles equal to the calculated number of
noncomplying vehicles as determined above. In a group where only a
portion of vehicles would be deemed nonconforming, EPA will determine the
[[Page 8569]]
actual nonconforming vehicles by counting backwards from the last
vehicle produced in that test group. Manufacturers will be liable for
penalties for each vehicle sold that is not covered by a certificate.
(o) Requirements for the cold temperature NMHC averaging, banking
and trading (ABT) program. (1) Manufacturers must average the cold
temperature NMHC emissions of their vehicles and comply with the cold
temperature NMHC fleet average corporate standard. Manufacturers may
generate credits during and after the phase-in period. Manufacturers
may generate credits prior to the phase-in periods as described in
paragraph (o)(5) of this section. A manufacturer whose cold temperature
NMHC fleet average emissions exceed the applicable standard must
complete the calculation in paragraph (o)(4) of this section to
determine the size of its NMHC credit deficit. A manufacturer whose
cold temperature NMHC fleet average emissions are less than the
applicable standard must complete the calculation in paragraph (o)(4)
of this section to generate NMHC credits.
(2) There are no property rights associated with NMHC credits
generated under this subpart. Credits are a limited authorization to
emit the designated amount of emissions. Nothing in this part or any
other provision of law should be construed to limit EPA's authority to
terminate or limit this authorization through a rulemaking.
(3) Each manufacturer must comply with the reporting and
recordkeeping requirements of paragraph (p) of this section for NMHC
credits, including early credits. The averaging, banking and trading
program is enforceable through the certificate of conformity that
allows the manufacturer to introduce any regulated vehicles into commerce.
(4) Credits are earned on the last day of the model year.
Manufacturers must calculate, for a given model year, the number of
credits or debits it has generated according to the following equation,
rounded to the nearest 0.1 grams/mile:
NMHC Credits or Debits = (Cold Temperature NMHC Standard--
Manufacturer's Sales-Weighted Fleet Average Cold Temperature NMHC
Emissions) x (Total Number of Vehicles Sold)
Where:
Cold Temperature NMHC Standard = 0.3 grams/mile for LDV/LLDTs or 0.5
grams/mile for HLDT/MDPV, per Sec. 86.1811-10(g)(2).
Manufacturer's Sales-Weighted Fleet Average Cold Temperature NMHC
Emissions = average calculated according to paragraph (m) of this section.
Total Number of Vehicles Sold = Total 50-State sales based on the
point of first sale.
(5) The following provisions apply for early banking:
(i) Manufacturers may certify LDV/LLDTs to the cold temperature
NMHC exhaust standards in Sec. 86.1811-10(g)(2) for model years 2008-
2009 to bank credits for use in the 2010 and later model years.
Manufacturers may certify HLDT/MDPVs to the cold temperature NMHC
exhaust standards in Sec. 86.1811-10(g)(2) for model years 2010-2011
to bank credits for use in the 2012 and later model years.
(ii) This process is referred to as ``early banking'' and the
resultant credits are referred to as ``early credits.'' To bank early
credits, a manufacturer must comply with all exhaust emission standards
and requirements applicable to LDV/LLDTs and/or HLDT/MDPVs. To generate
early credits, a manufacturer must separately compute the sales-
weighted cold temperature NMHC average of the LDV/LLDTs and HLDT/MDPVs
it certifies to the exhaust requirements and separately compute credits
using the calculations in paragraph (o)(4) of this section. Early HLDT/
MDPV credits may not be applied to LDV/LLDTs before the 2010 model
year. Early LDV/LLDT credits may not be applied to HLDT/ MDPV before
the 2012 model year.
(6) NMHC credits are not subject to any discount or expiration date
except as required under the deficit carryforward provisions of
paragraph (o)(8) of this section. There is no discounting of unused
credits. NMHC credits have unlimited lives, subject to the limitations
of paragraph (o)(2) of this section.
(7) Credits may be used as follows:
(i) Credits generated and calculated according to the method in
paragraph (o)(4) of this section may be used only to offset deficits
accrued with respect to the standard in Sec. 86.1811-10(g)(2). Credits
may be banked and used in a future model year in which a manufacturer's
average cold temperature NMHC level exceeds the applicable standard.
Credits may be exchanged between the LDT/LLDT and HLDT/MDPV fleets of a
given manufacturer. Credits may also be traded to another manufacturer
according to the provisions in paragraph (o)(9) of this section. Before
trading or carrying over credits to the next model year, a manufacturer
must apply available credits to offset any credit deficit, where the
deadline to offset that credit deficit has not yet passed.
(ii) The use of credits shall not be permitted to address Selective
Enforcement Auditing or in-use testing failures. The enforcement of the
averaging standard occurs through the vehicle's certificate of
conformity. A manufacturer's certificate of conformity is conditioned
upon compliance with the averaging provisions. The certificate will be
void ab initio if a manufacturer fails to meet the corporate average
standard and does not obtain appropriate credits to cover its
shortfalls in that model year or in the subsequent model year (see
deficit carryforward provision in paragraph (o)(8) of this section).
Manufacturers must track their certification levels and sales unless
they produce only vehicles certified to cold temperature NMHC levels
below the standard and do not plan to bank credits.
(8) The following provisions apply if debits are accrued:
(i) If a manufacturer calculates that it has negative credits (also
called ``debits'' or a ``credit deficit'') for a given model year, it
may carry that deficit forward into the next model year. Such a carry-
forward may only occur after the manufacturer exhausts any supply of
banked credits. At the end of that next model year, the deficit must be
covered with an appropriate number of credits that the manufacturer
generates or purchases. Any remaining deficit is subject to an
enforcement action, as described in this paragraph (o)(8).
Manufacturers are not permitted to have a credit deficit for two
consecutive years.
(ii) If debits are not offset within the specified time period, the
number of vehicles not meeting the fleet average cold temperature NMHC
standards (and therefore not covered by the certificate) must be
calculated by dividing the total amount of debits for the model year by
the fleet average cold temperature NMHC standard applicable for the
model year in which the debits were first incurred.
(iii) EPA will determine the number of vehicles for which the
condition on the certificate was not satisfied by designating vehicles
in those test groups with the highest certification cold temperature
NMHC emission values first and continuing until reaching a number of
vehicles equal to the calculated number of noncomplying vehicles as
determined above. If this calculation determines that only a portion of
vehicles in a test group contribute to the debit situation, then EPA
will designate actual vehicles in that test group as not covered by the
certificate, starting with the last vehicle produced and counting backwards.
[[Page 8570]]
(iv)(A) If a manufacturer ceases production of LDV/LLDTs and HLDT/
MDPVs, the manufacturer continues to be responsible for offsetting any
debits outstanding within the required time period. Any failure to
offset the debits will be considered a violation of paragraph (o)(8)(i)
of this section and may subject the manufacturer to an enforcement
action for sale of vehicles not covered by a certificate, pursuant to
paragraphs (o)(8)(ii) and (iii) of this section.
(B) If a manufacturer is purchased by, merges with, or otherwise
combines with another manufacturer, the controlling entity is
responsible for offsetting any debits outstanding within the required
time period. Any failure to offset the debits will be considered a
violation of paragraph (o)(8)(i) of this section and may subject the
manufacturer to an enforcement action for sale of vehicles not covered
by a certificate, pursuant to paragraphs (o)(8)(ii) and (iii) of this
section.
(v) For purposes of calculating the statute of limitations, a
violation of the requirements of paragraph (o)(8)(i) of this section, a
failure to satisfy the conditions upon which a certificate(s) was
issued and hence a sale of vehicles not covered by the certificate, all
occur upon the expiration of the deadline for offsetting debits
specified in paragraph (o)(8)(i) of this section.
(9) The following provisions apply to NMHC credit trading:
(i) EPA may reject NMHC credit trades if the involved manufacturers
fail to submit the credit trade notification in the annual report. A
manufacturer may not sell credits that are not available for sale
pursuant to the provisions in paragraphs (o)(7)(i) of this section.
(ii) In the event of a negative credit balance resulting from a
transaction that a manufacturer could not cover by the reporting
deadline for the model year in which the trade occurred, both the buyer
and seller are liable, except in cases involving fraud. EPA may void ab
initio the certificates of conformity of all engine families
participating in such a trade.
(iii) A manufacturer may only trade credits that it has generated
pursuant to paragraph (o)(4) of this section or acquired from another
party.
(p) Maintenance of records and submittal of information relevant to
compliance with fleet average cold temperature NMHC standards. (1)
Maintenance of records. (i) Manufacturers producing any light-duty
vehicles, light-duty trucks, or medium-duty passenger vehicles subject
to the provisions in this subpart must establish, maintain, and retain
all the following information in adequately organized records for each
model year:
(A) Model year.
(B) Applicable fleet average cold temperature NMHC standards.
(C) Fleet average cold temperature NMHC value.
(D) All values used in calculating the fleet average cold
temperature NMHC value.
(ii) Manufacturers producing any light-duty vehicles, light-duty
trucks, or medium-duty passenger vehicles subject to the provisions in
this subpart must establish, maintain, and retain all the following
information in adequately organized records for each LDV/T or MDPV
subject to this subpart:
(A) Model year.
(B) Applicable fleet average cold temperature NMHC standard.
(C) EPA test group.
(D) Assembly plant.
(E) Vehicle identification number.
(F) Cold temperature NMHC FEL to which the LDV, LDT, or MDPV is
certified.
(G) Information on the point of first sale, including the
purchaser, city, and state.
(iii) Manufacturers must retain all required records for a period
of eight years from the due date for the annual report. Records may be
stored in any format and on any media, as long as manufacturers can
promptly send EPA organized, written records in English if we ask for
them. Manufacturers must keep records readily available as EPA may
review them at any time.
(iv) The Administrator may require the manufacturer to retain
additional records or submit information not specifically required by
this section.
(v) Pursuant to a request made by the Administrator, the
manufacturer must submit to the Administrator the information that the
manufacturer is required to retain.
(vi) EPA may void ab initio a certificate of conformity for
vehicles certified to emission standards as set forth or otherwise
referenced in this subpart for which the manufacturer fails to retain
the records required in this section or to provide such information to
the Administrator upon request.
(2) Reporting. (i) Each covered manufacturer must submit an annual
report. The annual report must contain for each applicable cold
temperature NMHC standard, the calculated fleet average cold
temperature NMHC value, all values required to calculate the cold
temperature NMHC emissions value, the number of credits generated or
debits incurred, all the values required to calculate the credits or
debits, the resulting balance of credits or debits, and sufficient
information to show compliance with all phase-in or alternate phase-in
requirements.
(ii) For each applicable fleet average cold temperature NMHC
standard, the annual report must also include documentation on all
credit transactions the manufacturer has engaged in since those
included in the last report. Information for each transaction must
include all of the following:
(A) Name of credit provider.
(B) Name of credit recipient.
(C) Date the trade occurred.
(D) Quantity of credits traded.
(E) Model year in which the credits were earned.
(iii) Unless a manufacturer reports the data required by this
section in the annual production report required under Sec. 86.1844-
01(e), a manufacturer must submit an annual report for each model year
after production ends for all affected vehicles produced by the
manufacturer subject to the provisions of this subpart and no later
than May 1 of the calendar year following the given model year. Annual
reports must be submitted to: Director, Compliance and Innovative
Strategies Division, U.S. Environmental Protection Agency, 2000
Traverwood, Ann Arbor, Michigan 48105.
(iv) Failure by a manufacturer to submit the annual report in the
specified time period for all vehicles subject to the provisions in
this section is a violation of section 203(a)(1) of the Clean Air Act
(42 U.S.C. 7522 (a)(1)) for each applicable vehicle produced by that
manufacturer.
(v) If EPA or the manufacturer determines that a reporting error
occurred on an annual report previously submitted to EPA, the
manufacturer's credit or debit calculations will be recalculated. EPA
may void erroneous credits, unless traded, and will adjust erroneous
debits. In the case of traded erroneous credits, EPA must adjust the
selling manufacturer's credit balance to reflect the sale of such
credits and any resulting credit deficit.
(3) Notice of opportunity for hearing. Any revoking of the
certificate under paragraph (p)(1)(vi) of this section will be made
only after EPA has offered the affected manufacturer an opportunity for
a hearing conducted in accordance with Sec. 86.614-84 for light-duty
vehicles or Sec. 86.1014-84 for light-duty trucks and, if a
manufacturer requests such a hearing, will be made only after an
initial decision by the Presiding Officer.
[FR Doc. E7-2667 Filed 2-23-07; 8:45 am]
BILLING CODE 6560-50-P
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