[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35310-35381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16666]
[[Page 35309]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 80
Regulation of Fuels and Fuel Additives: Certification Standards for
Deposit Control Gasoline Additives; Final Rule
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules
and Regulations
[[Page 35310]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[AMS-FRL-5528-5]
RIN 2060-AG06
Regulation of Fuels and Fuel Additives: Certification Standards
for Deposit Control Gasoline Additives
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This action establishes a certification program for detergent
additives used to control the formation of port fuel injector deposits
(PFID) and intake valve deposits (IVD) in gasoline engines. In
accordance with Clean Air Act section 211(l), an interim detergent
program has been in effect since January 1, 1995, requiring the use of
detergents in virtually all gasoline used in the U.S. This final rule
contains standardized test procedures and performance standards to
ensure that such detergent gasoline will provide an effective level of
protection against PFID and IVD. The regulations include a variety of
certification options and compliance alternatives, affording cost-
effective flexibility to regulated parties.
The effective control of deposits in gasoline engine and fuel
supply systems has been shown to reduce the emission of nitrogen
oxides, hydrocarbons, and carbon monoxide in engine exhaust, while
enhancing fuel economy. Accordingly, the intent of the detergent
certification program is to help achieve the primary public health and
environmental protection goals of the Clean Air Act.
DATES: Effective Date: This rule is effective September 3, 1996.
The information collection requirements in 40 CFR 80.157(f)(5),
80.160(b)(2), 80.164(b)(3), 80.170(f)(5), and 80.173(b)(2) have not
been approved by the Office of Management and Budget (OMB) and will not
be effective until OMB has approved them, and EPA publishes a document
announcing their approval.
The incorporation by reference of certain publications listed in
the regulations are approved by the Director of the Federal Register as
of September 3, 1996.
Compliance Dates: Compliance with the requirements of the detergent
certification program is mandatory for detergent manufacturers,
detergent blenders, and gasoline distributors on July 1, 1997, and on
August 1, 1997 for gasoline retailers and wholesale purchaser-
consumers, and any other party selling or transferring gasoline to the
ultimate consumer.
ADDRESSES: Materials relevant to this final rule are contained in
Public Docket No. A-91-77 at the following address: Air Docket Section
(LE-131), room M-1500, 401 M Street SW., Washington, DC 20460; phone
(202) 260-7548; fax (202) 260-4000. The docket is open for public
inspection from 8:00 a.m. until 5:30 p.m., except on government
holidays. As provided in 40 CFR Part 2, a reasonable fee may be charged
for copying docket materials. Electronic copies of major documents
associated with this rulemaking are available from the EPA internet
site and via dial-up modem on the Office of Air Quality Planning and
Standards (OAQPS) Technology Transfer Network Bulletin Board System
(TTNBBS). Details on how to access these sources are included in
Section X of this preamble.
FOR FURTHER INFORMATION CONTACT: For information related to
qualification of detergent additives for use in complying with gasoline
detergency requirements contact: Jeffrey A. Herzog, U.S. EPA (FED),
Fuels and Energy Division, 2565 Plymouth Road, Ann Arbor, MI 48105;
Telephone: (313) 668-4227, Fax: (313) 741-7869. For information related
to the registration of fuels and fuel additives under 40 CFR Part 79
contact: James W. Caldwell, U.S. EPA (6406J), Fuels and Energy
Division, 401 M Street SW., Washington, DC 20460; Telephone: (202) 233-
9303, Fax: (202) 233-9556. For information related to enforcement
contact: Judith Lubow, U.S. EPA, Office of Enforcement and Compliance
Assurance, Western Field Office, 12345 West Alameda Parkway Suite 214,
Lakewood, CO 80228; Telephone: (303) 969-6483, FAX: (303) 969-6490.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially regulated by this action are those involved
with the production, distribution, and sale of gasoline and gasoline
detergent additives. Regulated categories and entities include:
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Category Examples of regulated entities
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Industry.................... Detergent manufacturers, Detergent
transporters, Gasoline refiners and
importers, Gasoline terminals, Detergent
blenders, Gasoline truckers, and Gasoline
retailers and wholesale purchaser-
consumers.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists types of entities that EPA is now aware could
potentially be regulated by this action. Other types of entities not
listed in the table could also be regulated. To determine whether your
organization is regulated by this action, you should carefully examine
the applicability requirements in Sec. 80.161(a), the detergent
certification requirements in Sec. 80.161(b), the program controls and
prohibitions in Sec. 80.168, and other related program requirements in
subpart G, title 40, of the Code of Federal Regulations (CFR). If you
have any questions regarding the applicability of this action to a
particular entity, consult the persons listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
Table of Contents
I. Background
A. Rulemaking History
B. Statutory Provisions and Legal Authority
C. Overview of this Action
D. Applicability
E. Program Start-Up and Compliance Dates
II. Combustion Chamber Deposit Control
A. CCD Impacts on Vehicle Emissions
B. CCD Energy Impacts
C. CCD Interference
D. Unwashed Gum Levels and CCD
E. Other Potential Adverse Side Effects of Detergent Overuse
III. Basic Information Requirements
A. Detergent Additive Information Requirements
1. Compositional Data
2. Minimum Effective Concentration
3. Certification Letter
B. Information Requirements for Fuel Manufacturers
IV. Certification Options
A. Background
B. Single-Tier Certification System
C. Geographic Certification Options
1. National Certification
2. PADD Certification
3. U.S. Territories
4. Certification Sub-Options
a. Nonoxygenated Gasoline Certification Option
b. Oxygenate-Specific Certification Option
c. Premium Grade Certification Option
d. Reformulated Gasoline Certification Option
5. Recertification Requirements
D. Fuel-specific Certification Option
1. General Description
2. Variants
[[Page 35311]]
3. Monitoring and Recertification Requirements
V. CARB Certifications
A. Background
B. Applicability of CARB Equivalent Certification
VI. Certification Test Fuels
A. National and PADD Certification Test Fuels
1. Proposed Test Fuel Requirements
2. Final Test Fuel Requirements
a. Test Fuel Source and Screening Requirements
b. Test Fuel Severity Factors
c. Number and Severity of Test Fuels
d. Other Issues
B. Fuel-Specific Certification Test Fuels
C. Summary of Test Fuel Requirements
D. Test Fuels for Leaded Gasoline Certification
E. Measurement of Gasoline Fuel Parameters
VII. Certification Tests and Performance Requirements.
A. Certification Test Procedures
B. Deposit Control Test Standards
1. PFID-Control Test Standard
2. IVD-Control Test Standard
C. Alternate Performance Requirements for Leaded Gasoline
D. Confirmatory Testing By EPA
VIII. Enforcement Provisions
A. Overview
1. Certification Conformity
2. Compliance with Volumetric Additive Reconciliation (VAR)
Requirements
3. Equipment Calibration
4. Product Transfer Documents (PTDs)
5. Liability and Defenses
6. Exemptions
B. Enforcement Aspects of the Certification Program, Including
Clarifications of, and Changes to, the Interim Program
1. VAR Requirements
a. Automated Detergent Blender Compliance Periods
b. VAR Formula Records per Detergent Storage System
c. Brands and Grades of Gasoline on VAR Records
d. Recording of Detergent LAC and Actual Concentration
e. VAR Recording of Use-Restricted LACs
f. Diluted Detergent
g. VAR Recording of Gasoline Which is Overadditized for the
Anticipated Addition of Ethanol or Other PRC
h. VAR Recording of Transfers of Unadditized Gasoline
i. Supporting Documentation of VAR Volumes for Hand-Blending
Facilities
j. Electronic VAR Formula and Supporting Records
k. Detergent Tank Transitioning
l. Automated Additization Equipment Calibration
m. Detergent Blender Record Retention
2. Affirmative Defense and Liability Issues
a. Detergent Manufacturer Affirmative Defense Modification
b. Extension of Liability for VAR Violations
c. Defense Against Liability Where More Than One Party May Be
Liable for VAR Violations
d. Defense to Liability for Gasoline Nonconformity Violations
Based Solely on the Addition of Misadditized Ethanol or Other PRC to
Gasoline
e. Liability for the Sale of Nonconforming Gasoline or PRC when
the Gasoline or PRC Also Violates VAR Requirements
f. Detergent Blender Affirmative Defense Clarification, and
Clarification of Presumptive Liability Arising from Detergent
Blending
g. Liability Clarification
3. Inclusion of Importers of Additized Gasoline Within the
Definition of Detergent Blender
4. Certification Use Restrictions
5. PTD Changes
a. Elimination of PTD Retention Requirement for Additized
Gasoline for Wholesale Purchaser-Consumers (WPCs)
b. Elimination of PTD Requirements for Transfer of Small Loads
of Additized Gasoline to Ultimate Consumers
c. Address of the Transferee/Transferor
d. PTD Identification of Oxygenates and PRC Added to Gasoline
e. Detergent Package Use Restriction Designations
f. Fuel-Specific Gasoline Designations
g. PADD Designation on PTDs for Additized Gasoline or PRC
h. Identification of Oxygenate and PRC Use Restrictions on PTDs
for Additized Gasoline
i. Base Gasoline Identification
j. Use of Product Codes on PTDs
k. PTD Requirements for Gasoline Overadditized for the Later
Addition of Ethanol or Other PRC
6. Extension of the Agency's Right of Entry into Facilities of
Detergent Manufacturers, Distributors, and Carriers
7. Exemptions
a. Research, Development, and Testing Exemption
b. Racing and Aviation Fuel Exemptions
c. California Gasoline Exemptions
C. Proposed Changes not Incorporated in the Certification Rule
IX. Administrative Requirements
A. Administrative Designation and Regulatory Analysis
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
E. Submission to Congress and the General Accounting Office
X. Electronic Copies of Rulemaking Documents
A. Technology Transfer Network Bulletin Board System (TTNBBS)
B. Internet
I. Background
A. Rulemaking History
Section 211(l) of the Clean Air Act (CAA) specifies that, beginning
January 1, 1995, all gasoline sold or transferred to the consumer must
contain additives to prevent the accumulation of deposits in engines or
fuel supply systems. The CAA charged EPA with the task of establishing
specifications for such deposit control (detergent) additives.1 As
described below, today's final rule is the fourth in a series of
rulemaking actions which EPA has taken to develop a gasoline detergent
program that is both effective and reasonable, and to ensure ample
opportunity for public participation in the regulation development
process.
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\1\ EPA uses the term ``detergent'' to refer broadly to the
additives required to meet the deposit control requirements
established in this program. It is not meant to specify a design
standard or to limit the kind of engine or fuel supply system
deposits that are, or would properly be, the subject of regulation
under sections 211(l) or 211(c).
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On December 6, 1993, EPA published a Notice of Proposed Rulemaking
(NPRM, 58 FR 64213) which proposed that all gasoline, with limited
exceptions, must contain additives to control port fuel injector
deposits (PFID) and intake valve deposits (IVD). When fully
implemented, the proposed program would establish a detergent additive
certification program, including vehicle-based test procedures,
specified test fuels, deposit control performance standards, and
related enforcement provisions. However, recognizing that the regulated
industry would need adequate lead time to complete such certification
requirements, simpler interim requirements were proposed for use at the
start of the program. While gasoline would be required to contain
properly registered detergent additives beginning January 1, 1995, the
procedures and criteria established to qualify a detergent additive for
use in the interim program would be less rigorous than the standardized
performance requirements envisioned for the full detergent
certification program.
Rules governing the two phases of the program were not finalized at
the same time. The rules for the Interim Detergent Program were
published on October 14, 1994 (59 FR 54678), while today's rule
establishes the final detergent certification program. EPA took these
actions in two separate rulemaking steps for two main reasons. First,
the effective date for the CAA's mandate to use deposit control
additives was January 1, 1995. This required rapid promulgation of the
interim program rule after close of the NPRM comment period, to give
the regulated parties as much lead time as possible. However, to ensure
consistency with industry practices, EPA wished to incorporate
standardized test procedures in the detergent certification rule. At
the time the interim program was promulgated, the American Society for
Testing and Materials (ASTM) had just completed its IVD control test
procedure (ASTM D 5500), but anticipated several more months' delay
before completing development of its PFID control test
[[Page 35312]]
procedure (later published as ASTM D-5598). EPA judged that a delay in
finalization of the detergent certification program would be
appropriate to permit adoption of both ASTM procedures.
The second reason for delaying promulgation of the certification
program was to provide additional opportunity for public discussion and
evaluation of potential regulatory requirements for control of
combustion chamber deposits (CCD). Following publication of the NPRM, a
public hearing was held (in Ann Arbor, Michigan on January 11, 1994)
and written comments were accepted until March 11, 1994. Much of this
public commentary pertained to the CCD issue. The comments were split
between those who believed CCD controls were unneeded and infeasible
and those who maintained that CCD problems were already significant and
could be expected to grow worse with increased use of PFID and IVD
detergents, and that CCD controls were both needed and feasible.
To further the resolution of this important issue, EPA published a
Notice of Reopening of the Comment Period (59 FR 66860, December 28,
1994). The Reopening Notice requested additional information regarding
the potential impacts of CCD on emissions, fuel economy, and
driveability; the possible relationship(s) between IVD and PFID
detergent additive levels, unwashed gum levels, and CCD formation; and
possible CCD control approaches. The notice also sought additional
public input on other key concerns raised during the initial comment
period, including certification test fuel issues and various
implementation and enforcement provisions proposed for the
certification program.
EPA's summary and analysis of public comments on issues relevant to
the interim provisions of the detergent program were published in a
section of the preamble to the interim program final rule. Public
comments on general provisions of the detergent certification program,
including those received following the NPRM as well as those sent to
EPA in response to the Reopening Notice, are extensively reviewed and
analyzed in a separate document accompanying this rule.2 A
synopsis of EPA's evaluation of the CCD issue is provided below in
Section II, and comments on other key topics are briefly described in
the relevant sections of this notice. However, the reader is directed
to the separate Summary and Analysis of Comments for detailed
presentation and evaluation of these issues.
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\2\ See ``Summary and Analysis of Comments on General Provisions
of the Detergent Certification Program'', Docket item V-B-02.
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Public comments concerning the detergent program's enforcement
issues have been handled in a somewhat different manner. Following
promulgation of the interim detergent program, the regulated industry
submitted a number of questions about the practical implementation of
some of the enforcement provisions of the rule. In response, EPA
provided guidance on various enforcement provisions, in a series of
four Detergent Rule Question and Answer Documents (``Q&A
Documents'').3 Today's rule incorporates a variety of regulatory
changes that are being made to codify the guidance. Section VIII of
this preamble contains a synopsis of the key issues related to these
regulatory changes, along with EPA's analysis of other enforcement-
related comments not discussed in previously published documents.
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\3\ Docket numbers IV-C-08, IV-C-09, IV-C-10, and IV-C-11.
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B. Statutory Provisions and Legal Authority
Recognizing that deposits in gasoline engines and fuel supply
systems can increase harmful exhaust emissions and adversely affect
vehicle fuel economy and driveability, Congress specified in section
211(l) of the Clean Air Act that: ``Effective beginning January 1,
1995, no person may sell or dispense to an ultimate consumer in the
United States, and no refiner or marketer may directly or indirectly
sell or dispense to persons who sell or dispense to ultimate consumers
in the United States, any gasoline which does not contain additives to
prevent the accumulation of deposits in engines or fuel supply systems
* * *'' Section 211(l) further provides that ``the Administrator shall
promulgate a rule establishing specifications for such additives.''
In section 211(l), Congress delegated to EPA rulemaking authority
to set specifications for detergent additives to prevent the
accumulation of deposits in engines or fuel supply systems. To
implement this grant of authority, EPA has reasonably interpreted the
several ambiguous elements of this provision. EPA believes that its
interpretations will promote the intent of Congress in adopting this
provision. First, the statute states that the additives must ``prevent
the accumulation of deposits.'' This term is ambiguous; it could be
interpreted to mean that the specifications must ensure that an
additive will not allow any deposits whatsoever to form, or that an
additive must be able to prevent all deposits and eliminate existing
deposits, or that an additive could be acceptable if it would provide a
reasonable level of protection against accumulation of new deposits but
would not make a great impact on any existing deposits. In addition,
section 211(l) refers to ``deposits in engines or fuel supply
systems.'' Deposits can form in almost any part of an engine or its
fuel supply system, e.g. the intake valves, the port fuel injectors,
the combustion chamber, the carburetor, the exhaust valves, and so on.
Congress, however, did not specify which particular deposits must be
controlled by the additives mandated by section 211(l), nor did it
state that EPA must set specifications such that additives would
prevent all possible deposits which could possibly form anywhere in an
engine or fuel supply system. Finally, Congress did not define the term
``specifications'' in any way. This term could be interpreted to mean
the additives' specific chemical composition, or performance
characteristics, or the general type or amount of additive which must
be added to gasoline. Therefore, the Agency believes that Congress left
EPA with broad discretion and authority to implement those provisions
in an appropriate regulatory framework that achieves the general goals
of Congress in adopting section 211(l).
Looking at the Act's legislative history, EPA believes that the
primary purpose of section 211(l) is to reduce emissions from gasoline-
fueled vehicles and engines and to prevent engine wear or damage which
could lead to increased emissions. Section 211(l) was added to the 1990
Clean Air Act Amendments during conference. Prior to the conference
sessions, detergent additive provisions were included in the bills
passed by each house of Congress only as items in different provisions
for reformulated gasoline (RFG).
The bill passed by the House of Representatives contained a
requirement that cleaner gasolines ``shall contain additives to prevent
the accumulation of deposits in engine fuel supply systems.'' S. 1630,
101st Cong., 2d Sess., (1990). The Report of the House Committee on
Energy and Commerce described the purpose of the RFG provision, stating
that ``(s)uch cleaner gasoline must achieve the greatest reduction in
ozone-forming VOC and air toxic emissions achievable through
reformulation of conventional gasoline, taking into consideration the
cost of achieving such emissions reductions and health, environmental
[[Page 35313]]
and energy impacts.'' H.R. Rep. 490, 101st Cong. 2d sess., 297 (1990).
Given the stated purpose of the RFG provision to reduce vehicle
emissions, and the express requirement that RFG contain detergent
additives, EPA believes that the House intended that EPA would require
additives in RFG for the purpose of reducing emissions.
The bill passed by the Senate included detergents as an alternative
to RFG regulations, as follows:
In the event that the Administrator does not promulgate the
[fuel quality] regulations required by this paragraph, effective
January 1, 1994, it shall be unlawful to sell, offer for sale,
supply, offer for supply, dispense, transport, or introduce into
commerce any fuel for use in a gasoline-powered vehicle unless such
fuel contains additives effective in preventing the accumulation of
deposits in fuel-injected engines.
S. 1630, 101st Cong. 2d sess., (1990). The Report of the Senate
Committee on Environment and Public Works expressed the purpose of the
RFG regulations as follows:
Subsection (k)(1) requires the Administrator to establish fuel
quality standards to maximize engine performance and to minimize
emissions from the combustion of fuels in vehicles and engines.
Engines may prematurely wear out due to impurities in the fuel. Such
fuel can clog fuel injectors, cause additional corrosion and
otherwise affect engine performance, and cause an increase in air
pollution emissions from the engine. In addition, fuel additives,
such as detergents, are available to maximize the performance of
engines and minimize emissions.
S. Rep. No. 228, 101st Cong. 1st Sess., 116 (1989) (emphasis added).
Thus, EPA believes that the primary legislative intent behind the
precursors of section 211(l) was to prevent or reduce vehicle
emissions.
The bill reported by the conference committee adopted an RFG
provision which was similar to the House provision, although it no
longer expressly required detergent additives in RFG. This provision
required the Administrator to promulgate regulations imposing the more
stringent of two options, either a formula, which would require
detergent additives, or a performance standard for VOC emissions. In
addition, this bill included the current section 211(l), which requires
detergent additives in all gasoline sold after January 1, 1995. There
is no further explanation anywhere in the legislative history of the
addition of section 211(l) to the bill. H.R. Conf. Rep. No. 952, 101st
Cong., 2d Sess., (1990).
EPA believes that it is reasonable to assume that the intent of
Congress with respect to section 211(l) was essentially the same as its
intent with respect to the prior iterations of the similar provisions
in the RFG arena, i.e. to reduce vehicle and engine emissions, and to
prevent engine wear which may contribute to such emissions. Section
211(l) provides EPA with broad authority to implement its provisions
within an appropriate regulatory scheme that furthers the goals of
Congress in adopting this provision.
In accordance with this interpretation, the certification program
specifies the engine and fuel supply system deposits that must be
controlled, the level of control that is required, and the
responsibilities of various persons in the manufacturing, refining, and
distribution systems to see that gasoline used by the ultimate consumer
is properly additized. The certification program also establishes
specifications for detergents for different gasoline pools depending on
their deposit-forming tendency, and a specification for ``zero
additive'' if a particular segregated gasoline pool is shown to have
very little deposit-forming tendency. Like the existing interim
detergent program, the certification program specifies that all parties
involved in the chain of gasoline production, distribution and sale are
responsible for compliance with the gasoline detergency requirements.
The certification program also continues the interim program's
precedent of applying certain requirements of the detergent program
directly to manufacturers, distributors, and carriers of detergent
additives, prior to, and after the blending of such additives into
gasoline.
As discussed in the preamble to the interim rule, EPA is issuing
today's final rule under the authority of sections 211 (a), (b), and
(c) as well as section 211(l). These sections of the CAA underscore
EPA's authority to require the submittal of compositional information
and test data directly from manufacturers of gasoline detergent
additives. Section 211(b)(1) authorizes EPA to require manufacturers to
submit information on the composition and use of fuels and fuel
additives designated under section 211(a). In 40 CFR part 79, gasoline
fuels and any additives intended for use in gasoline fuels have been so
designated. Furthermore, 211(b)(2)(B) specifically calls for fuel
additive registrants to ``furnish the description of any analytical
technique that can be used to detect and measure any additive in such
fuel * * *'' EPA's authority to require the submittal of data from the
detergent additive manufacturer is also supported by the provisions of
Section 114 of the CAA, which authorizes the Administrator to collect
any information which may reasonably be required to carry out the
purposes of the Act from any person subject to the provisions of the
Act.
Section 211(c)(1) provides EPA broad authority to regulate the
introduction into commerce, production, distribution, and sale of fuels
and fuel additives to protect the public health and welfare. Since the
interim and certification program rules have been adopted pursuant to
section 211(c) as well as section 211(l), the preemption provisions of
section 211(c)(4)(A) act to prohibit certain state fuel controls. A
specific exception to the Federal preemption is applicable in the case
of California, which has established its own detergent program as
permitted under section 211(4)(B). Also, pursuant to section
211(c)(4)(C), a state could adopt a detergent program as part of its
State Implementation Plan if it were necessary to achieve a national
primary or secondary ambient air quality standard. The relationship
between the Federal and California detergent gasoline programs is
discussed further in Section V below.
Section 211(c)(1) requires a finding that either (A) any emission
product of a fuel or fuel additive causes, or contributes, to air
pollution which may reasonably be anticipated to endanger the public
health or welfare, or (B) emission products of a fuel or fuel additive
will impair to a significant degree the performance of any emission
control device or system. EPA has determined that emissions from
gasoline use cause or contribute to such harmful air pollution (58 FR
64213, 64215). This rule is the second phase in EPA's attempt to
control such emissions through restrictions on the production and sale
of gasoline and gasoline detergent additives. This rule requires that
detergent additives manufactured for use in gasoline meet certain
standards, and requires that gasoline be blended with such additives at
the proper rate. This will reduce emissions from gasoline use that
cause or contribute to harmful air pollution.
Before EPA can regulate under its section 211(c)(1)(A) authority,
section 211(c)(2)(A) requires the Agency to consider ``other
technologically or economically feasible means of achieving emission
standards under section (202).'' This has been interpreted as requiring
consideration of regulation through motor vehicle standards under
section 202 prior to regulation of fuels or fuel additives under
section 211(c)(1)(A). Ethyl Corp. v. Environmental Prot. Agcy., 541
F.2d 1, 32 (D.C.Cir. 1976). This does not establish a mandatory
preference for
[[Page 35314]]
vehicle controls over fuel controls, but instead calls for the good
faith consideration of motor vehicle standards before imposition of
fuel controls (541 F.2d at 32, n. 66). This merely reflects Congress'
recognition that fuel controls under section 211(c)(1)(A) might
logically involve controls on fuel composition itself, while vehicle
standards under section 202 are generally performance standards
regulating vehicle emissions and not the design or structure of the
vehicle. Fuel controls might therefore lead to greater government
involvement in the regulation of the manufacturing process than would
be expected from vehicle controls (541 F.2d at 11, n. 13). Congress
addressed this concern by requiring Agency ``consideration'' of vehicle
standards under section 202 before imposition of fuel controls under
section 211(c)(1)(A). It is important to note that the Administrator
must in good faith consider such vehicle controls, but retains full
discretion in deciding whether to adopt either fuel or vehicle
controls, or both (541 F.2d at 32, n. 66).
In evaluating motor vehicle controls under section 202 in this
context, EPA has found that vehicle manufacturers already have an
incentive to design vehicles to reduce deposit formation. Deposits in
fuel injectors and intake valves affect a vehicle's driveability as
well as its emissions. Because consumers often look to a vehicle's
manufacturer to resolve driveability problems, manufacturers who
address such issues proactively through design modifications have a
market advantage over those who do not.
Another issue that EPA considered with respect to motor vehicle
controls is that deposits affect vehicles currently in use. Any motor
vehicle standard which EPA might impose to prevent accumulation of
deposits therefore would not have an impact until new model vehicles
replaced a significant portion of the existing vehicle fleet. In
addition, EPA is barred by section 202(i)(3)(C) from imposing new
standards on light duty vehicles until after model year 2003; thus any
emissions or other standard for such vehicles would not even be
introduced into the U.S. vehicle market for almost a decade. A fuel
control related to the gasoline, however, will help reduce emissions
from the entire in-use fleet of motor vehicles, as well as from non-
road engines and vehicles that use gasoline.
Finally, 211(l) requires that all gasoline sold to the ultimate
consumer after January 1, 1995 contain detergent additives to prevent
accumulation of deposits, and requires the Administrator to establish
specifications for such additives. Therefore, whether or not it was
appropriate to establish vehicle standards, it would not be possible
for EPA to set vehicle standards alone.
Given these circumstances, EPA has determined that it is
appropriate to promulgate this additive regulation now, regardless of
whether motor vehicle controls are adopted later under section 202.
This decision is based on the following facts. First, motor vehicle
manufacturers are already designing engines to prevent susceptibility
to deposit formation due to market incentives. Second, the requirement
to sell additized gasoline will have immediate impacts on emissions
from gasoline combustion from both motor vehicles and non-road engines
and vehicles, as the detergents will begin preventing deposit formation
as soon as the fuel is used. There also may be some additional clean-up
benefit of using detergent additized gasoline in engines which already
have deposits. Finally, EPA is required by law to promulgate this
regulation under the separate authority of section 211(l).
C. Overview of This Action
With this final rule, EPA is establishing a detergent additive
certification program which modifies many of the provisions of the
existing interim detergent additive program. As mentioned above, the
interim program requires compliance with the CAA mandate that all U.S.
gasoline be treated with deposit control additive prior to its use by
the consumer. To qualify for use as a detergent under the interim
program, an additive must be properly registered (under 40 CFR part 79)
and must have undergone some testing to demonstrate its ability to
control deposit formation when used at the concentration (treat rate)
recommended by its manufacturer. However, the interim program does not
require specific test procedures and test fuels to be used for this
purpose, nor does it include specific deposit control performance
standards which must be met. Today's rule establishes these specific
requirements for detergent certification, along with changes to the
regulations regarding enforcement of the certification program. Further
discussion of the enforcement provisions is presented below in Section
VIII.
Broadly speaking, the detergent additive certification program
follows the overall performance-based approach proposed in the NPRM. To
be certified for use in compliance with gasoline detergency
requirements, an additive must demonstrate the ability to meet
specified standards of IVD and PFID control in the context of
prescribed test fuels and standardized, vehicle-based test procedures.
The practical result of this testing is to ascertain an additive treat
rate that can meet the required standards of performance. The
certification treat rate constitutes the lowest concentration at which
the additive may be used by detergent blenders in formulating gasoline
for sale to or use by the consumer.
As proposed in the NPRM, the certification program includes a
number of voluntary certification options. These options permit a
detergent additive to be tested in one or more test fuels, resulting in
different minimum treat rate requirements for different types of
gasoline (e.g., oxygenated or nonoxygenated, premium or regular) and/or
different gasoline pools (e.g., national, PADD, or segregated
supplies). The flexibility provided by these options is described in
more detail in Section IV of this preamble.
While generally similar to the proposed approach, the detergent
certification program finalized today differs somewhat from the NPRM in
certain key areas. Most of these changes are the result of efforts by
EPA to streamline and simplify the requirements of the program. For
example, the NPRM proposed an approach based on a two-tier
certification structure, such that gasolines of very high severity
(i.e., tendency to produce IVD and PFID), would be required to be
additized only with detergents that had undergone testing in specified
high-severity test fuels. Implementation of this provision would not
only require separate detergent certification for use in generic and
high-severity gasolines, but would also require ongoing evaluations of
the severity of gasoline supplied to the distribution terminals to
determine if detergent certified for severe gasoline would be needed or
if generic detergent would suffice. As described further in Section
IV.B, EPA now believes that the potential benefit of the two-tier
certification approach is far outweighed by the associated
implementation burdens. Thus, today's rule finalizes a single-tier
certification approach and does not contain special requirements for
gasoline of very high severity.
Another departure from the proposed approach pertains to the number
and composition of test fuels required for each certification option.
Under the proposed rule, to qualify for national certification or for
any certification option, a detergent additive would be required to
undergo testing in a matrix of up to four test fuels. Each test fuel
[[Page 35315]]
was to contain a different combination of relatively high levels of
specified fuel parameters (i.e., ``severity factors'') and oxygenate
components. In addition, test fuels meeting the required specifications
would have been required to be located among commercial fuel supplies,
not specially formulated to specification from refinery blend stocks.
For reasons explained at length in the Summary and Analysis of
Comments, and summarized below in Section VI, the test fuel
requirements adopted today are considerably simpler than the proposed
requirements. The final regulations require testing of a detergent
additive in only one specified test fuel for any given certification
option, and permit test fuels to be formulated to specification from
refinery blend stocks rather than requiring them to be taken from
finished gasoline stock located by sampling among commercial gasoline
supplies. However, to ensure that test fuels resulting from this
simplified process will adequately challenge the detergent additive,
the regulations require certifiers to test the unadditized test fuels
to demonstrate their deposit-forming tendency, prior to their use in
additive certification testing.
A third set of provisions which reflect change from the proposed
provisions is in the important area of basic information requirements.
For example, the information which additive manufacturers must submit
regarding the composition of their detergent additives has been changed
to be more consistent with typical additive manufacturing practices
(see Section III.A). Moreover, the proposed registration requirements
for fuel blenders that relate specifically to the usage of detergent
additives are not retained in this final rule (see Section III.B).
Subsequent sections of this preamble describe the major provisions
of the detergent certification program in more detail, including
further discussion of the way in which the requirements differ from
those proposed in the NPRM.
D. Applicability
The applicability of detergency requirements to various categories
of gasoline is based on the statutory language of Sec. 211(l), which
explicitly includes ``any gasoline'' in its mandate. EPA has
interpreted this to include fuel commonly or commercially known as
gasoline, that is produced for use in motor vehicles or engines or
nonroad vehicles or engines. Thus, the applicability of this program is
essentially the same as under the interim detergent program. The
regulations apply to all gasoline, including conventional, reformulated
(RFG), oxygenated, and leaded 4 gasoline, whether intended for or
used by highway or nonroad vehicles or engines. Marine fuel, gasoline
used for military purposes, gasoline service accumulation fuel under
the Federal motor vehicle control program (for emissions control system
deterioration testing purposes), and factory fill fuels are also
required to comply with detergency requirements.
---------------------------------------------------------------------------
\4\ Leaded gasoline was banned from use in highway vehicles as
of January 1, 1996, and the EPA regulations no longer contain a
generally applicable definition of leaded gasoline. However leaded
fuel is still permitted to be used in nonroad engines, and leaded
gasoline is subject to gasoline detergency requirements. In this
final rule, therefore, EPA has included a definition of leaded
gasoline (at Sec. 80.140) that is applicable only to 40 CFR subpart
G. This definition is effectively the same as the previous,
generally applicable definition.
---------------------------------------------------------------------------
In the Reopening Notice, EPA requested comment on whether
detergent-additized gasoline should continue to be required for the
gasoline portion of E85 or M85 alcohol-based fuels, in view of comment
from the automobile industry that some detergent additives might be
incompatible with such fuels. In response, the American Petroleum
Institute (API) commented that EPA should allow industry to resolve
compatibility issues through the marketplace. API pointed out that E85
and M85 fuels are used in flexible-fuel vehicles, which are expected to
be operated at times on ``ordinary'' detergent gasoline. Thus, due to
mixing in the fuel tank, alcohol-based incompatibility problems which
might arise between some detergents and alcohol-based fuels would need
to be addressed even if the gasoline portion of the alcohol blends were
exempt from detergency requirements. EPA agrees with API and, in this
rule, has not changed the detergent applicability requirements of the
interim program as they relate to the gasoline portion of alcohol-based
fuels.
As in the interim program, the only categories of gasoline which
EPA is exempting from detergency requirements are racing fuel, aviation
fuel, emissions certification fuel, and fuel used for research and
development purposes. In the case of the racing fuel exemption, this
final rule removes the interim program's restriction that only gasoline
sold or dispensed on the premises of a racing facility can qualify. In
response to comments stating that the interim rule's restriction is
inconsistent with the actual handling and use of racing fuel, EPA
decided to permit racing fuel to qualify for the detergency exemption
regardless of location, provided that the fuel is distributed only to
racing vehicles that are restricted to nonhighway use, and dispensed
only from retail pumps clearly labeled as containing racing gasoline
(see Section VIII.B.7).
E. Program Start-Up and Compliance Dates
Full compliance with the provisions of the detergent certification
program is not mandatory for approximately a year's time. This one-year
start-up period is provided to allow certifiers sufficient lead time to
complete their testing and reporting requirements, for detergent
blenders to obtain supplies of certified additives and establish
associated administrative and quality control support procedures, and
for gasoline retailers to obtain sufficient quantities of properly
additized gasoline. Since the interim program is to continue in effect
until the certification program becomes mandatory, today's rule also
revises enforcement provisions of the interim program to make these
provisions more efficient and commensurate with those in the parallel
certification program. The revisions to the interim program in today's
rule become effective September 3, 1996.
Mandatory compliance with the requirements of the detergent
certification program is required for different parties in the gasoline
and detergent distribution system at different times, based on their
position in the distribution chain. As of July 1, 1997, detergent
manufacturers must sell only properly certified detergents to their
detergent blending customers. Also as of July 1, 1997, detergent
blenders must blend certified detergent at the prescribed concentration
into all gasoline they distribute, and distributors must sell or
transfer only gasoline and PRC properly additized with certified
detergents. To facilitate the proper disposal of residual non-certified
detergent additive, EPA will allow such detergent to be blended into
gasoline in combination with certified detergent until January 1, 1998,
provided that the noncertified detergent was in the detergent blender's
possession prior to July 1, 1997 and that it accounts for less than 10
percent of a detergent storage tank's delivered capacity (i.e. no more
than 10 percent of the detergent blended into a batch of gasoline). In
addition, the total detergent blended into a batch of gasoline must be
sufficient to attain the minimum concentration recommended by the
additive manufacturer for the certified detergent.
Effective August 1, 1997, all gasoline sold or transferred to the
ultimate
[[Page 35316]]
consumer must be additized with certified detergents in conformity with
any applicable detergent use restrictions. An extra month is allowed
from the time detergent blenders are required to begin blending
certified detergent to the time gasoline retailers are required to sell
gasoline containing certified detergent, to provide adequate time for
gasoline containing noncertified detergent in the retailer's storage
tanks to be replaced with properly additized gasoline. This approach is
consistent with that used successfully in other EPA fuels programs,
such as in the regulation of gasoline volatility (54 FR 11869, March
22, 1989), and the reformulated gasoline program (59 FR 7841, February
16, 1994).
Prior to July 1, 1997, additive manufacturers and detergent
blenders may comply either with the interim detergent program
regulations or the detergent certification program regulations
finalized today. EPA anticipates that, many detergent additives will be
certified prior to the final deadline,5 and certified additives
will inevitably be delivered to fuel terminals and blended into
gasoline before the deadline. If a detergent is certified prior to July
1, 1997, the requirements of the certification program will apply to
the use of that detergent as of the effective certification date. In
most instances, the use of a certified additive prior to the required
date will not significantly change the detergent blender's requirements
under the interim rule. The provisions of both programs require the
detergent blender to add detergent to gasoline at a treat rate no less
than the minimum concentration recommended by the additive manufacturer
(also called the lowest additive concentration or LAC),6 and
require the additive manufacturer to provide adequate blending
instructions to the detergent blender, including the minimum
recommended concentration reported to EPA in accordance with the
applicable detergent certification requirements. Thus, while the
specified minimum amount of detergent may well change after
certification, the nature of the additization and record-keeping
activities of the detergent blender will usually not be greatly
affected.
---------------------------------------------------------------------------
\5\ The certification date will be the earlier of the receipt by
the certifier of acknowledgement by EPA of its receipt of the
certification letter, or 60 days after the certifying party receives
the return receipt from the postal carrier acknowledging that the
letter was delivered to EPA.
\6\ However, both the interim and certification programs contain
a special provision allowing the detergent blender to use a
detergent at a lower concentration than that recommended by the
additive manufacturer, provided that the detergent blender informs
EPA of this intent and can provide supporting data to substantiate
the deposit control effectiveness of the detergent at the specified
lower concentration.
---------------------------------------------------------------------------
Exceptions will occur in the case of detergent additives which have
been certified under options that place restrictions on the type of
gasoline in which the additive may be used (see Section IV). For
example, a detergent may be certified with two different treat rates,
one for use in all gasoline, and one for use only in nonoxygenated
gasoline. In such an instance, if the detergent blender chooses to use
the detergent at the treat rate certified for use in nonoxygenated
gasoline, then the blender is required to conform to the certification
program provisions which govern the handling of use-restricted
certified detergents, even if this occurs before July 1, 1997. In the
cited example, where the treat rate certified for nonoxygenated
gasoline is to be used, the blender must use the detergent only to
additize nonoxygenated gasoline. In addition, the blender must indicate
on the outgoing product transfer document that the gasoline has been
additized with detergent restricted only to nonoxygenated gasoline,
thus informing downstream parties of the existing restrictions. In
essence, each party in the distribution chain that handles gasoline
additized with a detergent under a use-restricted certification must
observe the product transfer document and all other applicable
requirements of the certification program. Further discussion on
additive manufacturer and detergent blender responsibilities in regard
to the handling of use-restricted detergents can be found in Section
VIII.
II. Combustion Chamber Deposit Control
In the NPRM, EPA did not propose any requirements for combustion
chamber deposit (CCD) control because of uncertainty regarding the
scope of the problem and the lack of suitable performance test
procedures and performance standards. Subsequently, some commenters
expressed concern that a Federal requirement for PFID and IVD control
might encourage detergent overuse, which could potentially exacerbate
CCD concerns. Other commenters, however, agreed that regulatory control
of CCD was not appropriate due to the lack of data and adequate
standardized performance test procedures and standards. As a result,
EPA requested additional input from affected industries (see Docket
item IV-E-35, ``Summary of Additional Comments on Combustion Chamber
Deposits''), and published a notice formally reopening the comment
period on the issue of CCD control. A detailed discussion of the
comments and EPA's response may be found in the Summary and Analysis of
Comments document located in the docket for this rulemaking. A brief
synopsis of this discussion appears below.
After carefully reviewing all of the public comment and currently
available information, EPA is not able to determine that a CCD control
requirement is warranted. Available information on the impacts of CCD
on emissions, fuel economy, and driveability are inadequate to draw
conclusions regarding the costs and benefits of requiring additives for
CCD control. In addition, no appropriate performance test procedures
and standards or effective surrogate parameters for measuring CCD have
yet been developed. Further study may indeed provide more information
on which EPA could base a CCD control requirement. Thus, EPA will
continue to evaluate CCD issues and will reconsider adopting a CCD
control requirement at a later date if appropriate.
For these reasons, EPA is very pleased that, under the auspices of
the Coordinating Research Council (CRC), members of the automotive and
petroleum industries have embarked on a joint research program to
investigate some of the controversial issues which still remain about
the causes, effects, and accurate evaluation of CCD. The work of the
CRC is expected to help elucidate the potential need for and
environmental benefits of CCD control, and to investigate vehicle
parameters that influence vehicle response to CCD in preparation for
potential development of standard test procedures for measuring CCD and
evaluating a detergent's ability to effectively control CCD. EPA
believes that the products of CRC's work will greatly facilitate EPA's
investigation of whether CCD control is necessary and feasible.
A. CCD Impacts on Vehicle Emissions
Most members of the petroleum and detergent additives industry
commented that uncertainties persist regarding the scope of a CCD-
related emission problem and that test procedures and standards are
lacking. They stated that EPA should defer action until research
planned by the CRC has been completed.
Automotive industry commenters stated that the CCD-related
emissions impact is sufficiently well demonstrated to compel EPA to
implement a CCD control requirement; this statement was supported by
limited data and literature
[[Page 35317]]
references. Others stated that EPA should implement a requirement to
ensure that detergent additives are used that can remove existing CCD
and prevent the formation of CCD, because the vehicle octane
requirement increase (ORI) caused by CCD results in higher emissions.
While EPA agrees that there is sufficient data to demonstrate a
probable link between CCD formation and increased NOX emissions,
the magnitude of the NOX emissions impact has not been
sufficiently defined to allow EPA to determine how substantial an
impact it is. The impact of CCD on hydrocarbon and carbon monoxide
emissions is even more uncertain. Characterization of the magnitude of
the CCD emissions impact is important so that EPA can evaluate the
costs and effectiveness of potential CCD control measures. At this
time, EPA is not in a position to determine that CCD, and particularly
any detergent additive contribution to CCD, causes vehicle emission and
performance problems warranting regulatory control. The weight of the
public comment indicates that, for major marketers, representing 60-70
percent of gasoline sold in the U.S., EPA's IVD and PFID performance
mandate will not cause a change in the types of detergent additives
used or result in appreciably increased concentrations of these
detergents. As for the rest of the market, EPA's IVD and PFID
performance requirements are expected to bring the entire industry up
to the levels of deposit control protection provided by major marketers
prior to implementation of regulatory controls. Because EPA's IVD and
PFID performance requirements are expected to bring the entire market
up to a level of deposit control protection previously achieved by
major marketers, EPA believes that these requirements will not create
or exacerbate CCD problems. Thus, in the absence of sufficient data to
support the need for a requirement to control the contribution of
detergent additives to CCD, EPA disagrees with automobile industry
comments that EPA is obligated to take immediate action in implementing
such a requirement.
B. CCD Energy Impacts
As mentioned above, several commenters stated that CCD contributes
to vehicle octane requirement increase (ORI), i.e., the need for higher
octane fuels to prevent engine knock as the engine ages. Higher octane
fuels require more crude oil to produce, thus causing an increase in
total refinery and vehicle energy use. Several commenters also stated
that if ORI were reduced, engine design might be further optimized for
improved fuel economy using gasoline of the octane quality currently on
the market.
The Department of Energy (DOE) conducted an evaluation of CCD
control additive technologies that also have ORI claims, and of the
potential energy and vehicle and refinery emissions implications of ORI
control.7 DOE concluded that a correlation exists between CCD and
ORI. However, DOE also stated that automobile manufacturers generally
design their vehicles to accommodate a worst case ORI condition, and
provide a built-in margin to ensure that the vehicle can continue to
operate on the fuel specified after the octane requirement stabilizes
at about 15,000 miles. DOE stated that most automobiles do not require
a higher octane fuel than recommended by the manufacturer. It is true
that exceeding the octane specification of the fuel recommended by the
manufacturer, if not compensated for by the use of a higher octane
fuel, could cause engine knock in vehicles that are not equipped with
knock sensors or retardation of engine timing in engines that are
equipped with knock sensors. Both engine responses could result in
inefficient combustion, and attendant reduced fuel economy. However, at
this time, EPA agrees with DOE that the available information does not
indicate widespread exceedance of the ORI tolerance built-in by engine
manufacturers. Thus, EPA can not conclude that an ORI-based CCD control
requirement should be implemented to prevent an adverse impact on fuel
economy.
---------------------------------------------------------------------------
\7\ Docket items VI-D-43 and VI-D-45.
---------------------------------------------------------------------------
On the broader energy use question, the DOE analysis suggested that
the potential changes in crude oil use combined with questionable
effects on vehicle fuel economy would not make a compelling argument to
support the position that a reduction in CCD would result in a cost-
effective overall reduction in fuel consumption, total gasoline
refinery and motor vehicle emissions or energy use, or dependency on
foreign oil. In conducting its assessment, DOE took into account
refinery processing efficiencies, energy yield, and vehicle fuel
consumption. DOE stated that, based on their evaluation of available
data, the potential direct vehicle emission effects of CCD control
should be the primary factor considered in evaluating whether it is
appropriate for EPA to implement a CCD control requirement. EPA agrees
that the available information is inadequate to conclude that a
reduction in ORI would result in a cost-effective reduction in total
energy use or emissions from gasoline refineries and motor vehicles.
C. CCD Interference
Automotive industry commenters urged EPA to implement a CCD control
requirement to prevent potential negative impacts of CCD on
driveability, including combustion chamber deposit interference (CCDI).
They stated that CCDI problems are expected with the increased use of
IVD control additives.
The petroleum industry stated that there is no documented basis for
EPA to consider a CCD control measure to prevent CCDI associated with
detergent additive overuse. They stated that data indicates that
manufacturing tolerances play a predominant role in the CCDI problem,
and cited a study indicating that engines with a 0.9 mm squish gap
design were unaffected by CCDI, while off-specification tolerances as
low as 0.3 mm were virtually guaranteed to produce the engine knock
associated with CCDI regardless of the fuel used.
EPA agrees that available data indicates that manufacturing
tolerances play a predominant role in the CCDI problem. EPA therefore
does not believe that there are compelling reasons at this time to
implement a CCD control requirement in order to prevent CCDI-related
driveability problems. Moreover, the IVD and PFID requirements
implemented with this rulemaking are not expected to increase levels of
CCD relative to those seen in current vehicles using major petroleum
marketers' gasoline.
D. Unwashed Gum Levels and CCD
Several automobile industry commenters stated that, as a surrogate
for CCD control, EPA should implement an interim limit on gasoline
unwashed gum levels to prevent adverse side effects that might result
from EPA's IVD and PFID performance mandates. One commenter presented
an analysis of gasoline survey data which, it stated, indicates a
correlation between increasing unwashed gum levels in commercial
gasolines and the use of increasing concentrations of IVD detergent
additives. Data was submitted by another commenter which, it stated,
indicated that certain IVD and PFID additives contribute to CCD
formation, and showed a correlation between unwashed gum levels and
CCD.
On the other hand, several fuel and additive industry commenters
stated that available data does not demonstrate a correlation between
unwashed gum levels and CCD. They presented data which they stated
indicates that no general correlation between unwashed
[[Page 35318]]
gum levels and CCD exists. They also stated that unwashed gum levels
are not necessarily a predictor of detergent additive concentrations.
EPA has concluded that no correlation of unwashed gum levels or
additive concentrations with gasoline CCD-forming tendency has been
established. EPA agrees with comments from fuel and additive producers
that unwashed gum levels cannot be used as a reliable predictor of
detergent concentration. EPA believes that available data indicates
that detergent additives vary in their tendency to contribute to CCD,
and that this tendency does not necessarily correlate with unwashed gum
levels. Based on a review of all of the available data, EPA believes
that implementing an unwashed gum limit on additized gasoline would not
necessarily produce beneficial results and might actually produce a
barrier to the development of CCD control additives.
E. Other Potential Adverse Side Effects of Detergent Overuse
Automobile industry commenters raised concerns about the effects
detergent additive overuse might have on materials and components of
automobiles. The comments stated that intake valve sticking and
deterioration of the fuel system, oxygen sensor and catalyst could
result from the use of overadditized fuel. API commented that negative
impacts on vehicles of accidental overtreatment have been very rare.
EPA finds no compelling reason from an emissions control standpoint
to implement specific regulatory measures to prevent occurrences of
detergent overuse. To the extent that driveability problems may exist
due to the failure of fuel marketers to institute adequate quality
control measures, the industries involved are in a position to
adequately resolve these problems without the imposition of a
regulatory control. As noted above and discussed in the Summary and
Analysis of Comments, EPA has sufficient reason to believe that its IVD
and PFID control requirements will not increase the likelihood that
detergent overuse, and any attendant side effects, will take place.
III. Basic Information Requirements
Pursuant to the fuel and fuel additive registration regulations in
40 CFR part 79, both additive manufacturers and fuel manufacturers are
required to report specific identification, composition, and other
basic product information to EPA. In the NPRM for the detergents
program, EPA proposed additional information that would be required for
detergent additive registration in order for a detergent product to be
eligible for use by blenders in complying with the gasoline detergency
requirements of the rule. EPA also proposed specific registration
requirements for fuel manufacturers related to their detergent blending
responsibilities under the program. This section briefly describes the
originally proposed information requirements as well as those included
in the interim detergent rule, and summarizes the changes to these
requirements reflected in today's final rule.
A. Detergent Additive Information Requirements
Under the fuel additive registration requirements of Sec. 79.21, an
additive manufacturer must submit certain compositional and analytical
information on each of the additive products it wishes to market. Among
other requirements, these include the chemical identification and
concentration of the components of the additive product; the chemical
structure of each component; an analytical technique for detecting and/
or measuring the additive as mixed in fuel; the identity of the fuels
in which the use of the additive is recommended and the purpose-in-use
and manufacturer's recommended range of concentration of the additive
in each such fuel.
Consistent with these standard registration requirements, EPA
proposed that, for a detergent additive to be eligible for fulfilling
gasoline detergency requirements, detergent certifiers would be
required to submit the following information on detergent additive
composition: (1) A specific chemical description of each component of
the detergent package, (2) the exact weight/volume percent of each
component of the detergent package, (3) a fourier transform infrared
spectroscopy (FTIR) test method to obtain a qualitative and
quantitative spectrum of the detergent additive package both in its
pure state and in finished gasoline, and (4) an actual infrared
spectrum of the detergent additive package and each component of the
detergent package. The detergent NPRM also proposed that, upon EPA's
request, a sample of the detergent additive must be provided to the
Agency for evaluation.
The information reporting requirements finalized in the interim
detergent rule (at Sec. 80.141(c)) maintains the proposed requirement
that the exact amount of each component of the detergent additive
package must be reported, and specifically prohibits the reporting of
any detergent-active component as the product of other chemical
reactants. In addition, the interim rule requires that, for each
detergent-active component, the registration must indicate which of the
following chemical categories applies: (1) Polyalkyl amine, (2)
polyether amine, (3) polyalkylsuccinimide, (4) polyalkylaminophenol,
(5) detergent-active carrier oil, (6) other detergent-active component.
The interim regulations state that a single detergent additive
registration may contain no variation in the identity or concentration
of any detergent-active component.8 The regulations require the
availability of an analytic procedure, preferably based on FTIR, that
is capable of both qualitative and quantitative identification of each
component of the detergent additive package. The regulations do not
require that the procedure be capable of identifying the additive when
mixed in fuel.
---------------------------------------------------------------------------
\8\ Subsequently, in Question and Answer Document #3 (Docket
item IV-C-10), EPA clarified that only downward variation in the
concentration of any detergent-active component was prohibited.
---------------------------------------------------------------------------
Following publication of the interim rule, CMA proposed several
alternatives to those requirements. CMA stated that the compositional
reporting requirements in the interim rule failed to recognize the
essential chemical nature of deposit control additives and the
processes by which they are manufactured. CMA asserted that compliance
with the requirements would be impossible, given the non-homogeneous
nature of detergent polymers and carrier oils, and the inherent
variability in detergent manufacturing, blending, and analytic sampling
processes. CMA was also concerned about the compositional test results
required to establish a defense to presumptive liability under
Sec. 80.156(c)(4)(ii) of the interim regulations.
CMA suggested that, rather than exact concentrations, only target
concentrations of the various detergent-active components should be
required to be reported for registration. CMA also stated that
registrants should not be precluded from reporting detergent-active
components as the product of other chemical reactants, provided that
the registrant also provide a description of product parameters that
are sufficient to effectively define the registered product.
As described fully in the Summary and Analysis of Comments and in a
memorandum to the docket,9 EPA has
[[Page 35319]]
considered the various issues raised by CMA, and has also reviewed its
own experience with the interim program. Under the interim program,
some manufacturers appear to have been able to comply with the
requirement to specifically identify and quantify each component of the
detergent package, while others have maintained that they are unable to
comply. While this experience does not enable EPA to make a definitive
judgment as to the general appropriateness of the interim reporting
requirements, it does demonstrate an ongoing problem in at least some
cases. Thus, EPA is adopting several provisions in today's rule that
will provide alternative reporting requirements. EPA believes these
alternative will accommodate industry's reasonable concerns about
practical and technical limitations on the ability to define detergent
additive composition, while also providing EPA with assurance that
detergent composition variability will not adversely affect in-use
deposit control effectiveness. The requirements finalized in today's
rule are summarized below.
---------------------------------------------------------------------------
\9\ ``Interactions Between the Environmental Protection Agency
(EPA) and the Chemical Manufacturers Association (CMA)'', Jeff
Herzog, OMS, Judy Lubow, OECA, Docket item IV-E-41.
---------------------------------------------------------------------------
1. Compositional Data. The interim rule's requirement that all
components of the detergent additive package be identified chemically
and by concentration (weight or volume percent of the product, as
applicable) will remain in effect. Within a single detergent additive
registration, the identity of detergent-active components is still not
permitted to vary. However, today's final rule accommodates
manufacturing variability to a greater degree than previously allowed
under the interim rule. Specifically, a range of concentrations is
permitted to be reported for detergent-active components, provided that
at the lower end of the range, the deposit control effectiveness of the
additive package is not less than that demonstrated during
certification testing.10
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\10\ Detergent certification testing must be conducted with
each detergent-active component present in the test fuel at a
concentration that does not exceed the concentration reported as the
lower bound in the range of concentrations.
---------------------------------------------------------------------------
Recognizing the heterogeneous nature of the carrier oils and
detergent-active polymers which frequently occur in detergent additive
formulations, these final regulations provide two methods by which the
chemical composition of detergent-active components may be reported.
When it is reasonable to do so, detergent-active components are to be
identified (as originally proposed) using standard chemical
nomenclature or a description of the chemical structure, or both.
However, when the manufacturer believes this requirement to be
infeasible or impractical, detergent-active components (both detergent-
active polymers and detergent-active (chiefly synthetic) carrier oils)
may be reported as the product of specified reactants. In such cases,
the reactant materials must be identified, together with the acceptance
criteria normally used by the manufacturer for determining that these
materials are suitable for use in synthesizing the detergent
components. Upon EPA's request, documentation must be provided by the
manufacturer that the reported acceptance criteria are in fact those
normally required of its suppliers. In addition, the detergent-active
components must be described by means of gel permeation chromatography
(GPC), providing a quantitative distribution of the polymeric
components by molecular size. The GPC requirements include a
description of the test procedure, including the use of appropriate
calibration standards, and the resulting chromatograms. EPA believes
that, when combined with other reporting and sample requirements
(described below), this alternative approach will provide adequate
identifying information for detergent-active components.
For non-detergent-active carrier oils (usually petroleum-based),
the additive manufacturer must provide the percentage by weight of
oxygen, nitrogen and sulfur, when present in the carrier oil at greater
than 0.5 percent by weight. In addition, the manufacturer must provide
the T10, T50, T90, end boiling point, API gravity, and viscosity of the
carrier oil mixture.
These registration requirements will provide some useful
information for determining whether an in-use detergent additive
conforms to the composition of the detergent additive package which was
shown to be effective during certification testing. However, in light
of the limited ability of detergent manufacturers to precisely define
the chemical properties of their additive, EPA believes that additional
means are needed by which conformity with the composition reported in
the certification process can be confirmed. Therefore, today's rule
requires a sample of the detergent product to be submitted to EPA at
the time the certification letter is sent to the Agency, as well as an
FTIR-based test procedure together with the actual infrared spectra
produced by the procedure.
Under the interim rule and proposed certification rule, these items
were to be submitted on a per-request basis only. Thus, to accomplish
the Agency's objectives, EPA could have chosen to request the detergent
sample and FTIR from each additive manufacturer individually at the
time of detergent certification. However, this would be a time-
consuming and inefficient procedure. In fact, EPA's past experience
indicates that manufacturers may be reluctant to cooperate with such
requests. Therefore, EPA has instead chosen to require the submission
of these items with every certification letter. It should be noted,
however, that submission of detergent samples to EPA at the time of
certification does not mean that the Agency will confirm the validity
of the compositional information submitted by the additive
manufacturer. EPA reserves the right to request and analyze other
samples. Some detergent samples (or portions of samples) may indeed be
used to verify the registration information provided by the additive
manufacturers; others may be kept as baseline samples for monitoring
the conformity of future production batches. Detergent samples may also
be used by EPA chemists in efforts to develop improved analytical
methods for detergents and their components.
EPA is sensitive to manufacturer's concerns about the handling of
the samples they submit. To ensure the proper treatment of samples
claimed as confidential by the manufacturer, the regulations require
the detergent samples to be sent to EPA's chemistry laboratory in Ann
Arbor, which handles and stores such proprietary materials as part of
its day-to-day operations.11 Information claimed as confidential
will be protected as required under EPA's regulations concerning
confidential business information, at 40 CFR part 2. EPA also will take
all reasonable steps to maximize the shelf life of detergent samples.
To that end, today's rule requires that manufacturers inform EPA about
any known sample shelf life limitations, if any, and to indicate what
conditions (e.g.,temperature or light exposure) most affect shelf life.
Such information should be readily available to additive manufacturers
for their own quality control purposes.
---------------------------------------------------------------------------
\11\ See Docket item IV-B-09 for a discussion of the procedures
that will be observed in handling proprietary detergent additive
samples.
---------------------------------------------------------------------------
The Agency anticipates that detergent shelf life (i.e. the length
of time during which all of the pertinent properties that define a
detergent's functionality remain unchanged) will nearly always exceed a
year or more. In addition, certain basic properties (e.g., API gravity,
and viscosity), tend to be less sensitive to the passage of time. Thus,
a detergent sample may be useful for
[[Page 35320]]
certain limited testing purposes even after the normal shelf life has
expired. After an additive sample is no longer suitable for any
analytical testing purposes, it will be destroyed by the Agency.
Today's rule contains one additional compositional reporting
requirement which detergent manufacturers must fulfill if they wish to
be able to take advantage of relatively simple mechanisms which the
rule provides for demonstrating an affirmative defense to presumptive
liability (see Section VIII.B.2.a of this preamble). This provision
requires the manufacturer to submit to EPA certain physical product
parameters which will be monitored on each detergent production batch
for quality control purposes. Generally, the parameters to be monitored
for affirmative defense purposes include viscosity, density, and basic
nitrogen content, although other parameters may be added or substituted
upon the manufacturer's request and EPA's approval. For each such
parameter, the target value and range of variability and a description
of a standardized measurement test procedure are to be provided at the
time of certification. The designated test methods must be consistent
with the chemical and physical nature of the detergent product, and the
documented ASTM repeatability 12 for the method must be specified.
EPA will consider the parameter measurement to be an acceptable basis
for establishing an affirmative defense to presumptive liability if the
range of variability differs from the target value by no more than five
times the ASTM repeatability value, or by no more than 10 percent of
the target value, whichever is less. Due to the practical limitations
associated with the measurement of small quantities of certain product
parameters, this variability limit does not apply in the case of
nitrogen analysis (or other procedures for measuring concentrations of
specific chemical compounds or elements) when the target value is less
than 10 parts per million. In such cases, the acceptable variability is
instead limited to 50 percent of the target value.
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\12\ Repeatability of a test method is defined by ASTM as the
quantitative expression of the random error associated with a single
operator in a given laboratory obtaining replicate results with the
same apparatus under constant operating conditions on identical test
material within a short period of time. It is further defined as
that difference between two such single results as would be exceeded
in the long run in only one case out of twenty in the normal and
correct operation of the test method. (ASTM D 3244, Standard
Practice for Utilization of Test Data to Determine Conformance with
Specifications.)
---------------------------------------------------------------------------
EPA believes that establishing such limitations on the acceptable
range of product parameter variability is necessary to a credible claim
that a given batch of detergent is equivalent to the certified
detergent product. This is especially important in view of the fact
that deposit control performance testing is required only on a single
detergent sample of a given composition. While acknowledging that some
production variability is expected, EPA must still ensure that the
functionality of the detergent actually produced is reasonably
equivalent to that demonstrated during certification. EPA believes
that, along with other affirmative defense elements, the required
limits on manufacturing variability will provide adequate assurance on
a routine basis that the composition and attendant deposit control
efficacy of detergent production batches do not vary to such an extent
that the minimum recommended treatment rate reported by the additive
manufacturer is no longer representative of the detergent's actual
performance. Outside of these limits, EPA is not sufficiently confident
that the composition of detergent production batches would provide
adequate deposit control. The affirmative defense provisions in today's
rule provide additive manufacturers with practical and economical
methods to demonstrate that the deposit control efficacy of detergent
batches is maintained, while allowing a reasonable degree of production
variability. The regulations also allow manufacturers who cannot meet
these variability limits to request (and justify) other arrangements.
2. Minimum Effective Concentration. As specified in Sec. 79.21(d),
a fuel additive registration must report the minimum blending
concentration which the manufacturer recommends for the additive in
each type of fuel for which the additive's use is designated. In the
case of detergent additives registered for use in gasoline, the minimum
recommended concentration is required to be no less than the lowest
amount which the additive manufacturer has determined to be effective
for deposit control. Thus, the minimum recommended concentration is
also the lowest additive concentration (LAC) which the detergent
blender may use in gasoline to be in compliance with the detergency
requirements of this program (subject to any use restrictions that may
be applicable under a given certification option).
The interim detergent regulations require that the reported minimum
effective concentration be supported by appropriate test data, which is
to be supplied to EPA upon request. While rigorous test procedures and
performance standards are not specified, the interim rule does contain
general guidelines regarding the type(s) of tests and test fuels which
EPA will regard as sufficient, during the interim period, for
demonstrating an additive's deposit control effectiveness at the
specified minimum concentration. These flexible testing requirements
were appropriate, given the purpose and practical limitations of the
interim program.
As described in subsequent sections, however, the detergent
certification program requires that the minimum recommended
concentration be determined on the basis of specific deposit control
performance standards, as shown in the context of specific performance
tests and test fuels. Moreover, this final rule offers a number of
certification options (described in Section IV), such that a different
minimum concentration may be determined for different gasoline pools
(e.g., national, PADD, fuel-specific) or gasoline types (e.g., premium,
oxygenated, nonoxygenated). Thus, in reporting the minimum recommended
concentration(s) for gasoline detergent additives, the additive
manufacturer must also specify the applicable certification option(s)
for each minimum concentration. In addition, if the detergent is also
registered separately for use in leaded gasoline, the applicable
minimum concentration for deposit control in leaded gasoline must be
specified. This amount may be the same as that needed for PFID control
under any certification option (except fuel specific) or, optionally,
the amount demonstrated to be needed for carburetor deposit control.
The information on minimum concentration, as reported in the
detergent registration, must also be accurately communicated by the
additive manufacturer to its customers, i.e., detergent blenders and
secondary additive manufacturers. For protection of all parties
involved in the transaction, this communication must be made in
writing. For example, if a gasoline misadditization were to occur, such
that detergent were added at a concentration less than the required
minimum amount, the detergent manufacturer could potentially be held
liable for the misadditization unless he could demonstrate that proper
blending instructions were provided prior to the additization. These
liability issues are discussed further in Section VIII of this
preamble.
[[Page 35321]]
3. Certification Letter. In addition to satisfying the above
requirements concerning detergent additive composition and recommended
concentration, the additive manufacturer (or other party wishing to
certify the detergent 13) must submit a certification letter to
EPA. The certification letter must include a statement attesting that
the additive has undergone the performance testing required by the
regulations, using the specified test fuels, and has met the deposit
control performance standards required for certification. The statement
must also affirm that the performance tests were conducted in a manner
consistent with sound engineering practices, and that complete
documentation of the test fuel formulation, performance test
procedures, and test results is available for EPA's inspection. In
addition, the letter must provide summary information on the test fuel
composition and source(s), the additive concentration(s) used in
certification testing, the results of the testing, and the lowest
additive concentration (minimum recommended concentration) which the
certifier seeks to establish for each certification option under which
the detergent is to be certified. This is a self-certification process,
with the party providing EPA with information that indicates compliance
with the various requirements. EPA will not issue a certificate, for
example as done in the Federal motor vehicle emissions control program.
---------------------------------------------------------------------------
\13\ For example, in the case of a fuel-specific certification,
the certifying party could be the fuel manufacturer or another party
with title and access to the segregated fuel supply, rather than the
detergent manufacturer. See Section IV.D.
---------------------------------------------------------------------------
The Agency will acknowledge receipt of the certification letter.
The certification date will be the earlier of either the certifier's
receipt of EPA's acknowledgement, or 60 days after EPA's receipt of the
certification letter, as documented by a certified mail receipt. EPA
does not intend routinely to examine the full test documentation, and
will in many cases rely on the certifier's attestations. Neither EPA's
acknowledgement of receipt of the letter or the passage of time
indicates that the certification letter has been reviewed by the Agency
or that a determination has been made regarding whether the
requirements of certification have been satisfied. This is consistent
with the self certification approach adopted in this rule. On a case-
by-case basis, EPA may require that an additive certifier provide the
actual test data to EPA to substantiate the claim of deposit control
effectiveness made in the certification letter. EPA believes that the
declaration by the certifier that a detergent certification meets the
program testing requirements, coupled with the occasional Agency review
of certification test data, should provide reasonable assurance that
the program requirements will in fact be met in the vast majority of
cases.
EPA might request submission of supporting data for a variety of
reasons. For example, the detergent treat rate recommended by an
additive manufacturer under one certification option may seem anomalous
relative to the treat rates recommended for the same additive under
other certification options. Alternatively, the treat rates recommended
by one additive manufacturer may not be consistent with the treat rates
recommended by manufacturers of apparently similar additives. EPA may
also learn from fuel or automobile manufacturers that a particular
detergent product appears to be less effective than others. For these
or other reasons, including random oversight of compliance, EPA may
request that the additive certifier provide some or all of the test
procedure and fuel data required under the regulations. In such a case,
the detergent registrant must provide the supporting data to EPA within
30 days of receipt of the request for such data. If EPA judges the
supporting data to be inadequate (or if it is not received), EPA may
disqualify the subject detergent for use in compliance with the
requirements of this rule (see Sec. 80.161(e)). The detergent additive
manufacturer will be required to provide EPA with a list of its
customers who use the disqualified detergent. EPA shall inform all such
fuel manufacturers and secondary additive manufacturers that the
detergent is no longer eligible for use in complying with Federal
gasoline detergency requirements. In addition, EPA may initiate the
enforcement actions described in Section VIII.
Under the interim program, a disqualification order becomes legally
effective for the additive manufacturer five days after its publication
in the Federal Register. Today's rule provides that under the
certification program a disqualification order will become effective
for the certifier on the date the order is received by the certifier.
The disqualification order will be published in the Federal Register as
under the interim program. However, EPA believes there is no reason to
delay the effective date of a disqualification for the certifier past
the date when the notification is received from EPA. At this point in
the disqualification process, the certifier will have been afforded
ample notice of a disqualification and an opportunity to participate in
the Agency's evaluation of whether the disqualification was
appropriate. Thus, the certifier will have had sufficient opportunity
to prepare to comply with the disqualification order upon its arrival.
If the certifier is also a blender of the disqualified additive, the
certifier must also stop using the ineligible detergent upon receipt of
the disqualification order. As under the interim program, other
blenders affected by the disqualification order will be afforded 45
days from their receipt of a notification from EPA that the detergent
is no longer eligible for use to comply with gasoline detergency
requirements, or 45 days from the publication of such notification in
the Federal Register, which ever is sooner, to discontinue use of the
disqualified detergent and substitute an eligible detergent additive.
B. Information Requirements for Fuel Manufacturers
The NPRM and the interim detergent program recognized that
detergent blenders, as fuel manufacturers (under the existing
definition of a fuel manufacturer in Sec. 79.2(d)), are subject to
standard fuel registration requirements under 40 CFR part 79. These
standard requirements include the identification of any additive
products intended to be used in the registered fuel and the range of
concentration of each such additive in the fuel. The only additional
feature proposed to meet the information requirements for fuel
registration under the detergent program was that the lower boundary of
the range of concentration of detergent additives could be no less than
the minimum recommended concentration specified in the detergent
additive's registration, unless otherwise approved by EPA under special
circumstances.
For reasons not directly related to the detergents program, EPA is
currently considering possible changes to the definition of ``fuel
manufacturer'' in Sec. 79.2(d). If this change is adopted, EPA realizes
that many detergent blenders would no longer be required to submit the
registration information envisioned in the NPRM. However, EPA
experience under the interim program indicates that EPA's monitoring
and enforcement activities regarding the proper use of certified
detergents rely much more on the detergent blenders' additization
accounting records (see Section VIII) than on the up-front registration
information which they would be required to submit. Thus, while this
final rule requires detergent blenders to maintain specific records
concerning
[[Page 35322]]
their additization activities, it does not include any special
registration requirements for detergent blenders, nor for fuel
manufacturers in general.
IV. Certification Options
A. Background
The gasoline produced by the U.S. refining industry is not
homogeneous with respect to the tendency to form deposits. Gasoline
pools with different characteristics occur as a result of different
crude oil sources, refining capabilities and fuel distribution
networks, the octane rating of gasoline provided for different engine
designs, and regulatory programs which control certain parameters in
gasoline sold in polluted urban areas. A study of the relative deposit-
forming severity of these gasoline pools showed that different pools of
gasoline may vary in their deposit forming potential, as reflected by
different distributions in the levels of specified ``severity factors''
(see Section VI). To provide industry the opportunity to optimize the
detergent additization of these various pools while still ensuring the
environmental benefits of the program, EPA proposed detergent
certification options based on the deposit related characteristics of
the various gasoline pools.
The proposed certification options included a nationwide program,
geographical options based on the Petroleum Administration Districts
for Defense (PADDs), oxygenate options because of the variety of
oxygenates which may be blended into gasoline to meet regulatory
requirements or octane specifications, an option for premium gasoline,
and a fuel-specific option for segregated gasoline pools. These options
are all being finalized in today's rule. EPA also proposed an option to
certify detergent additives for use in reformulated gasoline. However,
as discussed in more detail below, the deposit-forming severity of that
pool of gasoline has not yet been sufficiently characterized. Another
proposed option would have allowed detergent additives certified for
California gasoline to be used in all PADD V gasoline, but for the
reasons discussed below in Section V, EPA is not finalizing this
option. Nevertheless, California certifications will be accepted for
demonstrating compliance with the certification requirements of the
Federal program in California (see Section V). A proposed second tier
of detergent certification, to ensure sufficient additization of the
most severe gasolines, is also not finalized today. All these options
and the comments by the public on these options are discussed further
below.
It is important to understand that the choice of a particular
certification option actually represents a choice as to the test fuel
in which a particular detergent will be mixed when it undergoes
certification testing. (Test fuel composition [severity] is an
important element in determining the challenge to a detergent's ability
to control deposits represented by certification testing.) As a result
of such testing, a required minimum treat rate (minimum recommended
concentration or lowest additive concentration) will be established for
the additive when used in the type of gasoline represented by the test
fuel. In other words, the certification of a detergent under a
particular certification option has the result of setting a treat rate
for that detergent in the pool of gasoline covered by the certification
option. To say a detergent has been certified under several options
merely means that the detergent has undergone performance testing in
the context of several different test fuels, each representing a
different option, and that different treat rate requirements have thus
been established for the additive when used in the different gasoline
pools covered by these options. The relationship between certification
options and test fuels is discussed further in Section VI of this
preamble.
These options, when considered together, provide a great deal of
flexibility to the fuel industry for additizing gasoline. Of course, in
each situation, the industry must find the optimal balance between the
costs of additional certification testing and the potential opportunity
to use reduced additive amounts in particular gasoline pools. Based on
the number of oxygenates listed in the discussion on the oxygenates
suboption below, there are over 90 different combinations of
certification options and suboptions. Table #IV-1 summarizes the
categories of options and suboptions.
Table #IV-1.--Options and Suboptions for Certification of Detergent
Additives
------------------------------------------------------------------------
Options Suboptions
------------------------------------------------------------------------
Nationwide Option......................... Generic Certification; *
Oxygenated;
Nonoxygenated;
Oxygenate-Specific;
Premium:
Oxygenated;
Nonoxygenated:
Oxygenate-Specific.
PADD Option for PADDs I, II, III, IV, and Generic Certification;
V Outside California. Oxygenated;
Nonoxygenated;
Oxygenate-Specific;
Premium:
Oxygenated;
Nonoxygenated:
Oxygenate-Specific.
Fuel-specific Option...................... Parallels National and PADD
Specific Certification.
California Equivalency.................... Per CARB Certification.
------------------------------------------------------------------------
* Prescribed test fuel must contain 10% ethanol.
B. Single-Tier Certification System
In the NPRM, EPA proposed two detergent certification tiers. The
first tier would target the deposit control requirements of ``typical''
gasoline, containing relatively moderate levels of specified fuel
severity factors (sulfur, olefins, aromatics, and T-90). The second
tier was proposed as a means for controlling deposit formation from the
most severe gasolines. A gasoline would be identified as ``most
severe'' when at least one of the identified severity factors in the
gasoline was at or above the 95th percentile of the distribution of
measured values for that parameter in gasoline survey data. EPA
proposed the second tier certification because of the concern that
these most severe gasolines might exceed the ability of the detergent
additive, at the concentration required by the first tier, to control
engine deposits at the required level. EPA was particularly concerned
about the possibility that some motorists might consistently choose to
use the same brand of gasoline, which might happen to be the most
severe brand of gasoline available in an area. Used perennially, these
most severe gasolines could exceed an additive's ability to control
deposits and lead to much higher motor vehicle emissions and
driveability problems for those motorists.
As proposed, the additive manufacturers would certify their
additives to the second or more severe tier through the use of test
fuels containing higher concentrations of the gasoline severity
parameters. The expected results would be higher additive treat rate
requirements for the high-severity gasolines. Detergent blenders would
be responsible for testing their gasoline on a weekly or batch-by-batch
basis to characterize the severity of their gasoline using specified
[[Page 35323]]
test methods. Then, if the gasoline exceeded the 95th percentile of the
gasoline severity distribution created from survey data, the fuel
blender would have to additize its gasoline at the concentration
prescribed for the high-severity gasoline pool.
Comments submitted by both the oil and automobile industries were
opposed to the two-tier scheme for additizing gasoline. These comments
and other available information suggest that only rarely will
particular service stations or localities continually be supplied with
only the most severe additized gasoline. More often, the impact of
severe gasolines will be moderated by the consumer's subsequent use of
less severe gasoline. Furthermore, a review of PADD-specific gasoline
survey data suggests that gasoline which may be labeled severe because
of high levels of one or two severity factors may have relatively low
levels of the other severity factors. Thus, the incremental testing,
monitoring, and recordkeeping requirements that would be needed on a
regular basis to address the relatively rare instances in which the
impact of very severe gasoline might be significant and long-lasting do
not seem warranted. EPA concludes that the potential benefits of a
second tier of detergent additive certifications for severe gasolines
are uncertain, and do not justify the incremental costs and burdens.
This final rule, therefore, is based on a single-tier certification
approach. A complete description of the public comments on this issue
and EPA's associated analysis are contained in Section IV of the
Summary and Analysis of Comments document.
C. Geographical Certification Options
1. National Certification. To obtain a national certification, the
certifier must demonstrate a detergent additive's compliance with the
performance standards through testing with specified test fuel(s) based
on characteristics of the national gasoline supply (see Section VI).
The LAC established under a generic national certification option will
be valid for use of the detergent in any type of gasoline, oxygenated
or nonoxygenated, unleaded or leaded, of any octane grade, that is sold
in the United States, including imported gasoline. However, California
fuel marketers should be aware that CARB requires detergents used in
California gasoline to comply with CARB detergent certification
requirements, and that a detergent certified under the Federal program
may or may not also satisfy CARB's certification requirements.
Therefore, parties additizing gasoline for sale in California must
ensure that they are in compliance with both the Federal and CARB
detergent programs (See Section V for the applicability of a CARB
certification in meeting Federal detergent requirements).
The test fuel for the generic national certification option must
contain four specified severity parameters at no less than the 65th
percentile of the national survey data, and must be blended with
ethanol to 10 percent of the final blended volume. As described in more
detail in Section VI, ethanol was chosen for the generic test fuel
because the available data shows that it tends to have a greater impact
on deposit-forming tendency than the other oxygenates. Using different
test fuels, national certification can also be obtained for a variety
of subpools of the national gasoline supply (e.g., oxygenated versus
nonoxygenated, premium, and combinations of these pools). These
suboptions are further discussed below.
EPA proposed the national certification option and suboptions to
provide a broadly applicable method to certify a detergent. EPA
anticipates that many major gasoline marketers will use the national
certification option because of the simplicity of blending one
concentration of detergent additive in all the fuel manufacturers'
gasoline across the nation. In their comments on the proposed rule, the
refining industry supported the national option and stated that most of
its member companies would probably use this option.
2. PADD Certification. As described above, the prescribed additive
treatment levels under the national certification option are based on a
spectrum of nationwide gasolines. As a result, for some pools of
relatively low-severity gasoline distinguished by their geographical
location, the national option may cause more additive to be used than
necessary to maintain the required level of deposit control
performance. Thus, additive costs might tend to be higher than
necessary for those pools of gasoline. EPA's analysis of the
distribution of gasoline severity factors showed that the composition
of gasoline sold tends to differ between the various PADDs of the
United States. This difference probably results from the varying
sources of crude oil and the differences in crude processing
capabilities among the refineries in each PADD, and the relatively
consistent pattern of gasoline production and distribution within the
PADDs.
Given these fuel compositional differences between the PADDs, EPA
proposed, and is now finalizing, detergent additive certification
options applicable to the gasoline sold within each PADD. A PADD
certification can be obtained by demonstrating compliance with the
performance standards through testing on a specified test fuel(s) based
on the characteristics of the gasoline sold in the given PADD. As
summarized in Table #IV-1 above, the PADD certification option
parallels the national certification option in that there are
opportunities for a generic PADD certification or certification under
specified suboptions.
A PADD certification pertains to the additive treat rate
requirements for the gasoline sold to retail outlets, wholesale
purchaser consumers (WPC), or to the ultimate consumer within a PADD,
no matter where the gasoline may have been refined or additized. This
reflects the fact that the PADD certification test fuels are defined
according to survey data of gasoline sold at retail outlets within the
PADD, not gasoline produced or additized within the PADD. For a
detergent blender who commonly distributes detergent-additized gasoline
across PADD lines, and who wishes to have full flexibility as to the
destination of each batch of additized gasoline, a detergent with a
national certification would probably be more appropriate than a
detergent subject to the use restrictions of a PADD certification. Use
of a PADD-certified detergent will be most practical when the
downstream distribution networks from a given blending facility
terminate within a single PADD, or when a detergent blender is willing
and able to implement control systems to ensure that gasoline blended
with a PADD-certified detergent will end up at a retail outlet within
the appropriate PADD.
A PADD V certification is applicable only to the PADD V states
other than California. Accordingly, the required test fuel is based on
gasoline survey data collected from PADD V excluding California. This
is appropriate because California Phase II reformulated gasoline is
expected to be much less severe than gasoline available elsewhere in
PADD V (see Section V).
PADD certifications are likely to be sought only when the
respective certification test fuel specifications will result in a
lower minimum detergent treatment rate requirement than under a
national certification, i.e. for PADDs with less severe gasoline. In
the more severe PADDs, i.e., those in which the gasoline supply tends
to have higher levels of deposit-forming characteristics than the
national supply, the PADD certification test fuel specifications would
result in higher treatment requirements. Thus the national
certification option would likely be
[[Page 35324]]
chosen. This raises a potential concern that gasoline in relatively
severe PADDs might receive inadequate amounts of additive.
For this reason, the generic national test fuels have been designed
to represent greater than average deposit-forming conditions. For
example, as explained in detail in Section VI, this final rule
specifies that each test fuel must contain the fuel severity factors at
no less than the 65th percentile in the respective fuel survey
distribution. Only a very small proportion of the gasoline sold in the
United States contains the combination of all four of the fuel severity
parameters at levels this high or higher. Other approaches for assuring
adequate deposit control in the more severe PADDs were also considered
by EPA in the NPRM. As already discussed above, one option would be to
apply a second level of additization based on severity for national or
PADD certification, which would be triggered by a high level of one or
more severity parameters. For the reasons discussed, this approach was
not followed in this final rule. Under another alternative, the
national certification would be abandoned and only PADD-based
certifications would be allowed. This alternative was not pursued
because EPA judged it would multiply the costs of certification and
recordkeeping without sufficient additional benefit. In a third
alternative, national certification would still be allowed, but the
specifications on national test fuel severity would be increased to
provide additional assurance of adequate stringency for all PADDs. Due
to the wide support expressed for the proposed option in the comments,
the lack of support for these other alternatives, and a desire to limit
certification testing and additization costs to levels that are offset
by concomitant benefits, EPA has decided to finalize the proposed
methods of national and PADD certification, and to omit the
alternatives considered.
EPA believes that the PADD option in conjunction with the national
certification option will give the regulated industry a high degree of
flexibility toward optimizing the amount of detergent additive used in
fungible gasoline while ensuring adequate additization under either
option. The choice for each certifier of what combination of PADD and
national certifications to undertake will be made according to the
characteristics of the certifier's particular refinery, distribution,
or marketing network, weighing the additional cost of certification in
multiple areas against the potential savings (or competitive advantage)
of achieving a lower certified LAC.
3. U.S. Territories. This final rule requires gasoline sold in U.S.
territories to be additized at the concentration required under the
national certification option. In the NPRM, EPA acknowledged that its
information on gasoline severity and distribution networks was
insufficient to propose that a territory may be additized consistent
with the requirements of a particular PADD. Comment was requested on
whether it would be appropriate to include U.S. territories under a
PADD certification option and how territories could be appropriately
assigned to the various PADDs. EPA also requested comment on whether
special circumstances affecting gasoline supply, distribution, or
marketing might make compliance with these rules unreasonably
burdensome in some or all of the territories and whether special
provisions should apply or if these territories should be exempted.
EPA did not receive any response to the request for comments and
has not obtained additional information which would help determine if
the gasoline sold in any of the territories is consistent with any
specific PADD. Thus, the final rule requires gasoline sold in U.S.
territories to be additized with a nationally certified detergent at
the appropriate level.14 This will ensure a high level of deposit
control protection in these territories. In the NPRM, EPA identified
the following U.S. territories: Virgin Islands, Guam, the Commonwealth
of the Northern Marianas Islands, and Puerto Rico. American Samoa was
inadvertently omitted from this list, and is now properly noted as a
U.S. territory and therefore subject to Federal gasoline detergency
requirements.
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\14\ However, this provision of the final rule does not affect
the potential availability of a special exemption for certain
territories under CAA section 325. Section 325 provides that, upon
petition by the respective governor, the Administrator is authorized
to exempt any person or class of persons in certain territories
(Virgin Islands, Guam, Commonwealth of the Northern Marianas
Islands, and American Samoa) from certain requirements under the
CAA, including the gasoline detergency requirements. Such an
exemption may be granted if the Administrator finds that compliance
with a regulatory requirement is not feasible or is unreasonable due
to unique geographical, meteorological, or economic factors within a
given territory, or such other local factors as the Administrator
deems significant. Puerto Rico is not included among the territories
permitted to petition the Agency for an exemption under the
provisions of Section 325.
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4. Certification Sub-Options.
a. Nonoxygenated Gasoline Certification Option. The data presented
in the NPRM on the fuel parameters that impact deposit-forming severity
indicate that the addition of oxygenates such as ethanol and MTBE tends
to increase the amount of additive required to maintain the desired
level of deposit control protection. Thus, the generic certification
approach, based on test fuels containing oxygenate at the maximum
percentage, may lead to overadditization of nonoxygenated gasoline.
Thus, EPA is permitting the separate certification of detergents for
nonoxygenated gasolines, using appropriate nonoxygenated test fuels.
This suboption can be used in conjunction with the national and PADD
options, the fuel-specific option, and the premium fuel suboption.
b. Oxygenate-Specific Certification Option. A generic national or
PADD certification option based on ethanol-blended test fuels may
require higher additive blend concentrations and higher costs than
necessary for gasolines blended with oxygenates other than ethanol.
Thus, EPA is allowing specific certification of additives based on
testing with fuels containing other oxygenates. Examples of such other
oxygenates include ethyl tertiary butyl ether (ETBE), tertiary amyl
methyl ether (TAME), tertiary amyl ethyl ether (TAEE), tertiary hexyl
methyl ether (THME), diisopropyl ether (DIPE), and tert-butyl alcohol
(TBA). Like ethanol, the concentration of these oxygenates in the test
fuels shall be at the maximum concentration allowable in commercial
gasoline. However, while a detergent certified with a test fuel
containing ethanol can be used in gasoline containing any other
oxygenate or no oxygenate, oxygenate-specific certification will be a
use-restricted certification option. For example, the minimum additive
concentration determined through performance testing with MTBE-blended
test gasoline will be applicable only to gasoline blended with MTBE, or
without any oxygenates.
EPA requested comment on the potential benefits, problems, and
costs of either providing for or requiring a separate certification for
oxygenated and nonoxygenated fuels, and on the appropriate specificity
regarding the oxygenate to be used in certification testing. In
particular, EPA requested comment on the potential difficulties and
costs associated with differentiating oxygenated and nonoxygenated
gasolines for enforcement purposes. The oil industry supported the
options to certify additives for use in gasoline containing specific
oxygenates, or for use in gasoline without oxygenates. The ethanol
industry disputed the notion that ethanol is more deposit-forming than
the other oxygenates. In addition, they expressed concern that many
[[Page 35325]]
deposit control additives are not soluble in ethanol, thus restricting
ethanol blender choices for additizing ethanol blends. They further
contended that fuel manufacturers and blenders may not be willing to
continue using ethanol if they are placed at economic risk in case of
disruption in the supply of the appropriate detergent additives
available to them. EPA evaluated the available data on the solubility
of detergent additives in ethanol-gasoline blends and determined that,
even though some detergent additives may not be soluble in pure
ethanol, most (if not all) are soluble in the 10 percent and lower
ethanol blends currently being produced.
The ethanol industry also commented that fuel blenders who blend
ethanol into gasoline would be precluded from doing so if the gasoline
is already blended upstream with a detergent additive that is either
not certified for, or not used in sufficient amount to account for, the
addition of ethanol. This final rule requires incremental additization
when ethanol is added to previously additized gasoline, as proposed,
but to address the ethanol industry's concern, the rule permits a
different detergent to be used than the one already present in the
gasoline. The amount of incremental detergent must be sufficient to
account for the increase in base fuel severity caused by the presence
of ethanol, as well as the detergency requirements of the added ethanol
volume itself. To allow the proper amount to be determined, the newly
added detergent must be one which has been certified both for
nonoxygenated gasoline and for ethanol-blended (generic use) gasoline.
The proper incremental amount can then be computed based on the
different rates required under the two certifications. Additional
discussion of this issue and similar ``cures'' for other use
restrictions can be found in Section VIII of this preamble.
c. Premium Grade Certification Option. An analysis of AAMA fuel
survey data in the NPRM showed that premium gasolines, defined as
having an octane rating of $91 (R+M)/2, tend to have lower olefin
content, sulfur content, and T-90 than regular and intermediate grade
gasolines. Of the four pertinent nonoxygenated fuel parameters, only
aromatic content is higher in the premium grade. This suggests that
premium fuels may require a lower concentration of detergent additive
to maintain the same level of deposit control performance.
Based on these compositional differences, EPA expects that a
separate detergent certification suboption for use in premium gasoline
within the national and PADD certification options would allow the
industry to reduce costs by reducing the amount of additive required.
The oil industry supported the premium suboption in their comments on
the NPRM. Thus, the final rule will allow certification of additives
for use in premium gasoline.
d. Reformulated Gasoline Certification Option. The Federal RFG
regulations (59 FR 7716, February 16, 1994, 40 CFR 80.40) require
changes to gasoline in certain areas where the national ambient air
quality standard for ozone is not being met, and these changes may
potentially affect the deposit forming tendency of these gasolines. The
first phase of the RFG requirements, which took effect January 1, 1995,
is expected to cause a small reduction in some or all of the four
deposit-forming severity factors, although the oxygenate that the
program requires to be blended into RFG could counter the potential
fuel severity benefits. However, the effect of oxygenates must be
considered for all fuels under the detergents program and is therefore
not a particular concern with respect to RFG. Beginning in the year
2000, more stringent RFG fuel reformulation requirements will take
effect, and may result in more substantial reduction in deposit-
formation severity (mainly, a large sulfur reduction).
Anticipating that RFG may cause changes in gasoline severity, EPA
considered including a separate detergent certification option for use
in RFG. In the NPRM, EPA proposed the adoption of either a required or
optional RFG certification option and asked for comments on these
potential options. The oil industry favored a separate RFG option as
long as it was not required. However, EPA recognizes that sufficient
RFG survey data is not yet available for differentiating the deposit-
forming tendency of RFG from conventional gasoline, or from which to
establish test fuel specifications for an RFG test fuel. When
additional data becomes available, the Agency intends to review the RFG
severity parameter levels and compare them to other pools of gasoline.
If a review of the survey data shows that there is indeed a significant
difference in the severity of RFG, EPA may propose an RFG option in a
future rulemaking. In the meantime, additives may be certified with a
separate treat rate for RFG based on a refinery's own segregated RFG
pool using the procedures put into place for the fuel-specific
certification option. Otherwise, additives which are certified under
any geographic option may be used in RFG at the certified treat rate.
5. Recertification Requirements. In the NPRM, EPA discussed a
possible mechanism whereby national or PADD recertification could be
required if the composition of the gasoline pool in question changed
sufficiently to bring the adequacy of deposit control into question.
For this purpose, EPA would monitor trends in the composition of the
respective gasoline pools, and would periodically recalculate the
national and PADD percentile concentration values for the relevant
parameters. A need for recertification would be indicated if the newly
calculated 50th percentile level of any one of the monitored fuel
parameters was greater than or equal to the 60th percentile level in
the original fuel survey data.
However, to require recertification under the national and PADD
certification options would entail the adoption of new test fuel
specifications, which would most appropriately occur through a
subsequent rulemaking. Thus, today's rule does not include any
provisions that would automatically trigger national or PADD-based
recertification requirements. If EPA should determine in the future
that gasoline composition has shifted to such an extent to suggest that
detergents certified pursuant to the test fuel specifications in
today's final rule may no longer provide sufficient deposit control
protection, then EPA will publish a public notice that explores
potential recertification requirements and seeks public comment.
D. Fuel-Specific Certification Option
1. General Description. The fuel-specific certification option
proposed in the NPRM is also being finalized in today's rule. This
option provides fuel and additive manufacturers an opportunity to
tailor certification test fuels and subsequent detergent additive treat
rate requirements to the unique characteristics of segregated pools of
low-severity gasoline. These special gasoline pools may be produced
from inherently mild crude oil or, in other cases, from refinery
practices that reduce the deposit-forming tendency of the gasoline.
Such gasoline may require reduced concentrations of detergent additives
to meet the detergency requirements. Reduced additive concentrations,
when multiplied by the large volume of gasoline that is produced, could
provide a refiner or other fuel manufacturer with a substantial savings
in additive costs. To take advantage of this opportunity, however, the
fuel manufacturer must be able to segregate its special gasoline
pool(s) from the general fuel supply until the gasoline has been
blended with
[[Page 35326]]
the detergent additive specifically certified for use in this fuel.
Once properly additized, the gasoline need not be segregated from other
additized gasoline.
The fuel-specific option requires demonstration of the deposit
control performance standards through testing of a detergent additive
in a test fuel that is representative of the subject segregated
gasoline pool. To determine the composition and characteristics of the
segregated pool, certifiers are required to measure the concentrations
of aromatics, olefins, and sulfur in the gasoline, as well as the T-90
distillation point. These parameters are to be measured at least once
per month over a twelve-month period at each refinery or other facility
contributing to the defined gasoline pool, and a percentile
distribution of these defining characteristics is to be constructed. A
fuel sample, located from within the defined pool or blended from the
refinery blendstocks normally used to manufacture this pool, and
containing each of the parameters at a level no less than the 65th
percentile value of the entire pool, is then required to serve as the
test fuel (see Section VI.B., below, and Sec. 80.164(c)(2)).
Fuel-specific certification is fundamentally different from all
other certification options, in that the precise test fuel
specifications are defined by the certifier (under prescribed
procedures) rather than defined by EPA and codified in the regulations.
Thus, the certifier under the fuel-specific option must be a person who
has access to and control over the subject gasoline supply. Frequently,
this will be the refiner or other fuel manufacturer. EPA anticipates
cooperation between additive and fuel manufacturers in implementing the
fuel-specific option. The additive manufacturer retains responsibility
for (1) the registration of its detergent additive, and (2) proper
labeling of the additive as use restricted. In this instance, however,
it may be the fuel manufacturer, or another party with title to and
access to the segregated fuel supply, who takes responsibility for
certification instead of the detergent manufacturer.
Use of a detergent under the conditions of a fuel-specific
certification is restricted only to the defined pools of gasoline
produced by or distributed from the facilities included in the fuel
composition survey. Furthermore, as described in detail below, the
certification will become invalid if the composition of the subject
gasoline pool changes beyond a prescribed amount.
2. Variants. The fuel-specific option, like all other certification
options, gives registrants the flexibility to certify with non-
oxygenated, oxygenated, and/or oxygenate-specific test fuels. Data
indicates that non-oxygenated fuels have a lower deposit forming
tendency than oxygenated fuels and thus require lower concentrations of
detergent additives to provide deposit control. Furthermore, because
the deposit-forming tendency of oxygenated fuels varies from one
oxygenate to the next, some oxygenated fuels may require a lower
additive concentration than others. As mentioned previously,
substantial savings could result from tailoring the detergent
concentration requirements to the deposit-forming characteristics of
the fuel. Accordingly, fuel manufacturers using the fuel-specific
option may further optimize their detergent use by certifying under one
or more oxygenate-related suboptions. These suboptions are implemented
for fuel-specific certification in the same manner as for national or
PADD certifications.
EPA is also aware that some gasolines have such extremely low
deposit-forming tendencies that they may require only a PFID control
additive or, perhaps in some cases, no detergent additive at all. In
these special situations, certifiers may provide EPA with PFID and IVD
test results under the fuel-specific option to demonstrate that a
deposit control additive is not necessary for deposit control.
3. Monitoring and Recertification Requirements. The certifier under
the fuel-specific option is required to monitor fuel composition on a
monthly basis, and must provide an annual report to the Agency on the
composition of the gasoline covered by the certification and how the
composition deviates from baseline data. Recertification will be
required if the composition of the gasoline pool changes such that the
new 50th percentile concentration of any non-oxygenate fuel parameter
(i.e. aromatics, olefins, sulfur, or T-90) exceeds the 60th percentile
concentration reported in the original certification letter. New
percentiles are calculated on an annual basis using the last 12 months
of data. If the baseline percentile level is exceeded, the detergent
blender will be required to stop using the fuel-specific detergent
until recertification is complete and, in the meantime, must substitute
either a national or appropriate PADD-certified additive within 45 days
of the certification renewal date on which the recertification became
necessary to avoid a violation. The fuel-specific detergent may have
also been certified under the national or PADD certification options.
If so, the same detergent additive may be used at the appropriate
national or PADD-certified treat rate.
V. CARB Certifications
A. Background
Section 211(c)(4)(A) of the Clean Air Act generally prohibits
states from adopting their own state fuel programs to control motor
vehicle emissions, once EPA has regulated a fuel characteristic or
component under 211(c)(1). EPA's adoption of a Federal deposit control
additive program would therefore preempt certain state fuel programs.
However, section 211(c)(4)(B) clarifies that the state of California is
not subject to this prohibition. CARB has in fact implemented a
detergent additive certification program effective January 1, 1992
(Title 13, Section 2257 of the California Code of Regulations). EPA
determined that a CARB detergent certification would provide adequate
demonstration that a detergent could be used to meet Federal detergent
performance requirements under the Federal interim program.15
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\15\ A detailed comparison of the CARB and Federal detergent
programs is included in the Summary and Analysis of Comments.
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To ensure that the CARB detergent program would continue to provide
a level of deposit control protection equivalent to that of the Federal
program, once the Federal certification program was implemented, the
Agency proposed that the applicability of a CARB detergent
certification would be limited to gasolines sold in PADD V. EPA's
judgment that CARB-certified detergents would provide adequate deposit
control performance in all PADD V gasolines was based on the
similarities in the gasoline composition (and hence deposit forming
tendency) between California and the rest of PADD V, and the
similarities between CARB's and the proposed Federal deposit control
performance requirements. EPA proposed that PADD V gasoline additized
with CARB-certified detergents (CARB-based PADD V certification) would
be subject to the same use restrictions as gasoline certified under the
other PADD-specific options.
Public comment was in agreement with EPA that, for California
gasoline, a CARB-certified detergent would provide at least as
effective deposit control as a detergent meeting Federal detergent
certification requirements. However, commenters disagreed with each
other on the extent to which a CARB-certified additive could be used to
satisfy Federal requirements for non-California gasoline. The
automotive industry
[[Page 35327]]
stated that CARB-certified detergents would not provide adequate
deposit control protection for non-California gasolines because of
differences in fuel composition, particularly under CARB's Phase II
reformulated gasoline requirements. Some commenters from the petroleum
industry supported the applicability of a CARB certification within
PADD V, while others stated that a CARB certification should be
applicable nationwide provided that CARB certification fuel parameter
levels meet EPA requirements. Other commenters stated that a CARB
certification should be accepted nationwide in order to avoid the
economic burden on small and independent refiners which would result
from being required to meet two sets of certification requirements.
B. Applicability of CARB Equivalent Certification
To determine the appropriate applicability of the CARB
certification program, EPA compared the level of deposit control
protection which will be provided under the Federal detergent
certification program finalized today to that provided under CARB's
program (see the Summary and Analysis of Comments for an extensive
discussion). In conducting this analysis, EPA compared the performance
standards, test procedures, and test fuels of the two programs, and
concluded that they were sufficiently similar to ensure that the use of
a detergent certified under CARB's current detergent program in
California gasoline will provide at least as effective deposit control
as a detergent meeting Federal certification requirements. However,
implementation of California Phase II RFG requirements has greatly
widened the compositional differences between California and non-
California gasolines. A detergent certified for the relatively low-
severity conditions of California Phase II gasoline can no longer be
expected to provide adequate deposit control in gasoline in the other
PADD V states or elsewhere in the nation. Thus, EPA will accept data
which supports a valid CARB detergent certification as sufficient
demonstration that a detergent additive is capable of satisfying
Federal gasoline detergency performance standards for CARB phase II
RFG, but not for non-California gasolines.
Certain changes proposed by CARB for its detergent program would,
if implemented, serve to make the two certification programs even more
similar. However, if CARB should implement other, unanticipated
changes, then EPA would evaluate whether such changes would reduce the
acceptability of CARB-certified detergents in meeting Federal gasoline
detergency requirements, and would propose changes to these
applicability provisions through another rulemaking if warranted.
To ensure that a CARB-certified detergent is only used to meet
Federal detergency requirements in California phase II RFG, the
gasoline must be additized in California, or sold or dispensed to the
ultimate consumer in California (or to parties who sell or dispense to
the ultimate consumer in California), or both. Some commenters
suggested that EPA should allow CARB-certified detergents to be used in
gasoline sold in all PADDs, provided that the severity parameter levels
in the gasoline did not exceed the severity limits in the CARB
certification. EPA believes this approach is not feasible, since it
would require a complex set of fuel composition monitoring requirements
similar to those proposed under the two-tier certification scheme (see
Section IV.B) which the Agency has determined would not be cost
effective. EPA does not believe that requiring all gasoline sold
outside of California to meet Federal detergent certification
requirements would cause significant financial hardship to smaller
gasoline marketers, as some commenters suggested. The costs to these
marketers of using a CARB-certified detergent would be similar to the
costs of using a Federally certified detergent, and the necessary
infrastructure is likely to exist already in the fuel marketers'
facilities outside of California due to their obligation to comply with
the interim Federal program. EPA believes that use of CARB-certified
detergent additives in non-California gasolines would not provide
adequate deposit control protection. Thus, to allow small gasoline
marketers to use CARB-certified detergents in non-California gasolines
could significantly reduce the emissions control benefits of this
program.
VI. Certification Test Fuels
A. National and PADD Certification Test Fuels
1. Proposed Test Fuel Requirements. Under the proposed
certification test fuel requirements, testing to demonstrate detergent
additive effectiveness would be conducted using test fuels containing
specified levels of five parameters (olefins, sulfur, aromatics, T-90
distillation point, and oxygenate content) that have been shown to
affect gasoline deposit-forming tendency. The minimum levels of these
severity factors in the test fuels proposed for each certification
option corresponded with values at the 55th to 65th percentiles of the
1989-1991 AAMA fuel survey data for the gasoline pool covered by the
certification option in question (e.g., national, PADD, premium, etc.).
EPA also discussed in the NPRM its concerns that the specified
level of these fuel severity factors may not completely define a
gasoline's deposit-forming severity. If this were the case, detergent
certifiers might blend certification test fuels that contained the
required levels of the fuel severity factors, but nevertheless were not
representative of in-use gasoline deposit forming tendency. To help
account for unknown factors in gasoline composition that might affect
fuel severity, EPA proposed that gasoline samples for certification
testing must be drawn from normal production gasoline stock (finished
commercial gasoline) taken from normally operating refinery and/or
terminal facilities. In addition, the test fuels required for each
certification were to be drawn from separate production/distribution
facilities in different areas of the nation. This requirement would
tend to increase the certainty that unknown severity factors would be
represented by ensuring that various refinery stocks were tested, and
would act as a screen to prevent the use of inappropriately mild (i.e.,
low deposit-forming severity) fuels. It would also serve to limit the
opportunity to select test fuels from refineries that, for unidentified
reasons, tend to produce gasoline with a relatively low deposit-forming
tendency. To ensure that the certification process accounts for any
interactive effects between detergent additives and non-detergent
additives, EPA proposed that the type and concentration of non-
detergent additives in the certification fuels must not differ in any
way from the fuels that are dispensed to the ultimate consumer.
EPA recognized in the NPRM that it could be difficult for an
additive certifier to locate a single finished gasoline which contained
all four nonoxygenate severity factors at the required levels. To
reduce this difficulty while ensuring adequate test fuel severity, EPA
proposed that testing for each certification option be conducted using
a matrix of four test fuels, each containing a different combination of
two of the nonoxygenate severity factors at levels no less than the
required 55th to 65th percentile values. Alternatively, additive
certifiers could perform testing in as few as two fuels, as long as
each of the severity parameters was present at the required levels in
at least one such fuel.
[[Page 35328]]
The proposed minimum of two test fuels was believed to be necessary
to account for the deposit-forming tendency of oxygenates. EPA proposed
that one of the test fuels would be required to contain 10 volume
percent ethanol, and another would be required to contain 15 volume
percent MTBE. These oxygenates were selected for testing because they
were expected to have the most significant impact on gasoline deposit-
forming tendency of the oxygenates within their respective oxygenate
classes (alcohols and ethers), and because they were expected to be the
two most widely used oxygenates.
EPA also proposed that certification test fuels be contained in
new, sealed containers during transportation and storage and that these
fuels could be stored no longer than one full year from when they were
drawn from the refinery before testing.
2. Final Test Fuel Requirements.
a. Test Fuel Source and Screening Requirements. In response to the
NPRM, commenters stated that finding finished fuels that met the test
fuel compositional specifications would be extremely burdensome and
impractical, and that EPA should instead allow the use of refinery
blendstocks to formulate certification fuels. To ensure that test fuels
were not inappropriately mild, they stated, test fuel blenders could be
required to provide EPA with documentation of the source and
identification of all of the refinery blendstocks used, as well as the
fuel parameter levels in the finished test fuel. Finally, they stated
that the finished test fuel should be required to conform to ASTM D
4814, for commercial gasolines. In combination, the commenters felt
that this information should alleviate EPA's concern about using
blendstocks for formulating test fuels.
EPA acknowledges that the proposed requirement that test fuels be
drawn from finished gasoline stock is a burdensome one. However, the
ideas raised by the oil industry, while somewhat helpful, are not
sufficient to prevent intentional manipulation of test results, or to
ensure that test fuels will adequately represent the deposit-forming
severity of in-use gasoline.
Thus, in the Reopening Notice, EPA asked for comment on other
potential approaches to ensure the adequacy of test fuels if they were
created from refinery blendstocks (see Summary and Analysis of
Comments), and has finalized one of these approaches in today's rule.
Specifically, the final rule requires that, to be eligible as a test
fuel, a candidate nonoxygenated, unadditized fuel must be tested to
demonstrate its severity by causing the formation of at least a
specified level of IVD in a 10,000 mile BMW test.
In its comments, API stated that increasing the required number of
expensive BMW tests just for this purpose would be cost-ineffective and
unnecessary. However, most other commenters supported EPA's proposed
demonstration test. Some commenters stated that, if a performance
severity test were established, it should be the exclusive requirement
for test fuel qualification, and that fuel parameter requirements
should be dropped. Other commenters stated that if such a test were
established, it should be allowed as an alternative to meeting fuel
parameter requirements in qualifying test fuels for certification
testing purposes.
EPA believes that the performance-based approach for qualifying
test fuels provides a practical and effective way to screen out test
fuels of inappropriately low deposit-forming severity that otherwise
conform to compositional specifications. Thus, this final rule allows
the use of refinery blendstocks for formulating test fuels, provided
that the unadditized test fuel severity is demonstrated by IVD testing.
If test fuels are drawn directly from finished gasolines, they do not
have to undergo severity demonstration testing to qualify for use in
certification tests.
EPA disagrees with the comment that a test fuel deposit
demonstration criterion will not be cost-effective. In the absence of
this assurance, EPA cannot be confident that test fuels created from
refinery blendstocks will be adequate to assure proper additization of
the in-use gasoline to achieve the emission reduction goals of the
detergent certification program. In comparison with the original
proposal, which would have required detergent certification testing to
be conducted in up to four specified test fuels, each to be located
from normal finished fuel supplies, the cost of a single demonstration
test for a batch of test fuel is modest. Furthermore, the costs for
test fuel blending and IVD demonstration testing can be shared. For
example, a testing laboratory can qualify a large quantity of test fuel
and then use it for certifying multiple detergent additives. In these
and other ways, the costs associated with the test fuel IVD
demonstration requirements can be spread over a large number of
detergents or companies. Thus, EPA believes that the test fuel deposit
demonstration requirement is reasonable and necessary, and that it can
be met in a very cost-effective manner.
EPA also disagrees with the comment that certifiers should be given
the option to qualify test fuels either by meeting the requirements of
the IVD demonstration test or by meeting the test fuel compositional
criteria, rather than being required to satisfy both. The fuel
parameter specifications are necessary to set the overall stringency of
the test fuel and to provide reasonable assurance that the composition
of the deposits formed is representative of deposits that result from
in-use gasoline. The deposit demonstration test is necessary to confirm
that the level of stringency prescribed by the fuel parameter
specification has been achieved. Thus, both types of test fuel criteria
are necessary to assure the validity of subsequent detergent
certification testing.
EPA received varied comments regarding an appropriate qualification
standard, i.e., the minimum amount of IVD that the unadditized test
fuel must generate during the demonstration test in order to qualify
for use in detergent certification testing. Suggestions ranged from 175
mg of deposit formation per valve up to 500 mg per valve. To resolve
this issue, EPA reviewed available BMW IVD test data on unadditized
test fuels.16 Tests on gasoline of ``typical'' deposit-forming
tendency, i.e., containing fuel severity factors at generally lower
levels than required in the detergent certification test fuels and more
representative of average severity gasolines, were selected as the
subject of this study. The results of this analysis showed that a
typical unadditized nonoxygenated fuel can generally be expected to
produce approximately 290 mg of deposits over the accumulation of
10,000 miles in a BMW test. Uncertainty in the 5,000 mile test data
precluded EPA from considering a standard based on that shorter
test.17
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\16\ Memorandum to the docket from David Swain, OMS, entitled
``Data Review of Intake Valve Deposit Weights for Detergent
Certification Fuel Screening'', Docket item IV-B-07.
\17\ It should be noted that the 5,000-mile deposit
demonstration test, in addition to its technical shortcomings, would
save only about 25 percent of the cost of a 10,000-mile test.
---------------------------------------------------------------------------
Based on this analysis, the final rule requires the accumulation of
at least 290 mg of IVD using unadditized, nonoxygenated fuel, during
the 10,000 mile BMW test, for qualifying base test fuels for the
national certification option. The same standard will apply to PADD
certifications in those PADDs where the IVD severity factor
distributions tend to be similar to or higher than the national levels
(PADDS I and III). For the other PADDs characterized by fuels which
tend to
[[Page 35329]]
have lower levels of severity factors most related to IVD formation,
the standard is adjusted downward by 10 percent. For the premium
certification test fuels, the standards are reduced an additional 10
percent below the respective all-grade test fuels. Thus, to qualify for
generic certification testing in PADDs II, IV, and V (excluding
California), the unadditized, nonoxygenated test fuels must demonstrate
a minimum accumulation of 260 mg of IVD (i.e., 90 percent of 290 mg) in
a 10,000 mile BMW test. The 260 mg standard also applies to the premium
option at the national level and in PADDs I and III. For the premium
option within PADDs II, IV, and V (excluding California), test fuels
meeting the applicable nonoxygenate fuel parameter levels must
accumulate at least 235 mg of IVD (i.e., 90 percent of 260 mg). These
IVD demonstration criteria are expected to achieve the goal of the IVD
demonstration test while ensuring that the applicable fuel parameter
specifications remain the primary contributor to test fuel severity. At
the discretion of the certifier, the IVD severity demonstration test
may be terminated at fewer than the 10,000 miles specified in the test
procedure. However, the IVD demonstration criteria specified above (for
the 10,000 mile test length) must be satisfied for the test to qualify
for certification purposes. Once the engine has been disassembled to
examine the IVD (other than by removing the fuel injectors for
boroscope inspection) the test must be terminated.
The IVD demonstration is to be conducted on base test fuels, i.e.,
fuels which conform to the specified nonoxygenate severity factor
requirements, but do not contain oxygenate (or detergent). Once
qualified for use in certification testing, a base test fuel can be
blended with ethanol for use as a generic test fuel, and/or with other
oxygenates for use in oxygenate-specific certification testing options.
As suggested by a commenter, the final rule requires test fuels to
conform to ASTM D 4814 specifications.18 To further ensure the
representativeness of test fuels and the composition of deposits, the
rule also requires the certifier to provide to EPA documentation of the
source and identification of all of the refinery blendstocks used, as
well as the fuel parameter levels in the finished test fuel. Consistent
with the proposal, test fuels for national and PADD certification may
not be formulated using refinery blendstocks from a gasoline pool which
has been certified as a fuel-specific pool.
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\18\ ASTM D 4814-95c, ``Standard Specification for Automotive
Spark-Ignition Engine Fuel'', 1995, is incorporated by reference in
40 CFR 80.164.
---------------------------------------------------------------------------
b. Test Fuel Severity Factors. The weight of public comment
supported the proposed five severity parameters (aromatics, sulfur,
olefins, T-90, and oxygenates) identified by EPA to characterize the
severity of gasoline for forming IVD and PFID. As stated above, some
commenters encouraged EPA to include additional severity factors to
these five; however, the information available on these potential
factors was not sufficient to conclude that any other factor would be
appropriate. Some commenters questioned whether these factors should be
considered equal in their severity, especially with respect to their
specific effect on PFID and IVD formation. However, EPA could not find
sufficient information to justify giving more weight to one severity
factor over another for either form of deposit. For these reasons, EPA
is finalizing the detergent certification program based on the five
severity factors weighted equally as proposed.
While the majority of commenters agreed that the impact of
oxygenates should be accounted for in the definition of certification
test fuels, the Renewable Fuels Association (RFA) commented that only
limited test data is available to indicate that a higher detergent
treatment rate may be necessary in oxygenate blends. EPA disagrees.
Data from a number of sources indicates that the addition of
oxygenates, in particular ethanol, has a substantial impact on gasoline
deposit-forming tendency.19 Also, most commenters stated that
testing on fuel containing 10 volume percent ethanol provides a more
difficult test of a detergent's deposit control efficacy than testing
on a fuel that contains 15 volume percent MTBE, and hence EPA should
allow testing on a single ethanol-containing certification fuel.
---------------------------------------------------------------------------
\19\ See the extensive discussion in the NPRM, the memorandum
to the docket entitled ``Data Review of Intake Valve Deposit (IVD)
Weights for Detergents Certification Fuel Screening'', by David
Swain, OMS (Docket item IV-B-07), and the Summary and Analysis of
Comments.
---------------------------------------------------------------------------
Consistent with the weight of available test data and public
comment, ethanol is included in the test fuel specifications related to
each of the generic certification options, i.e., those options which
certify a detergent for use in any oxygenated or nonoxygenated gasoline
in the related PADD-specific or national pool. To ensure representation
of the maximum deposit-forming effects of ethanol (or other oxygenate,
in the case of an oxygenate-specific certification option), additive
certifiers must blend the oxygenate into the test fuel so that its
final concentration is no less than the maximum concentration that the
oxygenate can be used in commercial gasoline. For ethanol this
corresponds to the addition of ethanol so that the final concentration
in the certification test fuel after blending is no less than 10
percent by volume. In the case of MTBE, this corresponds to the
addition of MTBE so that the final concentration in the certification
test fuel after blending is no less than 15 percent by volume.
Oxygenates used for certification testing purposes must be of fuel-
grade quality. The use of oxygenates that are specially processed to
remove impurities is not allowed.
c. Number and Severity of Test Fuels. As mentioned earlier, EPA
proposed in the NPRM that a detergent additive be tested in at least
two, and up to four test fuels, for each certification option selected.
In commenting on the proposal, API, CMA, and others from the petroleum
and detergent additive industries stated that this was unnecessary and
that EPA should allow certification testing to be conducted using a
single test fuel. On the other hand, AAMA stated that requiring more
than one certification test fuel would allow for the inclusion of more
refinery streams in the formulation of certification test fuels,
thereby providing more representative results. Requiring multiple test
fuels would also tend to help ensure that yet-to-be-identified fuel
severity factors are represented in the certification test fuels.
As described above, EPA decided to allow use of test fuels
formulated to the severity factor specifications from refinery
blendstocks as an alternative to using test fuels drawn from finished
commercial fuel supplies. This decision eliminates one of the most
important reasons for which multiple test fuels were originally
proposed, i.e. to ensure that detergents are tested in the presence of
adequately high levels of fuel severity factors, without creating the
impractical requirement that one finished fuel must be found which
happens to contain the specified levels of all the requisite
parameters. In addition, as described above in the section on severity
factors, EPA has determined that testing on ethanol-containing fuel
will suffice to demonstrate a detergent's effectiveness in other
oxygenated fuels, obviating the need for separate tests to be conducted
in the presence of ethanol and MTBE.
Reflecting these changes in the program's requirements, EPA has
further simplified the certification
[[Page 35330]]
testing program by requiring detergent performance testing in only one
test fuel for each certification option selected. Of course, this does
not preclude any additive certifier from performing multiple tests
itself on a variety of test fuels derived from different sources. Such
redundancy would help to ensure that the additive is as effective as
claimed in all the gasolines in the gasoline pool.
Having decided to require one test fuel per certification option,
EPA also reviewed the required levels of test fuel severity factors.
For the NPRM, EPA originally derived the nonoxygenate fuel parameter
specifications for each of the fuels in the proposed test fuel matrices
through a complex process based on ensuring no less than a 1-in-5
chance that a randomly selected commercial fuel would meet the required
fuel parameter levels. As mentioned previously, this process resulted
in proposed fuel parameter levels corresponding to the 55th to 65th
percentile range of concentrations relative to the national gasoline
pool.
Although commenters generally opposed the 20 percent availability
approach EPA used to determine test fuel specifications, there was
broad support for the 65th/55th percentile fuel parameter levels
derived from this approach. EPA believes it is appropriate to require
that each nonoxygenate fuel parameter be represented at its respective
65th percentile level, in the applicable gasoline pool (national, PADD,
premium, etc.). This decision is based on the facts that: (1) test
fuels may now be specially blended so that fuel parameter
specifications no longer need to be linked to fuel sample availability;
(2) there is no conclusive data on which to weight any one fuel
parameter's impact on fuel severity above another's, and (3) the 65th
percentile levels predominated in the originally proposed test fuel
matrix.
The required parameter levels are to be met in the certification
test fuel before the addition of ethanol. EPA analyzed AAMA fuel survey
data, comparing levels of the nonoxygenate fuel parameters in
nonoxygenated fuels to those in oxygenated fuels (all oxygenates
included in the analysis).20 While the results of this study were
not totally consistent, they indicated that the parameter levels in
oxygenated fuels tended to be lower than those in nonoxygenated fuels.
This result suggests a dilution effect when oxygenate is added. Thus,
specifying that the prescribed 65th percentile levels be met in the
test fuel before the addition of the oxygenate appears to conform to
the real-world behavior of in-use fuels.
---------------------------------------------------------------------------
\20\ ``Analysis of Differences in Nonoxygenate Fuel Parameter
Levels in Oxygenated and Nonoxygenated Gasolines: 1992-1994 American
Automobile Manufacturers Association Data'', George Hoffman,
DynCorp/DynTel, Docket item IV-B-08.
---------------------------------------------------------------------------
In its comments, API urged EPA to use test method reproducibility
to establish enforcement tolerances, i.e., levels below the
specifications which would still be considered to be in compliance with
the specifications, for the measurement of test fuel parameters (per
ASTM methods). EPA rejects this approach. As with the approach taken
for the deposit control performance standards, EPA believes that the
required test fuel parameter levels should be absolute minimums which
must be satisfied. Allowing downward variability in meeting test fuel
compositional requirements would compromise the program's emissions
control benefits as would allowing downward variability in meeting
deposit control testing standards.
d. Other Issues. EPA received a number of comments on its proposed
requirement that the non-detergent additives present in certification
fuels must be representative of those used in commercial gasoline. The
petroleum and detergent additives industries stated that it is unlikely
that non-detergent additives affect deposit-forming tendency because
they are present in commercial fuels at very low concentrations. Hence,
they stated that it was not necessary to require that non-detergent
additives be present in certification test fuels.
EPA's chief concerns regarding the additive content of test fuels
are (1) that no detergent-active substances be present in the test fuel
other than those substances which are part of the detergent additive
package being tested, and (2) that the deposit control performance
demonstrated by the detergent package in the test fuel not be adversely
affected by other additives encountered in use. In reviewing this
subject, EPA concluded that it is not practical at this time, nor has a
significant need yet been demonstrated, to require specific
nondetergent additives to be present in certification test fuels. EPA
has also concluded that requiring the identification of nondetergent
additives in the test fuel would not very effectively address EPA's
concerns; moreover, many certifiers would not be able to fully comply
with such a requirement.
Thus, consistent with the views of the commenters, today's rule is
generally not prescriptive with respect to nondetergent additive use in
certification test fuels. Typical nondetergent additives may be, but
are not required to be present in the test fuels. Also, the presence of
such additives does not need to be reported. The addition of detergent-
active substances other than the additive being tested is specifically
prohibited. On the other hand, if EPA subjects a certified detergent to
confirmatory testing, then EPA may include in its test fuel any
nondetergent additive which can reasonably be expected to be
encountered in use. If the performance of the certified detergent is
adversely affected by the presence of such additive, to the extent that
the detergent fails the confirmatory test, then the certification might
be jeopardized (see Sec. 80.161(e) regarding the disqualification of
detergent additives).
The additive industry disagreed with EPA's proposed requirement
that certification test fuels must be contained in new, sealed
containers during storage and transportation, claiming that this
requirement would be infeasible, unreasonable, and expensive, and would
generate a lot of waste. Instead, it said, clean tank trucks should be
adequate for the transport and storage of test fuels. EPA is persuaded
that the use of clean tank trucks or other containers will ensure that
test fuels are not contaminated or otherwise altered in a way that
might bias certification test results, and that requiring the use of
new sealed containers is unnecessary to maintain sample integrity.
Therefore, the certification program requires that certification test
fuels be transported and stored in clean tank trucks or other
containers. In response to EPA's request for data on the affect of fuel
storage on test fuel severity, comments from the additive industry
suggested that the passage of time would tend to increase test fuel
severity due to the effects of fuel oxidation. Therefore, the use of
test fuel which has been stored would tend to make the performance test
more stringent. EPA agrees with these comments. Furthermore, no data is
available to indicate that gasolines may become less severe over time.
Therefore, EPA will not limit the time a test fuel sample may be stored
before certification testing is conducted.
The majority of commenters were in agreement with EPA's proposal to
define test fuel parameter levels based on an analysis of the three
most current years of AAMA fuel survey data. However, several
commenters from the petroleum industry stated that EPA should use
refinery baseline data collected under the Reformulated Gasoline
Program. EPA disagrees with this comment. The RFG baseline data
[[Page 35331]]
pertains to 1990 only. Therefore, it would not provide as current, nor
as representative, a characterization of longer-term trends in fuel
quality as the proposed use of the average of three years of AAMA data.
The analysis presented in the NPRM was based on 1989 through 1991 AAMA
fuel survey data. However, more recent AAMA data is available now.
Thus, consistent with the proposal and the support expressed in the
public comment, the fuel specifications for detergent certification
testing have been updated to reflect the results of the 1992-1994
gasoline AAMA survey data.21
---------------------------------------------------------------------------
\21\ ``Statistical Analysis Methodology: 1992-1994 American
Automobile Manufacturers Association Data'', George Hoffman, CSC,
Docket item IV-B-06.
---------------------------------------------------------------------------
B. Fuel-Specific Certification Test Fuels
Unlike the test fuels described above for certification testing
under the national and PADD options, which are designed to represent
fungible gasolines, EPA proposed that the certification test fuels
under the fuel-specific option would be tailored to represent the
unique deposit-forming tendency of segregated gasoline pools. As
proposed, the additive certifier would have to establish its own test
fuels specific to its gasoline pool. To characterize the severity of
the test fuel, the certifier would use the four nonoxygenate parameters
specified under the national and PADD certification scheme for
nonoxygenated fuels, and would include oxygenate as a severity
parameter if oxygenate was used in the specified gasoline pool.
(Otherwise, the detergent would be restricted to use in non-oxygenated
fuel-specific gasoline.) EPA proposed that, subject to EPA's prior
approval, other parameters could be used in addition to the standard
four or five parameters. In order to use another parameter, EPA
proposed that the certifier of a fuel-specific detergent would submit
test data to EPA to demonstrate that the subject parameter affects the
deposit-forming severity of the segregated gasoline pool for which the
certification is sought. In addition, the applicant would submit a test
method approved by the American Society for Testing and Materials
(ASTM) to measure the additional fuel parameter in finished gasoline.
EPA proposed that the Agency would respond to such requests within 90
days after receiving the test data to support the use of the additional
parameters.
EPA received several comments expressing support for the proposal
to require certifiers of fuel-specific detergent to characterize the
composition of their segregated gasoline pool. Under this final rule,
the certifier must create and maintain fuel survey data from each of
the facilities that contribute to the subject gasoline pool for a
complete year. At a minimum, this data must include monthly
measurements of gasoline aromatics, olefin, and sulfur content, and T-
90 distillation point. The certifier must also calculate and provide to
EPA the percentile concentrations or levels for each of the fuel
parameters studied for the segregated pool as a whole (see
Sec. 80.164(c)). The use of such additional parameters will not require
prior approval by EPA since EPA judged that EPA's prior approval was
not necessary to ensure their proper use. However, to be taken into
account by EPA in case of confirmatory testing (see Section VII.D.),
such additional parameters must be surveyed, analyzed, and reported
according to the same requirements applicable to the four standard
parameters.
Consistent with the certification program's approach for national
and PADD certification test fuels, under this final rule, testing for
generic fuel-specific certification must be conducted using a single
test fuel that has nonoxygenate fuel parameter levels at or above their
respective 65th percentile values for the subject segregated gasoline
pool as determined by the fuel marketer's required fuel survey
analysis. Also paralleling the national and PADD certification options,
a nonoxygenated fuel-specific test fuel may be blended with ethanol (to
a concentration of at least 10 volume percent ethanol in the finished
fuel) to qualify as a test fuel for certifying a detergent for use with
any oxygenate. The requirements for oxygenate-specific fuel-specific
certification test fuels also parallel those under the national and
PADD certification options. Certification fuels used in conducting
testing to demonstrate that either a PFID-only detergent or no
detergent additive are needed to satisfy EPA's IVD/PFID control
requirements must meet the same compositional criteria described above.
No specific comments were received on whether EPA should apply an
IVD demonstration fuel qualification criterion under the fuel-specific
certification option. Gasoline within a given fuel-specific gasoline
pool is likely to be much less variable in composition than fungible
gasoline for several reasons. The sources contributing to a fuel-
specific pool will likely be limited in number and belong to a single
refiner. In addition, refining parameters would be more closely
controlled to maintain the unique composition that defines the
segregated fuel-specific gasoline pool. The fuel composition monitoring
and associated detergent recertification requirements under the fuel-
specific option will act to limit the variability in the composition
(and thus the severity) of such gasoline pools. Thus, under this final
rule, fuel-specific certification test fuels are not required to
satisfy deposit demonstration test requirements.
C. Summary of Test Fuel Requirements
The following table summarizes test fuel compositional requirements
under the different national, PADD, premium, and fuel-specific
certification sub-options.22
---------------------------------------------------------------------------
\22\ See Sec. 80.164 of the regulatory text for specific values
under the different certification options and suboptions. 65th
percentile nonoxygenate fuel parameter levels must be met prior to
the addition of the required oxygenate.
[[Page 35332]]
Table VI-1--Summary of Test Fuel Requirements; Generic Detergent Certification
[For use in any gasoline grade, with any oxygenate]
----------------------------------------------------------------------------------------------------------------
IVD
Nonoxygenate fuel demonstration
Gasoline pool parameters standard Oxygenate/concentration
(mg)
----------------------------------------------------------------------------------------------------------------
National.............................. 65th percentile in 290 10% Ethanol.
national survey.
PADDs I and III....................... ......do................. 290 Do.
PADDs II, IV, and V................... ......do................. 260 Do.
----------------------------------------------------------------------------------------------------------------
Premium Detergent Certification
[For use in premium gasoline, with any oxygenate]
----------------------------------------------------------------------------------------------------------------
IVD
Nonoxygenate fuel Demonstration
Gasoline pool parameters Standard Oxygenate/concentration
(mg)
----------------------------------------------------------------------------------------------------------------
National.............................. 65th percentile in 260 10% Ethanol.
national/premium survey.
PADDs I and III....................... 65th percentile (premium) 260 Do.
in respective PADD.
PADDs II, IV, and V................... ......do................. 235 Do.
----------------------------------------------------------------------------------------------------------------
Nonoxygenate or Oxygenate-Specific Certification
----------------------------------------------------------------------------------------------------------------
Nonoxygenate fuel IVD Demonstration
Gasoline pool parameters standard (mg) Oxygenate/concentration
----------------------------------------------------------------------------------------------------------------
Any Grade:
no oxygenate..................
(1)Same as national or PADD None.................
generic certification shown above
oxy specific.................. Max concentration.
Premium Only:
no oxygenate..................
(1)Same as national or PADD None.................
premium certification shown above
oxy specific.................. Max concentration.
----------------------------------------------------------------------------------------------------------------
Fuel-Specific Certification
----------------------------------------------------------------------------------------------------------------
Nonoxygenate fuel IVD demonstration
Gasoline pool parameters standard (mg) Oxygenate/concentration
----------------------------------------------------------------------------------------------------------------
No Oxygenate.................... 65th percentile in none.............. None.
the specified pool.
Any Oxygenate................... ......do........... ......do.......... 10% Ethanol.
Specific Oxygenate.............. ......do........... ......do.......... Specified oxygenate at maximum conc.
----------------------------------------------------------------------------------------------------------------
* Similar to the national and PADD certification case, fuel-specific certifications may be obtained for all
gasoline grades or for premium gasoline.
Test fuel samples used in IVD and PFID performance testing for a
given detergent must conform to identical qualification criteria, but
need not be drawn from the same batch of gasoline. Likewise, the
samples of the detergent additive package used in the required
certification tests need not be from the same production batch,
provided that both samples conform to the compositional information
provided to EPA by the additive certifier.
D. Test Fuels for Leaded Gasoline Certification
The certification program retains the interim rule's specifications
for leaded gasoline test fuels to allow use of existing test data to
the greatest extent possible. Given the very low level of leaded
gasoline use in the U.S., EPA believes that increasing the stringency
of these test fuels would not result in an environmental benefit that
would compensate for the cost incurred in conducting the additional
testing which would be required.
E. Measurement of Gasoline Fuel Parameters
For the purposes of measuring the fuel parameters which define
certification test fuels, EPA proposed to allow the use of specified
ASTM procedures, as well as other procedures proposed for use under the
RFG program (58 FR 11722, February 26, 1993). This proposal was
expected to allow reasonable flexibility in test procedure selection
while ensuring the needed measurement precision. EPA also wanted to
coordinate testing and compliance requirements across the RFG and
detergent additive rulemakings. To that end, the Agency proposed to
incorporate into the final detergent additive program, as appropriate,
any changes to the fuel parameter measurement procedures finalized in
the RFG program.
Certifiers under the fuel-specific option may use additional fuel
parameters to describe the composition of their segregated gasoline
pools and to
[[Page 35333]]
define the required certification test fuels (see Section VI.B.). EPA
proposed to require that ASTM-approved test procedures be used for
measurement of such additional test fuel parameters under the fuel-
specific certification option.
The RFG regulations, including final versions of the fuel parameter
test requirements, were published by EPA on February 16, 1994 (59 FR
7716). In finalizing these test procedures under the RFG program, the
Agency addressed some of the issues that were also raised in the
context of the public comment on the detergent NPRM.23 For the
reasons discussed under the RFG program Federal Register notice, and in
the interest of maintaining uniformity of fuel parameter testing
requirements between regulatory programs, EPA is adopting the
procedures finalized under the RFG program (40 CFR 80.46) for the
required measurement of levels of sulfur, olefins, aromatics, T90, and
oxygenate content under this final regulation. The use of alternate
test procedures is not allowed except as provided for under the RFG
program. As discussed in the final RFG rule, EPA believes that allowing
the use of additional alternate procedures would result in uncertain
quality and unacceptable variability of test results. EPA is currently
considering modifying 40 CFR 80.46 to update the test procedure for the
measurement of olefins. If such a change is adopted, and if other such
revisions are implemented, they will naturally also apply to the fuel
parameter measurement requirements under this rule.
---------------------------------------------------------------------------
\23\ See the Regulatory Impact Analysis for the Reformulated
Gasoline Final Rule, December 13, 1993, EPA Air Docket A-92-12,
Docket item V-B-01.
---------------------------------------------------------------------------
Because EPA is not finalizing the proposed two-tier certification
scheme with associated terminal fuel parameter monitoring requirements
(see Section IV), the required measurement of fuel parameters will be
limited to that necessary to formulate test fuels and to conduct fuel
survey analysis under the fuel-specific certification option. EPA
believes that restricting the procedures used to measure fuel parameter
levels to those prescribed under the RFG program will not represent an
undue hardship to the industry considering the limited fuel parameter
measurement requirements.
No specific comment was received on EPA's proposal that additional
test fuel parameters which may be used under the fuel-specific
certification option must be measured according to ASTM procedures.
Comment from the petroleum industry generally supported the use of
ASTM-approved methods and any other test methods which may be specified
for use under the reformulated gasoline program for use in measuring
test fuel parameters. Since it is unclear what additional parameters
might be used to define fuel-specific gasoline pools and the fuel
parameters selected may not commonly be measured by industry, EPA now
believes that it may be too restrictive to require to use of only ASTM-
approved procedures. Given this concern, EPA will require that test
procedures used to measure optional fuel parameters under the fuel-
specific option must conform to reasonable and customary standards of
repeatability and reproducibility, and reasonable and customary limits
of detection and accuracy for the type of test procedure in question.
ASTM-approved measurement procedures would conform to this requirement,
as might others that have not received ASTM approval.
VII. Certification Tests and Performance Requirements
A. Certification Test Procedures
In the NPRM, EPA proposed test procedures to evaluate IVD and PFID
control that were based on draft procedures under evaluation by ASTM.
It was also proposed that, if these test procedures were finalized by
ASTM, they would be incorporated by reference in this final rule. This
proposal was supported in the public comment. ASTM has since finalized
their IVD and PFID test procedures with minimal changes from the
earlier drafts proposed by EPA, and the procedures are incorporated in
this final rule.24
---------------------------------------------------------------------------
\24\ ASTM test method D 5598-94, ``Standard Test Method for
Evaluating Unleaded Automotive Spark-Ignition Engine Fuel for
Electronic Port Fuel Injector Fouling'', and ASTM test method D
5500-94, ``Standard Test Method for Evaluation of Unleaded
Automotive Spark-Ignition Engine Fuel for Intake Valve Deposit
Formation'' are incorporated by reference in 40 CFR 80.165(a) and
(b) respectively. ASTM is currently considering revisions to the
test validation criteria for these test procedures to provide more
flexibility (See Docket item IV-E-58). When available from ASTM, EPA
will evaluate the suitability of such revisions, and if appropriate,
might undertake a rulemaking activity regarding their adoption.
---------------------------------------------------------------------------
The IVD and PFID tests adopted by today's notice require an
accumulation of 10,000 miles on a standard test vehicle. EPA proposed
an alternative IVD test which could be conducted using an abbreviated
5,000 mile test cycle. However, EPA has determined that the use of such
a shortened test cycle might result in a significant increase in test
variability. Therefore, EPA will not accept results from this test for
IVD certification testing purposes.25
---------------------------------------------------------------------------
\25\ For similar reasons, EPA will not allow the use of the
abbreviated 5,000 mile IVD test for demonstrating the deposit
forming tendency of unadditized fuels. (See Section VI.A.4.)
---------------------------------------------------------------------------
The Agency is aware that ASTM is developing updated deposit control
test procedures which might be finalized by ASTM shortly after this
rule is published. Several commenters requested that EPA speed adoption
of these procedures when they become available. EPA recognizes that,
because these test procedures would use more current vehicle
technology, they might provide an improved means of determining the IVD
and PFID control requirements of modern vehicles. Therefore, the Agency
is interested in expediting consideration of the adoption of these test
procedures, particularly if they are finalized by ASTM in time to allow
their potential use in meeting initial detergent certification testing
needs. If EPA judges that the updated ASTM procedures are suitable for
regulatory purposes, the Agency will either publish a proposal
requesting comment on their adoption either as alternate or replacement
procedures for the deposit control performance tests adopted by today's
rule, or will publish a direct final rule for this purpose. A necessary
criterion for the adoption of the updated procedures would be the
determination of a correlation of test results from these procedures
with the performance standards of the current procedures, or data that
demonstrates that a specific performance standard for these procedures
provides an appropriate level of deposit control performance.
B. Deposit Control Test Standards
1. PFID-Control Test Standard. For the PFID control test procedure
finalized by today's notice, EPA proposed a performance standard of
less than 5 percent flow loss in any injector over the accumulation of
10,000 miles. Public comment requested that EPA adopt the 10 percent
standard which was widely used by industry to prevent driveability
problems. Commenters stated that the 10 percent standard should be
sufficient to prevent a PFID emissions increase given the stringency of
the PFID test relative to typical in-use driving conditions.
EPA accepted the traditional industry PFID standard of 10 percent
under the interim program to allow maximal use of existing test data.
However, to ensure realization of the potential emission benefits to be
provided by effective deposit control, the proposed 5 percent
[[Page 35334]]
standard is being adopted in the detergent certification program. The
necessity of the more stringent performance standard follows logically
from an understanding of the mechanism by which PFID cause exhaust
emissions to increase. As was reviewed in the NPRM, the most
significant factor appears to be the difference in PFID-related flow
loss between one fuel injector and another.26 Electronic fuel
control equipment onboard the vehicle cannot adjust the air/fuel ratio
for combustion efficiency in each cylinder; rather, it adjusts the air/
fuel mixture in response to the average oxygen level in the exhaust. As
a result, the fuel flow may be suboptimal for every cylinder. Some
cylinders will be overfueled, causing HC and CO emissions to increase
and fuel economy to decrease. In other cylinders, the combustion
mixture will be overly lean, causing a NOX emissions increase.
Furthermore, as the disparity between cylinders rises, the combustion
process in any cylinder will become less and less efficient.
---------------------------------------------------------------------------
\26\ Tupa, R.C., Koehler, D.E., ``Gasoline Port Fuel Injectors--
Keep Clean/Clean up With Additives,'' SAE Technical Series No.
861536.
---------------------------------------------------------------------------
The experience of auto manufacturers indicates that the average
driver will tolerate some degradation in vehicle driveabiliy. When
deposits increase to a level where the flow rate of one or more
injectors is reduced by 10 percent or more, however, combustion
efficiency and vehicle driveability will be impaired to the extent that
driver complaints can be expected.27 Thus, the 10 percent standard
has been the traditional industry norm. However, it is clear that the
efficiency of the combustion process may be significantly affected, and
emission rates increased, well before this point. Because the main
focus of the detergent certification program is the prevention of
emission problems, not driveability problems, EPA believes the 10
percent standard to be inappropriate.
---------------------------------------------------------------------------
\27\ Tupa, R.C. and Dorer, C.J. ``Gasoline and Diesel Fuel
Addditives for Performance/Distribution Quality--II,'' SAE Technical
Series No. 861179.
---------------------------------------------------------------------------
Although emission effects may begin as soon as any PFID begin to
accumulate, a standard of zero percent would obviously not be
reasonable. EPA has chosen instead to harmonize its PFID performance
standard with that of CARB, which implemented the 5 percent standard
under its regulation of detergent additives in January of 1992.
Experience under CARB's program has shown that the 5 percent standard
can be readily achieved using commonly available additive formulations.
Furthermore, as discussed in the NPRM, the application of a 5 percent
rather than a 10 percent PFID standard will usually not be the deciding
factor in controlling the amount of detergent needed to pass the
certification performance test requirements. Rather, in most cases, the
treatment rate required for IVD control will be the controlling factor.
Still, in those instances where PFID control requirements do affect the
treatment rate, the 5 percent standard will offer adequate stringency
to make the test meaningful from an emissions control standpoint.
2. IVD-Control Test Standard. For the IVD test, EPA proposed a
performance standard deposit weight of less than 100 mg-per-valve on
average over the accumulation of 10,000 miles. The public comment
supported adoption of this standard. Also, this is the performance
standard required by CARB. Based on the reasons discussed in the NPRM
and the public's support, EPA is adopting the proposed 100 mg-per-valve
IVD standard in this final rule.
C. Alternate Performance Requirements for Leaded Gasoline
The certification program, like the interim program, allows the use
of either carburetor-type, PFID, or IVD/PFID detergents to comply with
leaded gasoline detergency requirements. The responsibilities of fuel
and detergent manufacturers regarding the requirements for leaded
gasoline are otherwise the same as those described previously for
unleaded gasoline.
D. Confirmatory Testing by EPA
EPA may conduct confirmatory testing on gasoline blended with a
detergent additive to verify that the additive performs as well as or
better than required by the deposit control standards finalized today.
At its discretion, EPA may choose to conduct one or more of the
prescribed vehicle tests on a detergent additive. For this testing, EPA
would blend the additive in the designated test fuel at the minimum
concentration specified by the manufacturer. The severity parameter
levels in the test fuel would be equal to or less than that required
for the respective test fuel. The test fuel may also contain any
mixture of nondetergent gasoline additives found in commercial gasoline
at the concentration normally used. For verification of a CARB-based
certification, EPA would use the applicable CARB test procedures and
standards. EPA would run the IVD and perhaps the PFID ASTM test and a
carburetor test, and if the applicable performance standards were not
met, the certification could be invalidated. (See Section III.A.3. and
Sec. 80.161(e) regarding the disqualification of detergent additives).
The final rule does not include tolerances to allow for test-to-
test variability as requested by some commenters. EPA cannot establish
test tolerances for the same reason ASTM was unable to specify
precision parameters for their IVD and PFID test procedures. A
sufficient amount of repeat tests using these tests is not available.
Certifiers must therefore take into account a reasonable level of
uncertainty in evaluating their test results and reporting the
detergent's LAC. At its discretion, EPA may take such uncertainty into
account when evaluating the results of any confirmatory tests it may
conduct.
VIII. Enforcement Provisions
A. Overview
The enforcement provisions of the detergent certification program
closely track those in effect under the interim detergent program
promulgated on November 1, 1994. Following is a general outline of the
enforcement provisions that will apply in the certification program. In
general, these are the same enforcement provisions that apply under the
current interim program, with certain revisions that make them more
efficient and streamlined. (See section VIII(B) of this preamble for a
discussion of the revisions to the interim rule's enforcement
provisions.) Since the interim program is to continue in effect for
non-certified detergents until the certification program becomes
mandatory (on July 1, 1997 for detergent manufacturers, detergent
blenders, and other upstream parties, and on August 1, 1997 for
gasoline retailers and wholesale-purchaser consumers [WPCs]), revisions
to the interim program's enforcement provisions will apply as of
September 3, 1996. Enforcement provisions that are not revised by
today's rule will continue to apply under both the interim and final
certification programs.
For the convenience of the reader, many of the previously
promulgated provisions that are not being revised in this rule (such as
the core of the prohibited acts, liability, and product transfer
document sections), are nonetheless repeated in the regulations issued
today. It is important to note that this repetition is to make the Code
of Federal Regulations more useable and to avoid confusion. The
repetition of previously promulgated regulatory text is not intended to
be a re-promulgation
[[Page 35335]]
of that text. The only regulatory provisions promulgated today are new
provisions, and the revisions to previously promulgated provisions.
1. Certification Conformity. Effective August 1, 1997, all gasoline
sold or transferred to the ultimate consumer, and effective July 1,
1997, all gasoline sold or transferred to those who sell or transfer to
the ultimate consumer, must be additized with detergent that has been
certified pursuant to the requirements of Sec. 80.161. The detergent
must be present in at least the lowest additive concentration (LAC)
certified to EPA as effective, and in conformity with the use
restrictions of the certification. Prior to July 1, 1997, detergent
manufacturers may choose to certify their detergents in conformity with
Sec. 80.161. Gasoline/PRC additized with such certified detergents must
be additized in compliance with the requirements of Sec. 80.161.
Use restrictions pertain to the type of gasoline product to which
the detergent may be added under a given certification. As previously
described, detergents certified under the national option may be used
with any gasoline (e.g., oxygenated or non-oxygenated, premium or
regular) sold anywhere in the U.S. (subject to approved state
programs). Detergents may also be certified at a different LAC for use
with gasoline sold to the ultimate consumer in a particular PADD.
Detergents certified under the fuel-specific option may only be used
with the segregated gasoline specified in the certification.
Furthermore, within a national, PADD-specific, or fuel-specific
certification, a detergent may be separately certified at a different
LAC for use only with non-oxygenated fuel, for leaded fuel (for nonroad
use only), for fuel blended with a specific oxygenate, and/or for
premium fuel. Finally, detergent certifications based on certification
by the California Air Resources Board (CARB-based detergents), may only
be used with gasoline additized and/or ultimately sold in California.
Under the certification program, detergent in its pure state, i.e.,
prior to its addition to gasoline, must meet the chemical composition
and concentration specifications set forth in its 40 CFR part 79
registration (as is also the case under the interim program rule), and
in its Federal certification.
2. Compliance With Volumetric Additive Reconciliation (VAR)
Requirements. All parties who blend detergent into non-exempted
gasoline, or into components added to gasoline after the refining
process (post-refinery components, or PRC), must complete mandatory
accounting reconciliations establishing that the product was additized
at an actual detergent concentration that was at least equal to the LAC
certified as effective to prevent deposit formation. All additized
gasoline and PRC must be accounted for on VAR records.
Automated detergent blenders must complete these mandatory
reconciliations in consecutive compliance periods, each no greater than
31 days in length. The reconciliation for automated blenders is based
on averaging the additization concentrations over the compliance
period. Today's final rule, like the interim program, does not require
that a per-gallon minimum detergent concentration be attained by
blenders within the averaging period. Hand-blending detergent blenders
must complete the mandatory VAR on a per-batch basis.
VAR reconciliation records (VAR formula records) and VAR supporting
documentation must be maintained by detergent blenders for a five year
period from date of creation.
3. Equipment Calibration. To assure measurement accuracy, under
this final rule, automated additization equipment must be calibrated on
a semiannual basis, and every time the detergent in the storage tank is
changed to one with a different viscosity.
4. Product Transfer Documents. (PTDs). All regulated parties
transferring gasoline, detergent, or additized PRCs (except retailers
and WPCs transferring gasoline to the ultimate consumer) must also
transfer product transfer documents (PTDs) providing necessary
information about additization status, identity of the product, and
identity of the transferring parties. All regulated parties receiving
such product, including retailers and WPCs, must likewise obtain these
documents. Most regulated parties will be required to maintain these
documents for five years. However, WPCs receiving such documentation
for additized gasoline will not have any record maintenance requirement
as to the received documents.
5. Liability and Defenses. As is typical in EPA fuels programs,
presumptive liability will be the cornerstone of compliance assurance
under the certification program. All parties in the relevant gasoline,
detergent, and detergent-additized PRC distribution chain for a
nonconforming product will be presumed liable for detergent program
violations arising from that nonconformity, specifically, violations
involving the sale, transfer, etc. of nonconforming detergent,
nonconforming gasoline, and nonconforming additized PRC, as applicable.
Two exceptions to this general rule exist, however. First, carriers are
only presumptively liable for violations discovered at their own
facilities. For downstream violations, carriers will be deemed liable
only when EPA can prove that they caused the violations. Second, for
VAR violations, expected to be the primary source of violations under
the detergent program, only those parties meeting the definition of
detergent blender for the nonconforming product will be presumptively
liable.
In addition, any regulated parties that EPA can establish caused
VAR violations will be deemed liable for these violations, and branded
refiners will be vicariously liable for any violations, other than
violations of the PTD provisions, found at facilities operating under
the refiner's brand name. Presumptive liability for PTD violations is
imposed under the certification program only on those parties owning,
leasing, operating, controlling, or supervising facilities at which
such violations are found.
All parties subject to presumptive and vicarious liability have the
right to assert an affirmative defense to that liability.
6. Exemptions. As provided in the interim program, racing and
aviation fuel, and detergent and gasoline used for research,
development, and testing purposes, are exempt from the requirements of
the detergent certification rule, provided certain safeguards are met
to ensure the proper use of these exempted fuels. In addition, provided
certain conditions are satisfied, gasoline additized in the state of
California is exempt from the VAR requirements of today's certification
rule, and gasoline sold within California is exempt from the rule's PTD
requirements.
B. Enforcement Aspects of the Certification Program, Including
Clarifications of, and Changes to, the Interim Program
While the enforcement provisions of the certification program
closely track and continue those found in the current interim program,
there are certain important aspects in which EPA is revising its
enforcement provisions, for both the interim and certification program.
The following description of the enforcement program includes
modifications of the interim program. These changes primarily result
from industry queries about the practical implication of certain
provisions of the interim program rule. The Agency provided
implementation guidance on some aspects of the interim rule in
[[Page 35336]]
response to these queries, through the issuance of four Detergent Rule
Question and Answer Documents (Q&A Documents or Q&As). In addition,
some of the statements found in the Q&A Documents were issued by EPA to
address the Agency's implementation concerns that became apparent to
EPA upon initiating its enforcement program. All four Q&A Documents are
available in the docket (items IV-C-08 through IV-C-11). Also available
in the docket is a summary of significant industry implementation
questions that have not been incorporated in a Q&A document (item VI-D-
57).
Since these Q&A Documents do not have the same legal force as a
regulation, the Agency is incorporating these provisions in today's
rule. All of these modifications adopted into today's rule are within
the scope of the proposals found in the NPRM, and are logical
outgrowths of the proposal, typically based on comments in the form of
industry queries. The changes and clarifications mitigate industry
burdens in comparison to the regulatory language found in the current
interim program, while at the same time, maintain the effectiveness of
the Agency's detergent additive enforcement program.
Other changes from the interim program are also discussed below.
These changes were developed from ideas presented in the NPRM, or are
based on proposals raised in the Reopening Notice. The discussion of
these enforcement provisions includes EPA's response to comments
received about the proposals.
1. VAR Requirements. Mandatory VAR procedures are the foundation of
today's certification program, as they have been under the interim
program. All detergent blenders are required to record their actual
detergent concentration attained for a specified compliance period and
compare it with the detergent's applicable certified LAC. If the actual
detergent concentration for the compliance period is equal to or
greater than the LAC, then the blender's detergent concentration rate
is in compliance with the VAR requirements. To help prevent
misadditization, automated detergent blenders are prohibited from
setting their additization equipment at rates below the LAC rate. Hand
blenders are required to calculate VAR compliance for every load of
gasoline or PRC additized, for each detergent used in the load, and
each certified LAC rate used.
a. Automated Detergent Blender Compliance Periods. The interim
program final rule specified that VAR compliance periods for automated
blenders may continue no more than a calendar month, and may not extend
beyond the end of the calendar month in which they are started. The
monthly time period was established because it was considered a
reasonable compromise between industry's desire to average additization
compliance over an extended period, and the Agency's need to ensure an
effective additization level in the actual gasoline dispensed to
consumers. The original proposal in the NPRM was for a weekly VAR
compliance period. After reviewing industry comments to the NPRM
universally requesting VAR periods longer than a week's duration, the
Agency re-evaluated the matter and established the monthly period in
the final interim rule.
It was subsequently brought to the Agency's attention that tying
VAR compliance periods to calendar months was causing operational
problems for some detergent blenders. Blenders claimed that varied
operational procedures and needs made such rigid terminations
difficult. In the Q&A Documents, therefore, EPA relaxed this
requirement and permitted blenders to terminate their monthly VAR
compliance periods on the last working day of the month, or on the
first working day of the next month, etc. (See Q&A Document #2, Q.13,
p.8; and Q&A Document #4, Q.3, p.4.)
One blender suggested a manner of resolving these operational
concerns in a much simpler manner, by structuring the automated blender
monthly compliance periods so that they could last no longer than 31
days, without being restricted to a calendar month. Thus, the problems
involving calendar month terminations would be alleviated. (See Docket
item IV-E-44.)
The Agency agrees that this is a reasonable method of ensuring that
automated VAR compliance periods are no greater than a month, without
forcing regulated parties to conform their operational practices to
rigid calendar month time frames. Therefore, today's final rule adopts
this flexible approach for both the interim and certification programs,
specifying that the automated VAR compliance period must be less than
or equal to 31 days, at the blender's option.
The interim program rule requires that the VAR record identify the
dates of the compliance period, as was proposed in the NPRM. The Agency
has also interpreted this requirement in the Q&A Documents. (See Q&A
Document #2, Q.13, p.8 & 9; and Q&A Document #4, Q.3, p.4 & 5.) Under
this interpretation, if the VAR formula record for a particular
compliance period includes all the additizations occurring within a
certain calendar month, then the VAR formula record need only identify
the month. However, if the compliance period does not include the
entire calendar month, then the blender must indicate on its VAR
records the exact dates and times of the period's beginning and end.
The point of recording such information is to ensure that the VAR time
periods are inclusive of all additizations. Today's final rule includes
these requirements and interpretations for both the interim and
certification programs.
As in the interim program, the certification program requires
termination of the VAR period when an automated blender's additization
equipment concentration rate is increased more than 10 percent over the
original rate. A new reconciliation period must be commenced at that
point. The 10 percent limit was intended to provide industry with some
flexibility in adjusting additization equipment while preventing large
increases in additization rates as compensation for significant under-
additizations. It was not intended to prohibit the use of a temporary
rate change to correct a misadditized batch of gasoline, or to fix a
temporary equipment problem. In Q&A Document #4 (q.5, p.6), EPA
clarified its intent in promulgating this provision and stated that it
would allow temporary rate changes beyond the 10 percent cutoff,
provided that the purpose is to correct a temporary problem involving a
batch misadditization and that documentation about the temporary
correction is maintained.
Today's rule contains the rate change flexibility as introduced in
the Q&A Documents. It also permits rate changes solely intended to
correct an equipment malfunction, provided that any detergent used in
this corrective procedure and not blended with gasoline is subtracted
from the detergent volume totals. Similarly, today's rule provides that
automated blenders may set their equipment's concentration rate lower
than the LAC, provided such alteration is a documented temporary
procedure performed solely to correct a batch misadditization. In the
NPRM, EPA proposed that automated blenders could never set their
equipment lower than the LAC, and the interim rule incorporated this
proposal. However, based on experiences of blenders under the interim
rule, and in the interest of encouraging correction of batch
misadditizations within a VAR compliance period, EPA is including this
exception to the LAC rate minimum in today's final rule.
[[Page 35337]]
b. VAR Formula Records per Detergent Storage System. As proposed in
the NPRM, the interim program requires automated blenders to create a
separate VAR formula record for each detergent storage tank. However,
some blenders expressed concern to the Agency about the rigidity of
this requirement, since their detergent additization systems were fed
by more than one tank or container, and it would thus be difficult to
create separate VAR records for the different tanks. (See Q&A Document
#1, Q.9, p.6.) To address this concern and provide the necessary
operational flexibility for such blenders, the Agency stated that it
would allow VAR records to be based on detergent tank storage systems.
(Q&A Document #1, supra.) Today's final rule formalizes this more
flexible approach.
c. Brands and Grades of Gasoline on VAR Records. As proposed in the
NPRM, the interim rule requires brands and grades of the gasoline
product covered by a VAR formula record to be listed on that record to
ensure identification of the product covered. Detergent blenders
expressed concern about this requirement because brands of product were
not always known and because product identification was available on
supporting records and was thus not necessary on each formula record.
(See Q&A Document #1, Q.17, p.7; and Docket item IV-E-44.)
These concerns prompted an Agency Q&A Document response, specifying
that gasoline brands had to be identified only when known to the
blender. Today's final rule adopts this Q&A provision, and provides
further flexibility by permitting product identification as to brand
and grade to be recorded on supporting documentation. As to gasoline
identification on the VAR formula record itself, detergent blenders
only have to identify, when relevant, that the product is additized
under a customer-controlled proprietary system. This latter requirement
is necessary to alert Agency auditors that a party in addition to the
terminal operator might be liable for VAR violations for this product.
The additional flexibility in these provisions will facilitate VAR
recordkeeping tasks without interfering with the Agency's need for
proper identification of additized product.
d. Recording of Detergent LAC and the Actual Concentration. As
proposed in the NPRM, the interim rule required that the LAC must
appear on the VAR formula record and in detergent manufacturer blending
instructions in units of gallons of detergent per gallons of gasoline.
However, in implementing the detergent registration provisions, the
Agency realized that such a figure would typically contain three zeros
after the decimal point because the amount of detergent being used per
gallon of gasoline is so small. The constant use of such a figure would
be unwieldy and difficult to work with. Therefore, EPA advised blenders
that the LAC would be permitted to be stated in terms of gallons of
detergent per one thousand gallons of gasoline (Docket item IV-C-12).
This more workable LAC identification system is contained in today's
final rule. Further, today's rule requires the LAC to be reported in
relation to the volume of PRC in which the detergent is blended, as
well as gasoline volume, since the effective detergent concentration
depends on the total volume of additized product.
Neither the NPRM nor the interim rule specified the number of
figures to which the blender must express actual detergent
concentration. Pursuant to a request for clarification of the Agency's
intent on this issue (see Q&A Document #1, Q.22, p.9), today's final
rule clarifies that the actual concentration must be expressed to four
figures. This specification is appropriate, given the large volumes
typically encountered.
Today's final rule also specifies that the LAC identified on the
VAR records and in the manufacturers' blending instructions to their
customers must also be expressed to four figures. Neither the NPRM nor
the interim rule specifically addressed this point. Both concentrations
now have to be recorded to the same arithmetic rounding standard. This
will facilitate comparison of the LAC with the blender's actual
detergent concentration, and it also ensures that this information is
standardized on all VAR formula records.
e. VAR Recording of Use-Restricted LACs. Under the interim program,
a detergent can be registered with multiple LACs for use of the
detergent in different types of gasoline. For example, a detergent can
have one LAC for generic product, and another, lower LAC for leaded
gasoline. The generic/leaded distinction retains limited relevance
under today's final rule, because the sale or dispensing of leaded
gasoline for use in nonroad vehicles continues to be permitted even
though the sale or dispensing of such product for use in highway
vehicles was banned as of January 1, 1996.
As previously mentioned in this preamble, there are additional
certification rule situations under which a detergent may be certified
with multiple LACs. As proposed in the NPRM and codified in the interim
program, under the certification program a VAR formula record may
account for the use of only one such certified LAC. Additization based
on a different certified LAC must be recorded on a different record. In
addition, the VAR formula record for a detergent's use-restricted LAC
must state the respective use restriction(s) for the LAC on the VAR
record. This requirement will highlight for the regulated party, and
for the Agency, the specific use for which the detergent is certified,
and will help ensure that gasoline is additized at a proper rate.
f. Diluted Detergent. Under the interim rule, any change in
detergent package composition which changes the LAC requires a new
registration. Thus, a detergent blender could not dilute a detergent
with the marketer's own gasoline in order to make the detergent less
viscous for ease in use in the colder winter months.
Pursuant to a request to permit such detergent dilution, EPA has
allowed such a practice, since it does not make the detergent less
efficient in preventing deposit formation, and it facilitates winter
use of the detergent (Q&A Document #4, Q.1, p.1.). Safeguards are
established under the Q&A to ensure that the use of this procedure does
not result in less effective additization. Blenders using this
procedure are required to use the diluted detergent at an LAC rate that
compensates for the dilution, and they are required to inform EPA of
this usage in writing, prior to the dilution. Today's final rule
codifies this provision allowing lenders to dilute their detergent for
winter handling, thus modifying the strict prohibition against
detergent package LAC variation originally proposed in the NPRM.
g. VAR Recording of Gasoline Which is Overadditized for the
Anticipated Addition of Ethanol or Other PRC. Under the interim
program, excess detergent can initially be added to gasoline to account
for the anticipated later addition of unadditized ethanol or other PRC
to that gasoline. The purpose of such initial overadditization of the
gasoline portion is to ensure that the combined gasoline/PRC product
contains the appropriate detergent concentration.
Neither the NPRM nor the interim program rule specified how this
permitted practice was to be recorded on the VAR formula records. EPA
clarified this matter by the issuance of Q&A Documents which stated
that the Agency expects such a VAR formula record to identify the
volume of gasoline being overadditized, and the anticipated volume of
ethanol/PRC being accounted for. In addition, EPA expects that the
volume of ethanol/PRC being accounted
[[Page 35338]]
for by the gasoline overadditization is to be included in the recorded
final volume of product additized (Q&A Document #1, Attachment 1, p.24-
25; and Q&A Document #2, Q.8, p.7). Such identification on the VAR
record is necessary to highlight that the blender is over-additizing
gasoline in this manner, as well as to ensure that the actual detergent
concentration for the gasoline/PRC blend is sufficient to effectively
control deposit formation.
Today's final rule codifies these VAR recording clarifications
found in the Q&A Documents, so as to make the VAR records reflect the
reality of this specialized overadditization practice. These
clarifications should enable the regulated community and EPA to verify
that this procedure, which was also permitted under the interim rule,
is implemented in an accurate, effective manner.
Today's final rule also extends these PRC-related overadditization
VAR procedures to the hand blender VAR requirements, for the same
reasons they are necessary for automated blenders. This corrects the
Agency's oversight to include them in the interim program's provisions
for hand blenders.
h. VAR Recording of Transfers of Unadditized Gasoline. Under the
interim program, automated detergent blending facilities and terminals
at which hand blending occurs are required to create and maintain VAR
supporting documentation for each transfer of unadditized gasoline from
the facility in the compliance period (for automated blenders), or
monthly (for the hand blending terminals). A record that unadditized
product has left the detergent blending terminal is needed by the
Agency so that the product can be traced, if necessary, to ensure that
it was ultimately properly additized prior to use by the consumer.
Because terminals already are required under the interim program to
maintain product transfer documents for each such transfer, the Agency
stated in Q&A Document #1 (Attachment #1.) that detergent blenders
could indicate on VAR records the total amount of such transfers
occurring either in the VAR compliance period (for the automated
blenders), or during the month (for hand blenders), without indicating
the date, volume, or recipient of each transfer. These total volumes
are to be recorded on the automated blender VAR formula record or the
hand blender monthly record of unadditized transfers. This simplified
approach is codified in today's rule. It streamlines the more
exhaustive recording provision found in the interim rule, while
providing useful notification to the Agency on VAR records of the
transfer of unadditized product from detergent blending terminals.
In requiring detergent blenders to identify on their VAR records
transfers of unadditized gasoline leaving their facilities, neither the
NPRM nor the interim rule considered that this would require refineries
which also happen to be detergent blending terminals to record routine
bulk transfers of unadditized product to other detergent blending
facilities. Such bulk transfers were not the target of this record
requirement because they are not intended for immediate consumer use.
Consequently, pursuant to industry inquiry about this matter, the
Agency stated in Q&A Document #4 (Q.4, p.5.) that it would excuse such
refinery bulk transfers from inclusion in the VAR recording requirement
for transfers of unadditized product. Today's final rule codifies this
exception and extends it to pipelines which also happen to be detergent
blenders and which also regularly make bulk upstream transfers of
unadditized gasoline. The proposal as originally described in the NPRM
has thus been modified to take into account the reality of upstream
bulk transfers of unadditized gasoline which do not warrant the special
VAR attention necessary for downstream transfers of such product.
i. Supporting Documentation of VAR Volumes for Hand Blending
Facilities. As proposed in the NPRM, the interim rule required hand
blending detergent facilities to retain VAR supporting documentation,
specifically, PTDs and bills of lading for all product they receive or
send out. However, the interim rule did not require hand detergent
blenders to maintain documentation supporting their recorded VAR
volumes for gasoline, PRC, and detergent.
Since such documents would obviously be important if the reported
volumes were ever subject to question, EPA has issued guidance that
such data, if available to the hand blender, should be maintained
(Attachment 1 of Q&A Document #1, p.28.). Today's final rule codifies
this requirement for hand blenders.
j. Electronic VAR Formula and Supporting Records. Neither the NPRM
nor the interim program final rule addressed the use of electronic
records to satisfy VAR formula or supporting record requirements.
Pursuant to industry request for approval of electronic records (Docket
VI-D-57.), in Q&A Document #1 (Q.4, p.11) the Agency clarified that the
use of electronic VAR and PTDs complies with the rule, provided that
these records are complete, easily readable, and accessible.
In written discussions with petroleum industry groups, EPA
discussed permitting the use of computer identification codes in lieu
of VAR formula signatures, provided that safeguards of authenticity
would be met (Docket item IV-C-13). Blenders using such ID codes would
be required to maintain a document signed by the VAR record's creator,
acknowledging that the use of this identification code on the record is
equivalent to his/her signature, and must take record security and
access precautions.
Some regulated parties objected to the idea of the Agency placing
conditions on the use of electronic records, asserting that these
records are as reliable as paper records which are not subject to any
additional conditions (Docket items VI-D-59 and VI-D-60).
The Agency disagrees with such comments, and believes that its
enforcement needs justify the establishment of conditions on its
approval of the use of electronic records. If electronic records are to
be used by industry to satisfy detergent rule requirements, EPA needs
to be assured that these electronically generated documents will be
easy to read and easily accessible. If they are encoded or stored in a
manner that makes them unusable by the Agency, the effectiveness of the
detergent enforcement program would be compromised. Therefore, the
Agency is choosing to establish readability and accessibility
requirements for electronic records.
Further, since electronically generated documents can be easily
altered without evidence of such alteration being visible, and because
compliance with the detergent program is determined primarily through
review of the VAR formula records, the Agency needs to ensure that
electronic VAR formula records are stored with access and audit
security. Consequently, the use of electronically created VAR formula
records requires the existence of access and audit security
precautions, including documentation verifying the true identity of
parties identified on these documents only through the use of computer
ID codes.
The final rule promulgated today includes a specific provision
approving the use of electronic VAR records. It thus expands the range
of permissible documents that will be acceptable to satisfy VAR
requirements, while maintaining safeguards necessary for EPA's
enforcement needs.
k. Detergent Tank Transitioning. The interim rule prohibited the
commingling
[[Page 35339]]
of different detergents through provisions prohibiting the supply,
storage, etc. of an unregistered detergent (which commingled different
detergents would be), and the additization of gasoline with an
unregistered detergent. During implementation of the interim program,
the Agency was asked whether a detergent blender could transition from
the use of one detergent to another by adding a new detergent into a
tank that contains the residue of an old, different detergent, even
though some commingling would result (See Q&A Document #1, and Docket
item VI-D-57).
Such detergent tank transitioning process is a common industry
practice and prohibiting it would greatly inconvenience many blenders.
Therefore, EPA believes it is reasonable to permit this practice in
spite of the limited commingling involved. At the same time, the Agency
needs to ensure that protective procedures will be followed which limit
the amount, or effect, of the commingling. EPA is concerned that the
combined detergent may be used at a LAC that would not adequately
additize the gasoline. Further, commingling of detergent would make it
difficult or impossible to confirm the identity of the detergent by
testing, if this should be necessary for enforcement purposes.
If a blender desires to use the same detergent, but at a different
LAC certified for use restricted to a different product, this would not
constitute an actual tank transitioning process. In this instance, the
detergent in the storage tank remains the same and no commingling
occurs. Therefore, in such a situation, the only requirement that
today's rule imposes is that the blender must create separate VAR
formula records for each certified LAC use, identifying the separate
use restrictions, and must use measurement equipment able to accurately
measure the detergent recorded for each record.
For the case of a tank transitioning situation, i.e., where
different detergents are being commingled, EPA issued a response in Q&A
Document #1 (Q.5, p.4) which provided limited approval for such
commingling. Associated procedures ensure proper VAR identification and
usage the proper LAC for the combined detergent. They also encourage
the maximum depletion of the prior detergent in the tank so as to limit
the commingling involved.
Today's final rule follows this Q&A approach by permitting
detergent commingling during legitimate tank transitioning periods,
while requiring necessary procedural and recordkeeping safeguards to
ensure proper VAR identification of the detergents and proper
additization with the commingled detergent. It thus relaxes the total
prohibition against detergent commingling proposed in the NPRM, to
provide industry with the flexibility it needs to execute this standard
tank transitioning procedure.
In addition, today's rule codifies the detergent transitioning
policy, first outlined in Q&A Document #1, supra, under which the
addition of new detergent into a detergent storage tank is specifically
permitted and the combined detergent is treated as if only the new
detergent were in the tank, provided that the tank is drained of the
old detergent to a remaining level no greater than 10 percent of the
tank's newly delivered, commingled volume. This volume includes the
tank's remaining inventory of the residue detergent, plus the newly
delivered detergent.
This 10 percent cutoff figure creates an incentive to detergent
blenders to reduce the amount of actual commingling involved in their
detergent transitioning. The Agency has chosen this figure because EPA
judges this small amount of residual detergent to be inconsequential
enough to minimize concern about the use of an inappropriate LAC for
the combined mixture. At the same time, it is large enough to
accommodate blender need for flexibility in tank drainage procedures.
Furthermore, the drained detergent can be re-delivered into storage
tanks containing the new detergent, provided that the re-delivered
detergent comprises no greater than 10 percent of the tank's total
commingled delivered volume. The Agency believes it is appropriate to
allow this particular commingling procedure because it eliminates the
need for blenders to dispose of the previous detergent.
If both detergents have the same LAC, today's final rule permits
blenders to drain their detergent tanks (and/or redeliver old
detergent) so that the old detergent makes up no greater than 20
percent of the total newly delivered volume without following
additional procedures. In such situations, there is no risk of blender
confusion as to what LAC applies, so greater flexibility is warranted
than for those situations in which the detergent LACs are different.
Finally, today's rule establishes provisions that will apply when
two detergents being commingled in tank transitioning situations have
different certification use restrictions. Neither the NPRM nor the
interim program specifically addressed this matter, and no comments on
this topic were received by EPA. When two separately certified
detergents are being commingled, the rule establishes that the original
detergent's use restrictions no longer apply, while the use
restrictions for the new detergent must be followed. The Agency
believes that this procedure is appropriate, practical, and easy to
follow, provided the transitioning steps discussed above are followed.
Under these steps, a blender commingling 10 percent or less of the
original detergent would essentially disregard the carry-over of the
original detergent, and follow the LAC and use restrictions of the
newly added detergent.
In situations where a blender commingles in the detergent tank a
residue of more than 10 percent of the original detergent which has a
different LAC than the new detergent, the blender is required by the
transitioning procedures to use the higher LAC of the two detergents
until an amount of detergent is used up which is equal to that of the
original detergent remaining in the tank at the time of the new
detergent's delivery. The use of the higher LAC should ensure that the
commingled detergent will be effective in the fuel for which either
detergent was certified. Therefore, the blender is allowed to use that
higher LAC with the new detergent's use restrictions, and to disregard
the original detergent's use restrictions.
Each of the permitted tank transitioning procedures described above
must be documented, either on the VAR record or in supporting
documentation. Documentation of the detergent commingling will be
useful to EPA if enforcement testing of the detergent is contemplated
by the Agency.
l. Automated Additization Equipment Calibration. The interim rule
required automated detergent blenders to calibrate their additization
equipment each time they change their detergent package and at the
beginning of each calendar quarter. The purpose of this regulatory
requirement was to ensure the accuracy of the volume numbers recorded
on the VAR forms by confirming the measuring accuracy of the equipment
generating those numbers. Today's certification rule somewhat eases
these calibration requirements in response to comments from detergent
blenders that these requirements were unnecessarily severe.
Industry's initial implementation concern was that it would be
impossible to fulfill the requirement that every blender's quarterly
calibration had to be performed in the first month of each quarter (See
Docket item IV-E-45). To reduce this burden, the Agency issued a Q&A
Document stating that blenders
[[Page 35340]]
could perform the required quarterly calibration in any month within a
calendar quarter, provided that the quarterly calibrations occurred no
later than three months from the previous calibration (Q&A Document #1,
Q.12, p.6.).
As a further concern about quarterly calibration, API and NPRA
commented, in response to Agency inquiry, that the quarterly
requirement was, itself, too severe. API suggested that an annual
calibration requirement would be more appropriate, while NPRA asserted
that calibration information should only be asserted as an affirmative
defense element. (Docket items IV-C-14, VI-D-58, VI-D-61, VI-D-62, VI-
D-63, and VI-D-64.) API further asserted that parties performing
additive reconciliations on a daily or weekly basis, i.e., more
frequently than the required monthly reconciliations, would be assuring
the accuracy of their monthly VAR volumes as effectively as those
parties performing quarterly calibrations. Therefore, for such parties,
API believed an annual calibration requirement would be sufficient.
However, EPA received conflicting information from a representative
of an additization equipment company (Docket items IV-E-46 and VI-D-
65). This party asserted that merely performing reconciliations at a
greater frequency, while not addressing the real issue of the
equipment's measurement accuracy, would not result in improved accuracy
of the VAR records. According to this commenter, if the amount of
detergent being injected per recorded pulse happens to change while the
equipment continues recording the same pulses as before, the mere fact
that a blender increases the frequency of reviewing the recorded pulses
will not ensure that the blender discovers the measurement accuracy
problem. This commenter suggested that the only way to address this
concern is to actually recalibrate the equipment.
The Agency agrees that merely increasing the frequency of VAR
reconciliations does not necessarily ensure measurement accuracy, and
that periodic additization equipment calibrations are thus essential.
Under similar reasoning, the Agency rejects the suggestion that
periodic calibrations should merely be asserted as part of an
affirmative defense. If a blender does not calibrate its equipment
regularly, the fact that its additizations are inaccurate may never be
known.
However, it is also apparent that quarterly calibrations are
burdensome to some facilities, without necessarily providing
commensurate benefits. Therefore, today's final rule requires that
automated detergent blenders perform at least two equipment
calibrations per year. To ensure that the calibrations will be
reasonably spaced throughout the year, the rule also specifies that
these procedures are to be conducted within each calendar half year,
but at least one hundred and twenty days apart. This modified approach
will reduce the equipment calibration burden to industry, while also
satisfying the Agency's need for regular verification of VAR volume
accuracy.
As additional input on the calibration issue, API commented that it
was not technically necessary or useful to recalibrate additization
equipment every time a detergent package was changed. API stated that
merely changing a detergent package, in itself, would not affect
equipment measurement accuracy. On this point, the equipment
manufacturer commenter indicated that if detergent viscosity changes
due to a detergent package change, the amount of detergent being
injected per recorded pulse would change. A new calibration of the
recording equipment would thus be necessary to ensure that the recorded
measurements were still accurate.
The Agency agrees that re-calibration is necessary only when the
viscosity of the new package is different from that of the previous
package. Thus, today's final rule requires that equipment recalibration
must be performed each time the detergent package is changed, unless
written documentation indicates that the new detergent package has the
same viscosity as the previous detergent package. To provide additional
flexibility, today's rule permits a calibration performed to fulfill
the package change requirement to serve also as compliance with the
semi-annual calibration requirement, provided that the package change
calibration satisfies the associated spacing requirements. The Agency
believes that these modifications to the proposed calibration
requirements will assure VAR measurement accuracy while minimizing
industry quality control burdens.
m. Detergent Blender Record Retention. The interim program rule
requires detergent blenders to provide EPA with all VAR formula and
supporting records upon request. EPA had proposed that the records be
maintained at the place of creation, but the interim rule did not
include this requirement. The interim program also did not specify the
manner in which these records were to be provided.
Several detergent blending terminals requested clarification of
EPA's expectations under the interim program concerning document
provision at the time of inspection. (See Q&A Document #1, Q.24 and 25,
p. 9 and 10 respectively; and Docket item VI-D-57.) The Agency
responded that terminals were not expected to store all the required
documentation on site (Q&A Document #1, supra.). The Agency also stated
that detergent blenders were expected to provide EPA inspectors with
six months of VAR formula and supporting records (including PTDs)
within one hour of request, with the remaining requested documents to
be provided by the next business day. The Agency believed that this
time frame for record review would provide EPA with the ability to
quickly review a moderate amount of records, but would not burden
respondents with the need to provide immediately the full five years of
documents which they are required to maintain.
However, EPA's experience in implementing the interim program has
revealed that the Agency needs immediate access to VAR formula records
for a time span greater than six months. Detergent program violations
are not typically discovered through pre-arranged, exhaustive record
audits like those conducted under the RFG baseline audit program.
Instead, detergent program violations are primarily discovered through
on-site inspection review of VAR formula records. These inspections
typically occur during unannounced and expedited terminal inspections
to determine compliance with a variety of EPA fuels programs. Such
inspections are usually completed in several hours and typically do not
extend beyond the day of the initial inspection contact.
Therefore, EPA needs the immediate availability at inspection sites
of a long enough period of VAR formula records to give a clear picture
of a facility's compliance performance. EPA considers one year of VAR
formula records to be the minimum time frame within which EPA can
determine the facility's compliance, so that immediate access to at
least that period of VAR formula records is essential for effective
detergent program enforcement. Since VAR formula records are typically
only one or two pages in length per reconciliation, retention of this
small amount of documentation should not be unduly burdensome.
Today's final rule requires automated detergent blenders and hand
blending terminals to provide the preceding year's VAR formula records
within one hour of a request by EPA personnel. The remainder must be
supplied by the start of the next business day, or later if approved by
EPA. In the case of VAR
[[Page 35341]]
supporting records, only the preceding two month's records need be
immediately available.
For non-terminal hand blenders, only the prior two months VAR
formula and supporting records must be made available within one hour
of EPA's request. Since these blenders are required to create VAR
formula records for each batch of fuel they blend, they typically
create many more VAR formula records per month than automatic blenders,
and thus more records will be available for EPA review. Further, since
such blenders are typically small businesses with little storage space,
EPA believes it would not be appropriate to impose on them the same
record provision burdens as on the larger, terminal blenders.
Today's certification rule (at Secs. 80.157(g) and 80.170(g)) also
clarifies that ``immediate provision'' of the required records means
that the records should be provided within an hour of request, or later
with EPA approval. Such flexibility permits records to be stored on
site, or to be transmitted, electronically or by other means, from any
other location of the party's choice. Furthermore, if any blender can
establish by documentation that its VAR supporting records are either
centrally maintained at another location, or maintained at an
alternative location by a terminal customer operating its own
proprietary detergent system, then that blender does not have to
provide VAR supporting records until the start of the following
business day, instead of within an hour.
2. Affirmative Defense and Liability Issues. The affirmative
defense and liability provisions of the certification program are a
continuation of, and are substantially the same as, those promulgated
by the interim rule. Immediately following is an analysis of the
certification program's affirmative defense provisions. Significant
differences from the interim program are discussed thereafter.
The certification program gives all parties which are subject to
presumptive and vicarious liability the right to assert an affirmative
defense to that liability. In general, such parties must establish that
they did not cause the violation. In addition, they must provide
applicable PTD(s) meeting the requirements of Sec. 80.171 for the
product in violation, documenting that the product satisfied all
requirements of this program when it left their control.
Specific parties have additional requirements to establish an
affirmative defense:
Branded refiners are subject to vicarious liability for product
nonconformity violations involving gasoline, detergent, and detergent-
additized PRC, as well as for VAR violations, that occur at branded
facilities, i.e., facilities which operate under the corporate, trade,
or brand name of the refiner or any of its marketing subsidiaries. In
addition to establishing the lack of causation and the PTD elements of
a presumptive liability affirmative defense, branded refiners are also
required to establish either of two additional elements to avoid
vicarious liability for a violation. They must either establish that
the violation was caused by sabotage or in violation of law, or that
the violation occurred despite the existence of a contractual
obligation designed to prevent it, where such obligation was monitored
by an appropriate oversight program including periodic review of PTDs
to ensure contractual compliance. These requirements are the same as
those that currently apply under the interim program.
Detergent blenders, as the parties with the most control over
proper additization, have to demonstrate additional affirmative defense
elements to avoid presumptive liability for detergent rule violations.
In addition to lack of causation and PTD compliance, detergent blenders
must have a quality assurance program to ensure proper additization of
the product they additize. The quality assurance program must include
periodic review of their PTD and volume measurement records to ensure
the accuracy of the blender's PTD and VAR records. Further, a detergent
blender asserting an affirmative defense must establish the receipt (or
provision, as appropriate) of accurate written blending instructions
prior to the blending of the detergent into the nonconforming gasoline
or PRC. These affirmative defense elements are essentially the same as,
and are a continuation of, those found under the interim program.
Detergent manufacturers are subject to presumptive liability for
non-VAR related detergent, gasoline, and detergent-additized PRC
nonconformity violations. As the parties controlling the production of
the detergent, the detergent manufacturers must make specific showings
to establish an affirmative defense to such liability. (See the
following subsection for an analysis of changes to detergent
manufacturer affirmative defense requirements under today's rule.)
Detergent manufacturers are also subject to liability for any
detergent, gasoline or PRC nonconformity violations, or VAR violations,
which EPA can establish they caused.
Carriers of gasoline or detergent are the last parties with
different liability and affirmative defense elements under the
detergent program. Since these parties do not take title to the product
they transfer, carriers have less incentive (although not necessarily
less ability) to cause violations. Therefore, like the interim
detergent program and other EPA fuels programs, carriers are
presumptively liable under the certification program only for the
detergent program violations found at their facilities. They are,
however, also subject to liability for non-PTD detergent program
violations discovered downstream from them, provided that EPA can
establish they caused the violations.
a. Detergent Manufacturer Affirmative Defense Modification. In the
NPRM, EPA proposed that, in order to successfully establish an
affirmative defense to presumptive liability, a detergent manufacturer
would have to establish the two standard defense elements (i.e., lack
of causation and complying PTDs), as well as the existence of test
results confirming that the detergent in question conformed to
compositional specifications when it left the manufacturer's control.
Detergent manufacturers commented that these proposed additional
requirements were unfair, because their actual ability to cause
gasoline nonconformity violations was limited. The proposed
requirements were thus modified in the interim rule. Under the interim
rule, to successfully assert an affirmative defense to presumptive
liability for non-VAR product nonconformity violations, a detergent
manufacturer was required to establish that it did not cause the
violation. Instead, it had to demonstrate or furnish: (1) That it
provided timely and accurate written blending instructions to its
customer, (2) a detergent PTD, meeting the requirements of Sec. 80.158,
showing product compliance when the detergent left the manufacturer's
control, and (3) accurate test results establishing that the product
was in compliance with its registration specifications at the time the
manufacturer transferred the detergent.
In subsequent discussions with EPA, CMA objected to the interim
rule's affirmative defense requirement that relatively sophisticated
test results be available on each batch to establish its chemical
conformity to registration specifications (see Docket item IV-E-41).
CMA maintained that conducting such tests on each batch of detergent
was unnecessary and prohibitively expensive. Instead, for quality
control purposes, detergent manufacturers
[[Page 35342]]
typically monitor the quality of the reagents which are input to the
production process, and then test each produced batch to ascertain that
it meets relevant physical property specifications. CMA contended that
these same measures would be adequate to show that a questioned batch
of detergent did meet its registration specifications.
In establishing the interim rule requirement for relatively
rigorous analytical test results as an affirmative defense element,
EPA's intent was to ensure that the detergent manufacturer would be
prepared to supply scientifically defensible, objective evidence that
the detergent component of a product was consistent with its registered
compositional specifications when it left the manufacturer's control.
However, EPA is persuaded by its discussions with the industry that
alternative approaches, more consistent with the industry's normal
production practices, can also be used to fulfill these objectives
adequately.
EPA acknowledges that a requirement to perform an FTIR 28
routinely on every production batch, in case it might be needed in the
future for affirmative defense to presumptive liability, might be
overly burdensome for some manufacturers. Thus, EPA is making
alternative provisions available which manufacturers may choose to
follow for affirmative defense purposes. If EPA informs the detergent
manufacturer of the possible existence of a violation for which the
manufacturer may be presumptively liable within one year of the
production of the detergent batch involved, then FTIR results are
required for that batch. However, the manufacturer need not have
conducted the FTIR procedure on the batch at the time of production.
Instead, the manufacturer may choose to retain a sample of each
detergent batch when it is produced, and to store it for at least a
year in case it becomes a component of a product thought to be in
violation of this rule. In that instance, the manufacturer would
conduct the FTIR analysis on the retained sample of the batch involved.
Whether the FTIR analysis was done at the time the batch was produced,
or performed as needed on a retained sample of the batch, EPA would
compare the results with the FTIR submitted at time of certification,
to determine whether, in its judgement, the composition of the
production detergent batch was in reasonable conformity with the
certified detergent product.
---------------------------------------------------------------------------
\28\ Under the interim program, the test may be an FTIR-based
analysis or other procedure which can qualitatively and
quantitatively identify each component of the detergent additive
package (Sec. 80.141(f)). Under the certification program, an FTIR
analysis is required (Sec. 80.162(d)).
---------------------------------------------------------------------------
If the manufacturer receives notification from EPA of possible
presumptive liability concerning a detergent batch that was produced
more than a year previously, the manufacturer has additional choices
for the affirmative defense showing. The manufacturer still has the
option to provide an FTIR on the batch (either taken a time of
production or on a retained sample), as would be required if the batch
had been produced less than one year ago. However, EPA understands that
shelf life restrictions may become a factor for some detergents after a
year or more of sample storage time. Thus, in lieu of an FTIR, the
manufacturer may choose to rely on the following two affirmative
defense requirements: (1) Documentation that the reagents used to
synthesize the batch were the same in identity and quality as those
specified in the certification, and (2) documentation that relevant
physical properties of the batch fell within the range established in
the detergent's certification (see section III.A.1 of this preamble).
b. Extension of Liability for VAR Violations. Under the interim
program, only detergent blenders are subject to presumptive liability
for VAR violations. Because detergent blenders were the only parties
required to perform VAR reconciliations, it appeared logical that they
should be the only parties liable for violations involving such
reconciliations.
The Agency has become convinced, however, that parties other than
detergent blenders can cause VAR violations, even if such other parties
do not conduct the VAR reconciliations. For example, such parties can
provide erroneous instructions to the detergent blender about detergent
concentration rates or use restrictions. Conceivably, parties could
also conspire with the detergent blender to transfer competitively low-
priced unadditized or misadditized gasoline.
Therefore, in the Reopening Notice, EPA proposed extending
presumptive liability for VAR violations to other regulated parties in
the gasoline and detergent distribution chains. In the alternative, EPA
proposed maintaining presumptive liability for VAR violations solely
for detergent blenders, but extending liability to any regulated party
whom EPA could show actually caused a VAR violation. This option was
proposed with a new requirement that parties in the detergent
distribution system would have an affirmative duty to provide accurate,
written blending instructions for the detergent (59 FR 66872).
Most commenters on this issue disagreed with the Agency's proposal
to extend presumptive liability for VAR violations to additional
parties, asserting that EPA should be able to effectively enforce the
VAR requirements with the liability scheme currently in effect under
the interim program rule. These commenters also argued that detergent
blenders are the only parties who could reasonably be held responsible
for their own VAR violations. However, two commenters stated that
parties other than detergent blenders could cause VAR violations, and
should therefore also be subject to presumptive liability for such
violations.
Few parties commented specifically about the alternative proposal
to impose an affirmative duty on parties to provide accurate detergent
blending instructions. One commenter agreed with the idea, provided
that this requirement would take the place of extending presumptive
liability for VAR violations to additional parties. A second commenter
opposed the proposal, basing its opposition on the idea that a new
affirmative duty was not necessary in the detergent program. Other
commenters asserted that, in general, no new enforcement provisions
were warranted at this point in the detergent program.
EPA agrees with the majority of commenters that most VAR violations
will be caused by detergent blenders. Therefore, the Agency agrees that
extending presumptive liability to parties other than detergent
blenders would be inappropriate. However, since other regulated parties
in addition to detergent blenders clearly do have some capacity to
cause VAR violations, today's rule does extend liability for VAR
violations to those regulated parties that EPA shows caused such
violations.
Today's final rule does not impose a new affirmative duty on
parties in the detergent distribution system to provide their customers
accurate detergent blending instructions. It is obviously important to
the effectiveness of the detergent program that detergent blenders
receive accurate blending instructions. However, EPA's experience
enforcing the detergent program has shown the effectiveness of the
existing affirmative defense requirements concerning blending
instructions, i.e., the reciprocal affirmative defense requirements of
the detergent manufacturer and the detergent blender, respectively, to
provide and receive accurate, written
[[Page 35343]]
blending instructions. This experience indicates that the added
imposition of an affirmative obligation (in addition to the affirmative
defense element) to provide such instructions is not necessary.
c. Defense Against Liability Where More Than One Party May Be
Liable for VAR Violations.
As proposed in the NPRM, both the interim program and the
certification program provide that multiple parties may be subject to
liability for the same VAR violations. This possibility exists for
several reasons: Multiple parties may fit the definition of detergent
blender; several regulated parties may have caused the VAR violations;
and branded refiners may be vicariously liable for another party's
violations if a VAR violation occurs at a branded facility, including a
detergent storage system, operating under the corporate, trade, or
brand name of that branded refiner.
Many commenters suggested that liability for VAR violations should
be limited by the terms of contracts that the parties themselves have
created concerning additization of gasoline. These commenters stated
that detergent additization is often carried out pursuant to the terms
of such contracts which dictate responsibilities between the parties,
and which should be respected by the Agency.
As EPA stated in the preamble to the interim program rule, the
Agency is not required to base its own determination of liability for
violations on the consensual agreements created by potential violators.
However, the Agency may consider the division of responsibilities
contractually established between the parties when deciding whom it
will prosecute for violations.
It is the Agency's policy that: if such division of
responsibilities is established by a written contract; if the parties
not assuming responsibility have implemented reasonable contractual
oversight procedures to ensure that the assuming party has fulfilled
its responsibilities; if the assuming party is fiscally sound and
capable of paying the penalty for failure to comply with the VAR
requirements; and if the non-assuming parties have not otherwise caused
the VAR violation; then, it is appropriate for the non-assuming parties
to avoid liability for a VAR violation.
The Agency believes that contractual arrangements meeting these
criteria provide reasonable assurance that the assuming party is
responsible for the VAR requirements and has the financial ability to
pay penalties if it fails to adequately meet these requirements.
Therefore, EPA does not believe that compliance with the detergent
program will be compromised if parties are permitted to assert reliance
on such contracts as a defense to the imposition of multiple liability
for VAR violations.
Consequently, today's final rule provides that parties subject to
liability for VAR violations may successfully assert an affirmative
defense to such liability, provided that the elements described above
are satisfied. This defense cannot be used, however, to avoid
imposition of liability related to a detergent blender's failure to
provide VAR records upon EPA request, as required pursuant to
Sec. 80.170(g). As previously mentioned, the Agency needs to review
certain limited, but essential, VAR records during inspections at
detergent blending terminals. EPA cannot allow parties to avoid this
enforcement necessity through a privately created contract.
d. Defense to Liability for Gasoline Nonconformity Violations Based
Solely on the Addition of Misadditized Ethanol or Other PRC to
Gasoline. Under the interim and certification programs, gasoline which
is properly additized at a detergent blending terminal can subsequently
become a nonconforming product when a party downstream of the
gasoline's additization terminal blends mis- or unadditized ethanol or
other PRC into the gasoline. The reason for the nonconformity is that
the combined product fails to attain the proper additization
concentration through the addition of the misadditized PRC.
The sale, offering for sale, etc. of nonconforming gasoline is a
violation of the detergent rule for which all parties in the relevant
gasoline, detergent, and PRC distribution systems are presumed liable,
although each such party has the right to assert an affirmative defense
to liability. In addition, branded refiners are also subject to
vicarious liability if the violation involves branded products. Neither
the NPRM nor the interim rule addressed the appropriateness of a
special affirmative defense specifically geared to violations caused by
misadditized PRC.
In commenting on the Reopening Notice, representatives of the
ethanol industry stated that the interim program is causing a chilling
effect on the use of ethanol. According to one industry representative,
this situation is brought about, in part, because parties in the
distribution chain who do not add ethanol to the product are concerned
about their potential liability if mis- or unadditized ethanol is
subsequently added to the gasoline. This commenter asserted that such
parties were avoiding or prohibiting the use of ethanol with their
product because of their apprehension of potential liability.
As a response to this comment, today's final rule provides that the
party not adding the ethanol or other PRC can avoid the imposition of
liability (whether presumptive or vicarious) in this situation merely
by establishing that it did not cause the violation, and that it has
PTDs establishing that the product was in conformity with program
specifications when it left the party's control. This provision relaxes
the presumptive and vicarious liability affirmative defense
requirements established for other violations in the interim program
and proposed in the NPRM, and thus makes it easier for the party not
adding the ethanol to avoid liability for nonconforming product. The
Agency believes this is appropriate because such parties have little
control over this type of violation, and because the environmental harm
of the violation tends to be mitigated by the industry practice of
slightly over-additizing gasoline to ensure that actual additization is
above the required LAC.
e. Liability for the Sale of Nonconforming Gasoline or PRC When the
Gasoline or PRC Also Violates VAR Requirements. This section
articulates Agency policy about enforcement of detergent rule
provisions when the same gasoline violates both the VAR standard
requirement and the prohibition against the sale of nonconforming
product. When gasoline or PRC is misadditized because it failed to
attain the VAR standard, a VAR violation has occurred. Only the
detergent blender and/or those whom EPA can establish caused the
violation are responsible for that VAR violation. However, any party,
including the detergent blender, who sells, transfers, etc. the
nonconforming gasoline or PRC is also subject to liability for a
different violation, i.e., the sale, etc. of nonconforming gasoline or
PRC. Any party subject to liability for any of these violations has the
right to assert an affirmative defense to such liability.
In the preamble to the interim program final rule (59 FR 54700),
the Agency made clear that it intended to treat fairly those parties
who unknowingly sell such non-complying gasoline. EPA is reiterating
that position. Specifically, when a VAR standard violation is found,
the Agency does not intend, as a general practice, to take enforcement
action against the detergent blending party for both the VAR violation
and the violations stemming from the sale of the same nonconforming
gasoline or PRC. However, if the circumstances of the
[[Page 35344]]
violation make the Agency believe that the imposition of liability for
both violations is appropriate, then EPA will bring an enforcement
action for both violations. Such unusual circumstances could include
the party's deliberate attempt to profit from detergent program
violations, or a pattern of significant and repetitive VAR standard
violations.
In a similar manner, when a VAR standard violation is found, the
Agency will not generally take an enforcement action against the non-
blending parties for selling or transferring the nonconforming gasoline
or PRC. The reason is that parties receiving the nonconforming product
typically have no practical means of knowing that the product is
misadditized, and, consequently, they should easily be able to
establish their affirmative defense element. However, if unusual
circumstances exist indicating that the non-detergent blending parties
had responsibility for the nonconforming sale violations, EPA may take
enforcement action against these parties for such sale violations.
f. Detergent Blender Affirmative Defense Clarification and
Clarification of Presumptive Liability Arising from Detergent Blending.
Under the interim program, for detergent blenders to avoid liability
for VAR and product nonconformity violations, they must establish the
standard detergent rule affirmative defense elements of lack of
causation and PTD compliance. In addition, because of their unique
status in the detergent program as the parties actually adding the
detergent to the gasoline or PRC, they are also required to establish
two additional affirmative defense elements. First, they must show
that, prior to blending, they received (or provided) accurate, written
blending instructions including the LAC and any applicable use
restriction information for the detergent. Second, they must establish
that they have a quality assurance (quality) program which includes
periodic review of supporting transfer and measurement documents,
confirming the correctness of the PTD's and VAR documents.
At an API detergent additives compliance task group meeting
discussing implementation of the interim rule, and through an NPRA
comment on the Reopening Notice (see Docket items #IV-E-44 & #VI-D-63),
the Agency was advised of industry concern about this quality program
element for an affirmative defense. The commenters were concerned that
this quality program defense element might require detergent blenders
to review records of downstream parties handling the gasoline, to
ensure that these other parties were complying with detergent rule
requirements. Since these other parties were not under the control of
the detergent blenders, according to these commenters, the blenders
feared that it would be difficult for them to fulfill this
responsibility.
The Agency agrees that detergent blenders should not be required to
review the records or other actions of parties over whom the blenders
have no control. The Agency's primary intent in establishing this
affirmative defense element was to ensure that detergent blenders
properly control and assure the quality of their own additization
process, not the operations of others over whom they have no control.
Therefore, EPA is clarifying that the detergent blender quality program
element applies to the blender's review of its own records and the
supporting documents it possesses to confirm the correctness of its own
additization activities.
Blenders wishing to assert an affirmative defense should be aware,
however, that they may find it difficult to successfully establish
their lack of causation if they knew of a customer's misadditization of
their product, and they failed to prevent the continuance of that
practice. In such situations, the blender can control future
misadditizations by refusing to sell to the violating party. The Agency
believes that, in this unusual situation, the blender does have some
control over such a violation, and that blenders can, and should, be
held accountable for reasonable steps to prevent it in order to
establish an affirmative defense.
Today's rule also clarifies another point about detergent blending
liability. As proposed in the NPRM and as codified in the interim rule,
regulated parties are presumptively in violation if they own, control,
etc. the facility where a gasoline or PRC nonconformity violation is
found. In addition, applicable parties are presumptively in violation
if they do actions (whether upstream or downstream of the place where
the violation is found), such as selling or transferring the product or
components of the product in violation, which could cause the
nonconformity or other violation and which make it reasonable for such
parties to be presumptively in violation.
For this latter liability, as was proposed in the NPRM, the interim
rule specifies the acts giving rise to this presumptive liability,
including such activities as manufacturing, refining, selling,
dispensing, and transporting the products in question. While the
interim rule does not specifically mention the act of detergent
blending as one which would give rise to this liability, the act of
detergent blending is typically associated with the other activities
(such as selling, dispensing, or transferring the relevant product),
which are specified in the rule. The act of detergent blending clearly
could give rise to gasoline or PRC nonconformity violations. Therefore,
today's certification rule clarifies that detergent blending is an
activity that will trigger presumptive liability under both the interim
and the certification programs. This clarification is within the scope
of the NPRM proposal since it merely specifies another action that is
related to the other--similar actions--which precipitate such
liability.
g. Liability Clarification. The Agency received a comment from CMA
requesting clarification as to what specific violations detergent
manufacturers would be deemed liable for, and how the continuing days
of penalties would relate to those violations. CMA stated that the
regulations were unclear, because the section of the rule which
designates the prohibited acts appeared to make manufacturers liable
for a single event, such as the sale of non-conforming detergent, while
the penalty provision appeared to impose liability for all the days
that such non-conforming detergent remained anywhere in the gasoline
distribution chain. CMA also claimed that it was unreasonable for EPA
to impose such extended liability on detergent manufacturers, since
their involvement with the detergent and its subsequent blending is
typically limited to the initial sale or distribution of the detergent.
EPA is clarifying in today's rule that parties are responsible for
causing the presence of nonconforming products in their distribution
systems, in addition to their liability for their own sale, transfer,
etc. of nonconforming products. This scheme for presumptive liability
is similar to that adopted under several of EPA's fuel regulations in
Part 80, and has been found in practice to efficiently provide a
mechanism for EPA to identify the party or parties that have caused a
violation, and to impose adequate potential liability for purposes of
deterrence.
Under today's rule, if a detergent manufacturer makes a sale of a
nonconforming detergent, the detergent manufacturer is liable for a
violation of the prohibition against selling nonconforming detergent.
The detergent manufacturer is also liable for a violation for each of
the days that any of the nonconforming detergent from that sale remains
in the detergent distribution system. In addition, if the
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nonconforming detergent was used by its purchaser to create
nonconforming additized gasoline or post refinery component (PRC), then
each day that the nonconforming gasoline or PRC remains anywhere in the
gasoline or PRC distribution systems, is also included (but not
duplicated), in the total number of days that the detergent
manufacturer is in violation.
In addition, if there were two original sales of nonconforming
detergent by the detergent manufacturer, each of these sales would be a
separate violation for that manufacturer, with additional separate
violations for each day that the nonconforming detergent from each sale
remains anywhere in the detergent, PRC, and gasoline distribution
systems, i.e., if detergent from each sale is in its detergent
distribution system or is found in additized gasoline or PRC in their
distribution systems on a specific day, then there are two violations
for that day. However, the detergent manufacturer is not also
responsible for additional violations committed by downstream parties
who deal with the nonconforming product. The daily violation for
causing the presence of nonconforming product in the relevant
distribution systems does not change depending on the number of people
who happen to store, transport, sell or otherwise deal with the
nonconforming product.
Although the comment related specifically to detergent
manufacturers, this principle is applicable to all parties' liability
under the detergent program. Causing the presence of nonconforming
product in the relevant distribution systems is the basis upon which
EPA established in the interim program the provision under which
penalties continue to accrue for each day that the nonconforming
product remains in these distribution systems. Thus, in clarifying this
point in today's final rule, EPA has added appropriate language to
Secs. 80.155, 80.156, 80.168, and 80.169. This clarification does not
constitute a change in EPA's implementation or intent with respect to
either the interim program or the certification program.
3. Inclusion of Importers of Additized Gasoline Within the
Definition of Detergent Blender. The definition of detergent blender in
the interim rule did not include importers of additized gasoline. It
became apparent to the Agency that this omission interfered with EPA's
ability to determine if imported additized product had been properly
additized, since only detergent blenders are required to maintain VAR
records. EPA thus had less oversight over importers of additized
gasoline than it did over the domestic detergent blending parties
marketing the same product, increasing the risk of importation of
misadditized gasoline. This omission also put domestic detergent
blenders of gasoline at a competitive disadvantage in relation to
importers.
To correct this problem, EPA proposed in the Reopening Notice to
amend the definition of detergent blender to include those parties who
imported additized gasoline. All of the comments received on this issue
supported the proposed change. Commenters stated that including
importers of additized gasoline within the definition of detergent
blenders is fair and closes a gap in EPA's ability to enforce the
regulation.
EPA agrees with these comments. Accordingly, today's final rule
includes importers of additized gasoline within the definition of
detergent blender. This change applies to both the interim program and
the certification program.
4. Certification Use Restrictions. Under the interim program, the
only possible detergent use restriction applies to detergents which
have a separate LAC specific to leaded gasoline. Such detergents cannot
be used at the leaded-only LAC with unleaded gasoline. In all other
circumstances, any properly registered detergent can be legally used
with any gasoline or PRC under the interim program.
Under the certification program, however, a detergent may be
certified for one or more restricted uses, thus taking advantage of
lower LACs applicable to some restricted gasoline pools (see Section
IV). These use restrictions require corresponding prohibitions to
ensure compliance with the restrictions, as proposed in the NPRM. Those
parties choosing to take advantage of the use-restricted certification
options in today's program must fully abide by the certified use
restrictions or they will be subject to liability for violations for
the sale, transfer, etc. of the nonconforming gasoline or PRC that
results from the noncompliance. The following is a description of the
certification rule's use restrictions, followed by a discussion of a
permissible method of removing the restrictions under appropriate
circumstances.
Under the PADD-specific certification option, gasoline and/or PRC
additized with a PADD-specific detergent must be sold, transferred,
etc. to the ultimate consumer or to a retail outlet or WPC facility,
only in that specified PADD.
Detergent certified under the fuel-specific option, may only be
blended into gasoline or PRC that conforms with the fuel segregation
and composition requirements of the fuel-specific certification.
Under the national, PADD-specific, and fuel-specific certification
options, if a detergent is certified with an LAC which is effective for
use only with non-oxygenated gasoline, or only with gasoline containing
a specified oxygenate (or non-oxygenated product), then that detergent
at that LAC may only be used with the appropriate base gasoline or PRC
product. In addition, oxygenates cannot subsequently be added to
gasoline previously additized at a lower LAC certified for use with
non-oxygenated gasoline. Similarly, an oxygenate not included in a
given detergent's certification cannot be added to gasoline which was
previously additized according to that certification.
Properly additized gasoline may be commingled with another gasoline
which was properly additized with a different detergent, even if the
second detergent's certification includes different use restrictions
from the first. However, this does not apply to PADD specific
detergents. Gasoline or PRC additized with a detergent certified
specifically to one PADD may not be commingled with gasoline or PRC
additized with a detergent certified specifically to a different PADD
since, by definition, each batch of gasoline, including any PRC, must
be sold or transferred to the ultimate consumer, etc., in its own PADD
in order to be considered properly additized.
If, prior to EPA inspection or sale to the ultimate consumer, a
party discovers that it possesses product that is nonconforming because
of failure to conform to use restrictions, or that party wants to use
an additized product in a way that would be nonconforming to that
product's use restrictions, it is possible under appropriate
circumstances to cure such nonconformity. Such a situation may occur,
for example, during mandated oxygenate seasons, if a terminal has
gasoline which it previously additized with detergent restricted for
use with non-oxygenated product. In order to comply with the oxygenate
requirements, such a terminal would be permitted to add oxygenate to
the gasoline in spite of its oxygenate restriction, provided the
appropriate curing steps were followed.
The Agency proposed in the NPRM that violations of certification
restrictions (specifically, PADD-specific restrictions), would be
curable by full readditization of the product with the proper PADD-
specific detergent. Commenters from the automotive industry objected to
this approach,
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claiming that such double additization could cause combustion chamber
deposit formation.
While EPA agrees that double additization is not a desirable cure
for use restriction misadditizations, today's rule does permit limited
readditization as a curing procedure under appropriate circumstances.
For example, prior to EPA inspection and discovery of the problem and
prior to sale of the product to the consumer, readditization is clearly
appropriate in the case of gasoline that is nonconforming solely
because it contains detergent at a lower treat rate than required for
that gasoline product. This could occur when a batch of regular
unleaded gasoline is accidentally additized with detergent at the lower
treat rate certified for use only with premium gasoline, or when a
batch of oxygenated gasoline is accidentally additized at a detergent's
lower, non-oxygenated product treat rate. If the detergent has also
been certified at a higher treat rate for use with the gasoline product
at issue, then the violation can be cured merely by adding enough of
the detergent to attain the appropriate, certified treat rate, pursuant
to the formula specified in the rule. In such cases, documentation in
the form of a ``curing VAR'' for the added detergent must be
maintained. In addition, any PTDs created for the cured product must
not include any reference to the prior use restriction which no longer
applies.
Today's final rule similarly permits such curing to enable
downstream parties to add substances which would otherwise be precluded
by the upstream addition of restricted-use detergent. For example,
oxygenate can be added to gasoline which already contains a detergent
at a treat rate certified only for unoxygenated gasoline, provided the
marketer adds at least enough additional detergent to achieve a
combined detergent concentration no less than the detergent's certified
LAC for oxygenated gasoline. In such cases, not only must the oxygenate
component be properly additized with detergent, but the previously
additized gasoline portion must be further additized to attain the
certified treat rate for the combined end-product, i.e., oxygenated
gasoline.
However, if a downstream party does not know which detergent has
been used upstream or does not have access to it, or if the initial
detergent has not been certified for the downstream party's desired
use, then the above provision would not enable the use restriction to
be cured. For this reason, today's rule also permits a party to cure a
use restriction, prior to EPA inspection or knowledge of the problem
and prior to sale to the ultimate consumer, by adding the proper amount
of any detergent (according to the formula for such addition provided
at Sec. 80.169(g)), that has been certified both for the desired use
and the initial use. For example, oxygenate can be added to gasoline
which already contains a detergent certified only for nonoxygenated
gasoline, provided an adequate amount of another detergent is added
which has different LACs certified for use with nonoxygenated and
oxygenated gasolines. The minimum amount of new detergent required is a
function of the difference between its certified treat rates for the
new (e.g., oxygenated) and the initial (e.g., nonoxygenated) uses.
In a similar manner, if a party has misadditized gasoline or PRC in
violation of a PADD restriction, the error can be cured most easily,
prior to EPA discovery of the violation and prior to sale to the
ultimate consumer, by adding more of the same detergent, provided it
has been certified for the desired use. However, the violation can also
be cured by adding an appropriate amount of a different detergent,
provided it has been certified both for the PADD and the desired use
(e.g., national). The amount of additional detergent must be based upon
the difference between the LACs for the PADD and other certification,
and must at least equal the amount determined by the regulatory
formula. In all these instances, the party must create a readditization
VAR to document the use restriction curing procedure. If the above
procedures are fully complied with, then the use restriction is
effectively negated, and any violation that would have resulted from
the use restriction is also obviated.
5. PTD Changes. The core of the PTD requirements established under
the interim program continue under the certification program. However,
certain changes and additions to the PTD requirements have been
incorporated into the final rule. The following is a discussion of
these changes.
a. Elimination of PTD Retention Requirement for Additized Gasoline
for Wholesale Purchaser-Consumers (WPCs). Under the interim program,
gasoline WPCs, as regulated parties under this program, are required to
retain their PTDs for five years. However, EPA has determined that
retention of PTDs for additized gasoline by such parties is not
necessary.
The Agency's enforcement of the interim program thus far has
centered around auditing the VAR activities of detergent blenders and
conducting paperwork reviews of other parties in the gasoline
distribution system, all as part of general fuel regulation compliance
inspections. Because inspections of WPC facilities have not been
extensive, and because EPA does not expect an increase in such
inspections, EPA will not require WPCs to retain PTDs for additized
gasoline under today's final rule. In the unusual event that they
receive any other regulated product (such as unadditized gasoline or
additized PRC), today's rule does require these parties to retain the
PTDs for such unusual transfers. Parties selling or transferring
regulated products to WPCs are still required to transfer PTD's to
those parties and to retain copies of all such PTDs (except as
discussed in the following section).
As proposed under the NPRM and as is required under the interim
program, the certification program requires WPCs to receive PTDs at the
time gasoline is transferred to them, so that they can review these
documents to determine proper additization compliance (with the one
exception for small loads discussed below). In addition, if a WPC
transfers gasoline to another regulated party which is not an ultimate
consumer using it in a motor vehicle, then the WPC is a distributor of
the gasoline, and must comply with all PTD requirements that apply to
distributors.
b. Elimination of PTD Requirements for Transfer of Small Loads of
Additized Gasoline to Ultimate Consumers. Under the interim program,
all regulated parties who transfer gasoline or additized PRC, with the
exception of WPCs or retail outlets transferring gasoline to the
ultimate consumer, are required to transfer PTDs for that product to
the transferee. Similarly, all regulated parties receiving the product
must obtain the PTDs from their transferor. The interim program further
requires that such documents be maintained for five years from date of
transfer.
The Agency was advised by the Independent Petroleum Marketers
Association (IPMA) that this PTD requirement was creating a hardship
for distributors in rural areas who pick up additized gasoline from
terminals, and then deliver small amounts of this product to farmers.
(See Docket items VI-D-51, VI-D-52, VI-D-66, and VI-D-67.) IPMA
suggested that such transfers be made exempt from the PTD requirements
since such sales are analogous to sales to the ultimate consumer from
retail outlets, which are exempt from PTD requirements. These loads are
typically divided from the larger truckloads picked up at the
terminals. New delivery tickets are created for each of the divided
loads, typically hand written and containing
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minimal information. Thus, the creation and storage of detailed PTDs
for those small deliveries is unduly burdensome.
The Agency agrees that small sales by distributors of additized
gasoline to ultimate consumers for their own use can be considered
analogous to retail sales and should be exempt from PTD requirements.
The PTD requirements were established to alert regulated parties and
the Agency to the additization status of the transferred product. This
notification was not intended to be extended to retail customers.
Further, the small amount of product involved, and the fact that the
gasoline is not intended for additional transfer, diminishes even
further the notification value of the PTDs in this situation.
In light of the purported record creation and maintenance burdens
associated with these documents, and because of the minimal
notification value associated with them, today's final rule exempts
from the PTD requirements certain transfers of small amounts of
gasoline. Specifically, the rule exempts transfers of additized
gasoline of no greater than 550 gallons made by distributors which are
not the detergent blenders of the gasoline, to ultimate consumers for
their own use or the use of their agents or employees. The 550 gallon
maximum is established because that is the criteria for minimum tank
size used in the fuels regulations (40 CFR 80.2(o)) to define a party
as a wholesale-purchaser consumer.
The PTD exemption is further limited by the type of parties
involved with the transfer. The exemption does not apply to those
distributors actually doing the detergent blending, since such parties
typically are terminals with equipment that automatically produces
PTDs, and thus have no need for the exemption. Further, the exemption
is restricted to small deliveries to ultimate consumers of gasoline,
who are not in the business of distributing gasoline to other parties.
Deliveries to parties which distribute gasoline are excluded from this
exemption since such marketers are responsible for the further transfer
of gasoline to their own customers. The Agency expects gasoline
marketers to fulfill their regulatory responsibility of reviewing PTD
receipts to ensure that the product received is properly additized.
c. Address of the Transferee/Transferor. The certification program
continues the interim program requirement that the addresses of both
the transferor and the transferee of the product are to be listed on
the PTD. Today's rule also adopts the Q&A Document modification that
allows the address of the transferee to be identified on a separate
document which must be made available to EPA inspectors upon request
(Q&A Document #1, Q.15, p.14). This change responds to industry's
concern about lack of space on commercial transfer documents due to PTD
requirements.
For the sake of conformity with the PTD requirements of the RFG
rules (40 CFR part 80, subparts D & E), as implemented by that rule's
Q&A Documents, and because of document space concerns, today's final
rule expands this alternative procedure to the identification of
addresses of transferrers also. However, as in the RFG program, today's
final rule establishes the following additional requirements for those
who would use this alternative procedure: (1) The normal business
practice between the parties must not include listing addresses on
their transfer documents, and (2) both parties to the transaction must
know and have records of the required addresses.
d. PTD Identification of Oxygenates and PRC Added to Gasoline. In
promulgating the interim program, it was not necessary to require
regulated parties such as refiners to identify on a gasoline product's
PTD whether the gasoline had been blended with a particular oxygenate,
since a properly registered detergent could be used with any gasoline,
including oxygenated gasoline, sold in the United States. Using the
same reasoning, the Q&As for the interim program clarified that any PRC
(including an oxygenate) which was added to gasoline prior to detergent
additization was not required to be identified on the gasoline's PTD.
(Q&A Document #2, Q.6, p.11.) If, however, a PRC was additized
separately from the gasoline, the same Q&A reaffirmed the regulatory
requirement that the gasoline's PTD does have to identify the
component, because it is useful for the Agency and regulated parties to
be aware of the separate additization of the components.
In contrast, the identification of a refinery-added oxygenate or a
PRC is very important under today's final rule, since a specific
detergent certification may not cover the use of a particular oxygenate
or, under the fuel-specific certification option, a particular PRC.
Therefore, as originally proposed, today's rule requires that all
gasoline product transfer documents identify any PRC added to the
gasoline. It further extends the identification requirement to any
oxygenate, whether refinery-added or a PRC, added to gasoline. Without
such identification, parties may inadvertently additize gasoline
containing an oxygenate or PRC with detergent that has not been
certified for use with that product.
e. Detergent Package Use Restriction Designations. Since today's
final rule permits detergents to be certified for use with a specific
fuel, or for a variety of restricted uses, it is important that the
PTDs for detergent packages identify the existence of any special use
restrictions. Without such identification, there would be greater
possibility that a detergent blender would inadvertently use the
detergent with inappropriate gasoline.
In the NPRM, the Agency proposed that PTDs for certified detergents
with PADD, fuel-specific, CARB-based, or leaded gasoline use
restrictions must specify the use restriction that applied to the
detergent being transferred. Today's rule adopts the concept that a
detergent's use restrictions must be highlighted on the detergent's
PTD. However, because detergents under today's rule may be certified
with a multitude of different LACs related to different use
restrictions, today's final rule only requires PTDs for such products
to include a general warning that use restrictions apply to the
product. The Agency believes that requiring identification on a
detergent package's PTD of all the options and corresponding use
restrictions under which a detergent has been certified would result in
a waste of space on PTDs for those detergents with numerous use-
restricted LACs. Furthermore, identification of numerous LACs could be
confusing and counter-productive to the recipient of the detergent,
since many of the use restrictions may not be relevant to the
particular party receiving the detergent.
Therefore, under today's rule, if a detergent has only one
certified LAC for generic use with any fuel product, then the PTD for
the detergent must not include any reference to use restrictions.
However, if the detergent's only certified LAC is for use with a
restricted product (e.g., fuel-specific, leaded only, premium only,
etc.), then the PTD for that detergent package must identify the
detergent as use-restricted detergent. Similarly, if a detergent has
been certified with two or more LACs, and thus has a variety of
restricted use possibilities, the PTD for that detergent package must
indicate that the detergent has special use options available. The
Agency believes that such PTD identification will give adequate notice
to detergent recipients of the use-restricted status of transferred
detergents, while not presenting so much information that the recipient
might be misled by it.
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f. Fuel-Specific Gasoline Designations. As proposed in the NPRM,
today's final rule requires that base gasoline which is segregated for
use with a particular fuel specific-detergent must be identified as
such on its PTD. This identification will help prevent the use of the
specialized detergent with an inappropriate gasoline. The PTD for such
gasoline must indicate that it is base gasoline for use with the
designated detergent package.
Because fuel-specific certification is based on gasoline from a
segregated fuel supply, oxygenates or PRCs may be added to the subject
gasoline only if they were specifically included in the detergent's
fuel-specific certification. Today's rule adopts the proposed provision
that base gasoline with oxygenates or PRCs which were not included in
the designated detergent's fuel-specific certification cannot be
identified on its PTD as base gasoline for use with that fuel-specific
detergent.
At the marketer's option, base gasoline which is designated for a
fuel-specific detergent may be additized with a different detergent, or
at a non-fuel-specific LAC treat rate. The fuel-specific designation
does not require the use of the fuel-specific detergent, it merely
permits it.
Today's certification rule also specifies the proper PTD
identification for the fuel-specific gasoline designated in a fuel-
specific detergent certification which establishes that such gasoline
does not need to be additized. Because some unusual gasoline supplies
may be able to pass the performance requirements of detergent
certification testing without the use of detergents, today's rule
provides that such gasoline may be legally sold and transported under
the fuel-specific certification option. The rule further requires that
a PTD for such product must identify it as ``detergent-equivalent
gasoline''. This is appropriate nomenclature, since the fuel is
equivalent to additized gasoline in its deposit prevention capability.
The use of this PTD identification will provide notice to recipients of
the actual additization status of the product.
g. PADD Designation on PTDs for Additized Gasoline or PRC. Today's
rule adopts the proposal that the PTD for gasoline or PRC additized
with a PADD-specific detergent must identify the product as restricted
for ultimate sale or transfer in that PADD. For example, use of the
phrase ``PADD I only'' would be considered acceptable identification of
this restricted use. In a similar manner, the PTD for gasoline
additized with a CARB-based certified detergent must identify the
product as CARB-based, to alert recipients that the gasoline must
either have been additized in California or sold to the ultimate
consumer in that state. (See section VIII(B)(7)(c), below, for a
discussion of specified detergent rule exemptions for gasoline
additized and sold in California.) As discussed above, gasoline or PRC
may be cured of PADD or other use restrictions through the approved
readditization curing process.
h. Identification of Oxygenate and PRC Use Restrictions on PTDs for
Additized Gasoline. As previously discussed, a misadditization
violation would arise under today's rule if oxygenate or PRC were added
to gasoline additized with a detergent restricted against that use.
Therefore, successful implementation of the detergent program requires
that gasoline additized with such detergent must have a PTD identifying
the oxygenate or PRC restriction. Use of such phrases such as
``oxygenate use prohibited'' or ``MTBE use only'', would be acceptable
identification. Such PTD identification for the additized gasoline will
provide notice to downstream parties of the continuing oxygenate or PRC
use restriction applying to the product. It will also alert these
parties to the need to eliminate the restriction through the approved
curing method if they desire to add the restricted component.
This PTD identification requirement for additized gasoline is a
modification of the NPRM proposal, which would have required that PTDs
for additized gasolines identify the EPA certification number of the
detergent used to additize the gasoline. Under the proposal, the use of
the specified certification number would have provided notice to
recipients that the particular use restrictions certified with that
specified detergent needed to be followed.
However, today's final rule does not provide certification numbers
for detergents, since EPA does not believe that the informational
benefits of such numbers would outweigh the administrative and
recordkeeping burdens associated with them. As a more efficient
substitute, today's rule merely requires that those gasolines actually
additized at a use-restricted LAC rate must identify the applicable
oxygenate or PRC use restrictions on their PTDs.
i. Base Gasoline Identification. Under the interim program rule,
all regulated parties transferring unadditized gasoline are required to
identify the product on its PTD as base gasoline. In addition, PTDs for
such product are also required to state the warning that this gasoline
is ``Not for sale to the ultimate consumer''. These base gasoline
requirements originally proposed in the NPRM were considered necessary
to highlight to the recipients the significant information that such
unadditized product could not legally be sold or transferred for
consumer use.
Although the Agency still believes it is important for unadditized
gasoline to be highlighted as such within the gasoline distribution
system, EPA no longer considers it necessary to mandate particular
identification language (e.g. the phrase ``base gasoline'') for it. EPA
experience in implementing the interim program has shown that
permitting industry flexibility in complying with PTD identification
requirements has not resulted in significant identification problems.
Therefore, under today's final rule, PTDs for base gasoline may use any
nomenclature which clearly states that the base gasoline is
unadditized. However, today's rule does require that PTDs for most base
gasolines must include the mandated language specifically warning
against the sale of unadditized gasoline to the ultimate consumer.
An exception is base gasoline to be used for research and
development purposes, as discussed below in section VIII.B.7. Another
exception was initially articulated by EPA in Q&A Document #1, Q.13,
p.13, in response to a refiner's suggestion that the consumer-sale
prohibition language was unnecessary on certain specialized PTDs.
Specifically, an industry party requested permission to delete this
language on PTDs for contractually controlled bulk transfers of
unadditized product from refiners to pipelines, when the parties have a
written agreement which states that the pipeline will not sell or
transfer the unadditized gasoline to ultimate consumers.
The Agency agreed in the Q&A Document that transfers between these
parties under these circumstances should not require the PTD warning
language, because the likelihood of such unadditized product being
mistakenly delivered to a consumer is minimal. Today's final rule
codifies this exception to the PTD warning language requirement in the
limited circumstances outlined above. The Agency believes that this
modification of the proposal will not result in the sale of unadditized
product to consumers, but will reduce the paperwork burden on refiners
and pipelines.
j. Use of Product Codes on PTDs. The NPRM and interim program did
not address the use of product codes and other language not specified
in the regulation, to satisfy the information requirements established
for PTDs. However, both in comments on the
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NPRM, and in implementation feedback to the Agency (See Q&A Document
#1, Q.13, p.13), regulated parties requested permission to use product
codes to satisfy PTD information requirements proposed in the NPRM and
codified in the interim program. The rationale given by the parties
supporting such substitution is that the use of product codes would
greatly reduce the amount of space needed to convey the required
information.
The Agency is sympathetic to industry's need to conserve space on
commercial documents because transfer documents have to comply with
several regulatory information requirements, not only those associated
with the detergent rule. In response to this concern, the Agency issued
a Q&A Document which permitted the use of product codes to comply with
the interim program's PTD requirements, provided certain conditions
were met (Q&A Document #1, supra.) The conditions are designed to
ensure clear communication of the information required by the
regulation.
Under the Q&A guidance, product codes or other alternative language
must be clear, accurate, and not misleading. They must be standardized
throughout the distribution system in which they are used, and
downstream parties must be informed of their full meaning. However,
parties may not use product codes or alternative language to substitute
for the two required warnings found in the interim regulation. These
are the prohibition against the sale of base gasoline to the ultimate
consumer, and the statement that a detergent certified only for the
control of carburetor deposits must be used with leaded gasoline only.
The Agency believes that these warnings are so important that
abbreviations or substitutions for them would not provide adequate
notice to receiving parties.
Today's final rule codifies this approach. The rule's provision
requires such codes to be clear and accurate, so that any parties
transferring PTDs with product codes or alternative language which are
confusing or not effectively explained to downstream parties, are not
in compliance with the detergent rule's PTD requirements. Such parties
are also liable for any product nonconformity violations caused by the
non-complying PTDs.
Today's rule does not prohibit the use of product codes to convey
the leaded gasoline only warning, since PTD notification requirements
for all detergent package use restrictions, including the leaded
gasoline restriction, are treated in the same way under today's final
rule (See preamble section VIII.B.5.e.). Instead, compliance with the
generic use-restriction language is required, to provide effective
notice to recipients of the detergent package that the use of the
detergent is subject to conditions.
As discussed in the previous section, today's rule does not permit,
in most instances, substitution for the regulatory warning language
against the sale of base gasoline to the ultimate consumer. However,
electronic data transmissions cannot accommodate the PTD regulatory
language for base gasoline transfers. Consequently, as under the RFG
program, today's final rule permits the warning language on electronic
PTDs to be reflected by product codes, provided that such documents are
for title transfers only, and do not involve actual transfer or
possession of the product. Under the specified conditions, the Agency
does not believe that the absence of the exact regulatory warning
language from the electronic PTDs will result in the improper transfer
of unadditized product.
k. PTD Requirements for Gasoline Overadditized for the Later
Addition of Ethanol or Other PRC. Under the interim rule, when gasoline
is overadditized to account for the later addition of unadditized PRC,
the PTD for the gasoline must indicate that the product has been
overadditized to account for the later addition of a specified volume
of PRC. The purpose of this requirement is to provide notice to the
recipient that only the stated volume of PRC has been accounted for by
the gasoline's overadditization.
At the 1994 API public seminar on the interim program, EPA received
industry feedback that it would be difficult for marketers to identify
on PTDs the actual amount of anticipated ethanol that the particular
overadditization accounted for, and that it would be much more
convenient and preferable to identify the standardized, maximum
percentage of product volume that the anticipated ethanol could
comprise (See Docket item IV-E-45). For example, most blenders using
this procedure would over-additize a batch of gasoline in anticipation
of the later addition of ethanol amounting to no greater than 10
percent of the fuel's finished volume.
The Agency believes that identification of the maximum percentage
of total product volume that the blender anticipates will be PRC, and
for which the blender has additized, will provide adequate notice of
the maximum amount of such product that may be added to the additized
gasoline. Therefore, EPA stated at the API seminar that blenders could
identify on PTDs the amount of ethanol that could be added to
overadditized gasoline either by this percentage, or by the volume of
ethanol. Today's final rule codifies this change as to ethanol and
other PRCs.
6. Extension of the Agency's Right of Entry into Facilities of
Detergent Manufacturers, Distributors, and Carriers. Neither the NPRM
nor the interim program addressed the Agency's authority to enter and
inspect the premises of parties in the detergent distribution system.
The EPA believes that such authority is included in its information
gathering authority under section 114, as well as in its authority to
regulate detergents under section 211(l) of the Clean Air Act, and in
its general authority under section 301(a). Therefore, EPA proposed in
the Reopening Notice to expand its right of entry provision located at
40 CFR 80.4.
Section 80.4 currently states that the Administrator or her
authorized representative may enter the premises of parties in the
gasoline distribution system to make inspections, take samples, and
conduct tests to determine compliance with EPA fuels requirements under
40 CFR Part 80. In the Reopening Notice, the Agency proposed expanding
this section to include entry into the facilities of the detergent
manufacturers, distributors, and carriers now regulated under Part 80.
Only one commenter, the Chemical Manufacturers Association, opposed
the proposal, and did so only in regard to detergent manufacturers. CMA
stated that section 211(l) does not make it unlawful for detergent
manufacturers to produce or store detergents out of conformity with EPA
specifications. CMA argued that EPA's only legitimate concern under
section 211(l) was to ensure that detergents met specifications when
they were blended into gasoline. This commenter believed that the
Agency could adequately address this concern by sampling detergents
only at the premises of detergent blenders. Thus, argued CMA, EPA's
right to enter and inspect the premises of a detergent manufacturer
could not be considered necessary to carry out its functions under the
Act and was, therefore, not authorized under section 301.
The Agency disagrees with CMA's argument. The Agency believes that
it is necessary for EPA to inspect the premises of detergent
manufacturers, both to enforce the detergent specifications mandated by
section 211(l), as well as to prevent the creation of misadditized
gasoline which would also be in violation of section 211(l).
[[Page 35350]]
Detergent manufacturers can clearly cause detergents to fail to conform
to required specifications through their improper manufacture of the
detergents. Their sale of such nonconforming detergent, which is a
violation of the detergent program in itself, would then cause other
violations of the program, namely, the sale of misadditized gasoline
based on that detergent nonconformity.
To ensure that the regulatory detergent specifications are met and
that detergent is not sold which would cause the sale of misadditized
gasoline, it is necessary for the Agency to sample and test detergent
at all points in its sale/distribution system, including at detergent
manufacturer facilities. It would be counter-productive and impractical
for the Agency to wait to sample and test nonconforming detergent until
a detergent blender is actually in the process of using it, or has
already used it, in violation of section 211(l) prohibitions. Thus, the
Agency's ability to inspect the premises of detergent manufacturers is
reasonable and necessary for EPA to effectively carry out its statutory
mandates.
7. Exemptions. As proposed in the NPRM, the interim program
includes an exemption from the requirements of the detergent rule for
detergent used for research, development, and testing purposes. Also
exempt under the interim program are aviation fuel and racing fuel.
Several parties commenting on the interim program have requested
modifications of these exemptions. (See Docket items #IV-E-41, VI-D-08
and VI-D-69.) The following is a discussion of the exemptions finalized
today, including a discussion of the newly-included California gasoline
exemptions.
a. Research, Development, and Testing Exemption. In the NPRM, EPA
proposed that parties conducting research and development (R&D) testing
of gasoline and detergent additives could apply to the Agency to obtain
detergent rule exemption waivers for their products. Pursuant to
industry comment that the proposed waiver procedures were burdensome
and unnecessary, the interim program established an R&D-exemption which
did not require a specific EPA waiver. Under this provision, detergents
that are in a research, development, or test status, or are sold to
petroleum, automobile, engine, or component manufacturers for such
purposes, are exempt from the rule's requirements, provided that (1)
the detergent or the fuel containing the detergent is kept segregated,
(2) documentation identifies the product as R&D and states that it is
only to be used for R&D purposes, (3) the product is not sold or
transferred, or offered for sale or transfer, from a retail outlet, (4)
if the detergent is transferred or offered for transfer from a WPC
facility, that facility is R&D associated, and (5) the party using the
product notifies EPA at least annually, and prior to usage, of the
purposes of the R&D program and the volume of the product to be used.
A comment on the Reopening Notice pointed out that this R&D
exemption did not appear to include base gasoline to be used for R&D
purposes. This commenter suggested that EPA specifically add base
gasoline to be used for R&D purposes to the products being exempted
under the rule. The commenter also suggested amending the PTD warning
requirements for base gasoline, so that a base gasoline PTD could say
either that the product was not for sale to the ultimate consumer or,
if appropriate, that it was to be used only for R&D purposes.
The Agency agrees with this comment about the R&D exemption. The
omission of R&D base gasoline from the language of this exemption
provision was unintentional. Today's final rule therefore corrects this
omission and specifically includes within the exemption all R&D
gasoline, both base and additized product. The rule requires, however,
that for gasoline to be exempt under this provision, it must be used by
an appropriate R&D institution, i.e., a manufacturer of additives,
gasoline, automotive parts, or automobiles, or it must be used under
the control of such a party. This requirement will ensure that only
parties legitimately connected with petroleum, additive, or automotive
research and development will be able to use the exemption.
In response to the request that EPA allow PTDs for R&D base
gasoline to identify the product as such, and to state ``For R&D
purposes only'' instead of the general warning against sale to the
ultimate consumer, today's final rule permits such information on PTDs
for this fuel.
CMA commented that the R&D exemption requirement of prior and
annual notification to EPA was unfair and burdensome. This commenter
asserted that such notification was not required for the other
detergent rule exemptions, and therefore should not be required for
this one. Further, CMA argued that the actual volume of R&D product to
be used in an upcoming year was not knowable at the beginning of the
year, which would make it difficult to comply with the reporting
requirement. Both CMA and a second industry commenter (Docket item #VI-
D-57) believed that the notification requirement was confusing as to
which parties had to report, because contract laboratories often
perform research on behalf of the gasoline, additive, or automotive
manufacturers.
While today's final rule retains the annual notification
requirement for the R&D exemption, EPA has modified the requirement in
response to these comments. The Agency believes that annual
notification is necessary because it alerts the Agency to intended R&D
product use. The Agency can then inspect the R&D facilities to ensure
that the exempted product is actually being used for legitimate R&D
purposes. In addition, the prior notification requirement is useful for
enforcement purposes because any party attempting to assert R&D status
as a rationale for noncompliance will first have to establish that it
previously notified the Agency of its intended R&D use.
However, in response to commenter concern, the final rule does ease
the R&D notification requirements. The rule permits either the party
actually conducting the research or the party controlling the research
to make the notification to EPA. Therefore, if they choose,
manufacturers can submit one annual notification to cover all the R&D
products that their contract laboratories are testing for them,
obviating the need for contract laboratories to submit multiple
notifications for their varied testing work. Moreover, the annual
notification need only identify a reasonable estimate of the R&D
product to be used in the coming year, rather than a certain amount.
b. Racing and Aviation Fuel Exemptions. As proposed in the NPRM,
the interim program included an exemption from detergent rule
requirements for fuel sold, transferred, etc. as automotive racing fuel
and for fuel sold, etc. as airplane engine fuel. For such fuel to be
exempt, it must be kept segregated and must be accompanied by
documentation identifying it as racing or aviation fuel, not for street
or highway use. The exemption provision also required that the product
not be sold or transferred from a retail outlet.
Several comments on the NPRM protested the restriction that racing
fuel sold or transferred from a retail outlet would not qualify for the
exemption. These comments stated that prohibiting the sale of such fuel
at retail outlets would be unfair to auto racing participants, since
some racing facilities do not have fuel pumps available. Further, the
comments alleged that this
[[Page 35351]]
requirement would discriminate unfairly against retail outlets.
The interim program's exemption for racing fuel included the retail
outlet sale restriction because such fuel, which normally has a high
lead content and lacks detergent additives, is not appropriate for
street or highway use. Retail outlets, by their very nature, are
facilities at which fuel is sold to consumers for street or highway
use. Therefore, the Agency believed that permitting the sale of this
product at facilities regularly selling gasoline to general consumers
would be conducive to the illegal sale and use of this exempted
product.
EPA remains concerned about this potential problem, but agrees with
the commenters that completely prohibiting the sale of exempt racing
fuel at retail outlets is an unnecessarily broad solution. Therefore,
today's final rule places less restrictive requirements on the sale of
exempt racing fuel to protect against the sale of this product to
highway-use consumers.
The product segregation and documentation requirements promulgated
in the interim program will continue under today's rule. Also, the rule
affirms that the exemption is confined to fuel distributed to racing
vehicles that are restricted for nonhighway use. This requirement is
consistent with that of the RFG program. The consistency between the
two fuels programs will make it easier for parties to comply with both
programs. In addition, today's rule requires that pumps from which
racing fuel is dispensed must be clearly labeled as such.
The Agency believes that these provisions will prevent the improper
use of unadditized racing fuel in highway vehicles as effectively as
the proposed retail outlet sale prohibition would. At the same time,
these requirements do not unfairly discriminate against retail outlets
but apply, instead, to all parties selling or transferring racing fuel.
It is a violation of today's rule to sell product claimed to be
exempt racing fuel and not properly additized to a consumer for street
or highway use. The Agency believes that parties who sell or transfer
the product to inappropriate recipients may have difficulty
establishing for an affirmative defense that they did not cause the
violation if they cannot demonstrate that they complied with the
exemption requirements and that they had taken reasonable steps to
ensure the product would be used in the proper manner so that the
exemption would apply.
Today's rule continues to exempt aviation gasoline. Similar to the
exemption for racing fuel, today's rule requires dispensers of exempt
aviation gasoline to properly label the aviation pumps, and to sell or
transfer the product for aviation use only. The interim program's
segregation and documentation requirements for this product are also
continued in today's rule. The Agency believes that these requirements
will ensure that the exempt product is used only in aviation engines.
c. California Gasoline Exemptions. The interim program requires
that gasoline additized and sold or transferred to the ultimate
consumer in California is subject to all the enforcement-related
provisions of the Federal detergent program, including the VAR and
paperwork requirements, in spite of the fact that CARB is also
regulating this fuel under its own detergent program. At the time the
interim rule was promulgated, EPA was concerned that CARB's detergent
program might not be as effective as the Federal program in ensuring
compliance with the Federal standards for proper additization. However,
CARB's enforcement of its detergent regulation program has proven to be
very vigorous, and its enforcement requirements have been shown to be
effective.29 Further, CARB has proposed changes to its detergent
program which would make CARB's program even more rigorous in the
future.30
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\29\ See Docket item VI-D-68 for a summary of CARB's detergent
program enforcement actions.
\30\ See Docket item VI-D-55 regarding the 9/29/95 Proposed
Amendments to CARB's Detergent Additive Rule.
---------------------------------------------------------------------------
Therefore, EPA now considers that CARB's VAR and paperwork
requirements, even under the present CARB statutory language, will be
as effective in ensuring compliance with the Federal standards as are
their Federal program equivalents. Consequently, EPA has decided to
create exemptions for California gasoline from the Federal VAR and PTD
provisions. Since the equivalent CARB record keeping and reconciliation
provisions are effective, these Federal enforcement requirements would
be superfluous in California.
Today's rule merely exempts the specified California gasoline from
certain Federal enforcement program requirements that are unnecessary
in California. Specifically, gasoline additized in California is exempt
from the Federal VAR requirements, and gasoline sold or transferred
wholly within California is exempt from the Federal PTD requirements.
Such gasoline is still subject under today's rule to the general
requirements of additization and sale in conformity with Federal
certification requirements, since Congress mandated the additization,
pursuant to EPA specifications, of all gasoline sold to consumers in
the United States. California detergent blenders can comply with both
the state and Federal requirements by using detergents which have CARB-
based Federal certifications, and following the CARB-mandated record
keeping and VAR procedures. EPA will evaluate California blenders'
compliance with the Federal LAC standards by examining the records of
the same type mandated by CARB, plus the CARB-mandated type of records
for gasoline additized in California for ultimate sale elsewhere. The
Agency does not expect to regularly conduct detergent program
inspections in California. EPA believes that CARB's enforcement of the
California requirements will adequately assure compliance with Federal
standards. However, if EPA believes it appropriate, the Agency will
conduct detergent program inspections of California facilities.
To ensure that the Agency will have access to the same amount of
compliance records for California detergent blenders as for blenders
outside of California, today's final rule requires California-regulated
parties who operate under the exemption from the Federal VAR
requirements to maintain the detergent program records required by CARB
(and the same type of records for gasoline to be sold outside of
California), for the same five-year period that records are required to
be maintained under the Federal program. The Federal VAR exemption is
predicated on this record creation and maintenance. The Agency will
thus be able to review these compliance records, if and when it chooses
to inspect California facilities, covering the same time period that
applies in other states.
The California gasoline exemptions from the specified VAR and PTD
provisions of the Federal detergent enforcement program are also
predicated on EPA's conclusion that the CARB program is as effective as
the Federal program in ensuring compliance with the Federal detergent
standards. EPA intends to monitor CARB's program to ensure that these
exemptions continue to be justified. If EPA determines that changes in
CARB's regulations or its enforcement practices, or other changed
circumstances, would compromise the CARB program's ability to ensure
compliance with Federal additization standards, then EPA may
[[Page 35352]]
delete these exemptions through a future rulemaking.
C. Proposed Changes Not Incorporated in the Certification Rule
Several changes to enforcement provisions of the interim program
were proposed in the Reopening Notice but are not incorporated in
today's certification rule. The following is a summary of these
proposed changes along with the reasons they were ultimately rejected
by the Agency.
The first such nonfinalized proposal would have required the use of
meters on all automated additization equipment injectors. EPA proposed
this metering requirement to promote greater additization accuracy.
However, comments on this proposal universally condemned it as being
expensive, disruptive of industry's present operating procedures, and
not necessarily effective in ensuring greater accuracy. The commenters
believed that the detergent program should continue to permit blenders
to use their existing equipment, unless enforcement experience
established a need for greater accuracy.
These comments are persuasive. EPA enforcement experience of the
first year of the detergent program has indicated minimal problems with
non-metered records. Therefore, the extra expense of new metered
additization equipment has not proven to be necessary.
The second nonfinalized proposal would have required VAR volumes to
be recorded to the nearest tenth of a gallon, instead of the nearest
gallon requirement established under the interim program. Commenters
disputed the need for increasing the severity of the recording
requirement, since some additization systems cannot measure volumes to
that degree of precision and installing new equipment would be very
costly. At the same time, commenters asserted that increasing the
precision would not bring noticeable benefits in greater additization
accuracy. In particular, it was pointed out that recording volume
figures to one tenth of a gallon, for the large volumes of fuel
typically being recorded, would be meaningless in improving
additization compliance.
The Agency finds these comments persuasive, except as regards VAR
reporting of detergent volumes of five gallons or less. Reporting such
small amounts of detergent only to the nearest gallon would create a
greater than 10 percent degree of inaccuracy in reporting the
additization that actually occurred. The Agency believes that this is
an unacceptable level of inaccuracy in VAR compliance reporting.
Therefore, although the proposed change to a tenth of gallon reporting
is not generally incorporated in today's final rule, detergent volumes
of five gallons of less are required to be recorded on the VAR formula
records to the nearest tenth of a gallon (or smaller unit), if the
blender's equipment can measure to this level. If not, such volumes are
to be reported down to the nearest gallon. This procedure will address
EPA's concerns for accurate reporting of additization, while also
meeting industry's objection to purchasing upgraded equipment merely to
ensure this accuracy.
Another proposed change not incorporated in today's final rule was
the imposition of a minimum detergent concentration for each gallon of
gasoline additized, in addition to meeting the VAR averaging
requirement. This was another proposal that industry commenters to the
Reopening Notice consistently opposed, primarily because of the huge
expenses they said would be entailed for installing additization
equipment that could monitor per-gallon compliance. Commenters argued
that little gain would result from this requirement, since deposit
formation occurs over the long term. Therefore, according to these
commenters, the compliance already required under the VAR averaging
procedures should be adequate to prevent such buildups.
EPA concedes the points made, and has chosen to delete the proposed
requirement of per-gallon minimum additization. This decision could be
revisited in the future, however, if experience shows that such
additional compliance requirements are necessary to effectively prevent
deposit formation.
The fourth change not incorporated was the extension of presumptive
liability for VAR violations to all parties, except upstream carriers,
in the product's distribution system. See Section VIII.B.2.b. for a
discussion of this issue.
The final proposed change from the Reopening Notice that was not
included in today's rule was the prohibition against the use of
multiple equipment set rates within one VAR formula record. The Agency
was concerned that if gasoline additized under several detergent
concentration set rates were included within the reported VAR volumes
in the same formula record, then there would be inadequate assurance
that the gasoline additized at the lower rates was in compliance with
the LAC standard. Compliance at the higher rates could mask
noncompliance in the lower rates. Therefore, the Agency proposed the
prohibition against the use of multiple set rates within the same VAR
record.
Detergent blender commenters to this proposal wanted to retain the
ability to use multiple set rates in the same VAR record because it
would minimize their VAR paperwork burdens and would allow the use of
present equipment. They rejected the need for the proposed prohibition,
arguing that the interim program's prohibition against setting any
injector's set rate lower than the LAC and the additional prohibition
against adjusting any injector's set rate higher than 10 percent of its
initial setting, would effectively ensure that the gasoline additized
at the lower treat rates also attains the LAC standard.
The Agency agrees with these comments that the interim program's
set rate requirements do provide some insurance that the gasoline
additized under the lower concentrations will be adequately additized.
Therefore, EPA does not consider the added paperwork and equipment
expenditures associated with the proposed multiple set rate prohibition
to be warranted. However, the certification program maintains the
interim program requirement that detergents being used at different
LACs must be recorded and reconciled on separate VAR formula records
(See section VIII.B.2.e.). Since VAR compliance is based on the
comparison of the actual detergent concentration attained with the
appropriate LAC certified for the fuel product being additized, each
restricted LAC must be separately compared to the respective additized
product.
To make this requirement meaningful, the certification program
continues the interim program's requirement that blenders using a
detergent at different LACs must have the ability to accurately measure
the additization occurring under each LAC. Both the interim and
certification programs provide flexibility to blenders in satisfying
this requirement. For example, such blenders could measure usage from
different tanks containing the detergent being used at different LACs,
use a separate meter on an injector that is additizing under a separate
LAC, or use a meter capable of distinguishing additizations under
separate LACs.
In summary, for the reasons outlined above, EPA agrees with the
overwhelming majority of commenters to the Reopening Notice that the
above compliance provision modifications discussed in this section
should not be adopted. To date, EPA's enforcement experience with the
interim program has shown a high level of additization compliance. If
future experience reveals that current enforcement provisions are
[[Page 35353]]
inadequate, then EPA may revise these provisions through another
rulemaking.
IX. Administrative Requirements
A. Administrative Designation and Regulatory Analysis
Under Executive Order 12866 (58 FR 51735, Oct. 4, 1993), the Agency
must determine whether this regulatory action is ``significant'' and
therefore subject to OMB review and the requirements of the Executive
Order. The order defines ``significant regulatory action'' as any
regulatory action that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or,
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, EPA has determined
that this final rule is a ``significant regulatory action''. EPA's
regulatory impact analysis (RIA),31 available in the public docket
and summarized below, indicates that the annual costs to producers for
compliance with the requirements of the certification program are
expected to exceed $100 million. Therefore, EPA has treated this action
as significant and has submitted a regulatory analysis to the Office of
Management and Budget (OMB) for review.
---------------------------------------------------------------------------
\31\ The RIA was prepared in conjunction with the interim
detergent program based on costs and benefits projected for the
detergent certification program (Docket item V-B-01). An addendum
updating the RIA was prepared to reflect minor changes in program
costs from those projected in the original analysis (Docket item V-
B-03).
---------------------------------------------------------------------------
The total cost of the detergent additive certification program
includes costs associated with certification testing and additional
registration and record-keeping requirements, as well as additization
costs. Over 90 percent of the total estimated cost of the program is
associated with the price of the additives needed to bring all gasoline
up to the effective detergency levels which much of U.S. gasoline
already contains. The average incremental cost to consumers is
projected to be approximately 0.10 cents per gallon of gasoline. This
amount will be partially compensated for by the increased fuel economy
and decreased maintenance requirements which improved deposit control
is expected to provide.
The gasoline detergent additive requirements are expected to result
in reductions in motor vehicle emissions of hydrocarbons, carbon
monoxide, and oxides of nitrogen, totalling over one million tons
during the 30-month interim program and about 600,000 tons per year
under the detergent certification program. These emissions reductions
will be achieved at relatively low cost, i.e., about $226 per ton. Fuel
economy benefits are also expected as a result of the detergent
program, amounting to nearly 450 million gallons during the 1995-2001
period. The savings associated with this fuel economy benefit are
expected to partially offset the costs of the program, decreasing the
cost per ton of emissions reduction to $120.
The program is not expected to be a significant cost burden to
individual businesses, and adverse effects on competitive relationships
are not expected. In fact, this rule should result in increased sales
and business opportunities within the fuel additive industry. Any
written comments from OMB and any EPA response to OMB's comments are
available in the public docket for this rule.
B. Regulatory Flexibility Act
EPA's analysis of the impact of this rule on small entities is
included as Chapter 5 in the Regulatory Impact Assessment (RIA) that
was prepared in association with the interim program as described
above.
The analysis shows that the regulatory responsibilities of the
various types of businesses affected by this rule, along the chain from
gasoline refiner to distributor to retailer, differ significantly. For
each type of business, however, even for the small business entities in
this chain, the costs of the regulation are estimated to be modest. The
largest costs will be incurred by gasoline producers in the price of
the additional detergent additive required to be added to gasoline.
However, this basic cost is essential to the Clean Air Act mandate and
for realization of the program's emission control objectives. Also, to
some extent, additization costs are expected to be passed along the
distribution chain to consumers. In the case of small additive
manufacturers and additive injection equipment manufacturers, rather
than being unduly burdensome, this regulation could result in
significant economic opportunities through increased sales.
The addendum to the RIA, as noted in the previous section, was
prepared to reflect minor changes in the regulatory program from the
previous analysis. Relevant changes were primarily associated with the
cost of detergent certification testing, especially in regard to test
fuel qualification. For small additive manufacturers, which are likely
to use the services of contract laboratories for certification testing,
such costs can be largely defrayed by cost sharing, since ``proven''
test fuels can be used by an unlimited number of laboratory customers.
Furthermore, the economic benefits to small additive manufacturers of
the requirements for detergent use will more than compensate for the
manufacturer's certification costs under this rule. Thus, as was found
in the original analysis, the addendum to the RIA concluded that
significant adverse economic impacts on small businesses are very
unlikely to occur as a result of this rule. Consequently, EPA has
determined that this rule will not have a significant adverse impact on
a substantial number of small entities.
C. Paperwork Reduction Act
The changes to the detergent program's information collection
requirements in this rule have been submitted for approval to the
Office of Management and Budget (OMB) under the requirements of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An Information
Collection Request document has been prepared by EPA (ICR No. 1655.03)
and a copy may be obtained from Sandy Farmer, Regulatory Information
Division; EPA; 401 M Street, SW. (Mail Code 2137); Washington, DC
20460, or by calling (202) 260-2740. These new requirements are not
effective until OMB approves them. The information collection
requirements currently in force under the interim detergent program
(ICR No. 1655-02) will continue to be effective until replaced by those
contained in today's rule. In addition, many of the information
collection requirements unique to the detergent certification program
were anticipated in the NPRM and were previously approved by OMB (ICR
No. 1655-01). These requirements will also be effective until the
requirements contained in today's rule are approved by OMB.
The information to be collected is necessary for the Agency to
ensure that detergent additives that are effective in controlling
deposits are used and that the emissions control goals of this
[[Page 35354]]
regulation are realized. The information will be used by the Agency to
evaluate whether the deposit control performance standards in today's
rule have been satisfied, that detergents are blended into gasoline at
the required levels, and that the restrictions placed on the use of
detergents certified under the different certification options are
observed. The information collection requirements are mandatory apart
from those associated with maintaining affirmative defenses. Section
114 of the Clean Air Act (CAA), 42 U.S.C. 7414 authorizes EPA to
require recordkeeping and reporting regarding enforcement of the
provisions of Title II of the CAA, including the provisions related to
this rule. Any information or detergent samples submitted to EPA for
which a claim of confidentiality is made will be safeguarded according
to EPA regulations at 40 CFR 2.201 et seq.
The following estimates of this collection requirements hourly and
cost burden include the time to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to respond to a
collection of information; search existing data sources; complete and
review the collection of information; and transmit or otherwise
disclose the information.
The desegregated hourly burden estimates for this collection are as
follows:
(a) Additive manufacturers: (1) EPA estimate that two research
exemptions will be reported each year per respondent at about 0.08 hr.
per response, with 59 total respondents; (2) The certification testing
recordkeeping burden is estimated at approximately 3.5 certifications
per respondent in 1996 and 1997 with 59 total respondents. In 1998 and
following years this is estimated to drop to approximately one
certification per respondent. The burden initially includes about 382
certifications but is reduced dramatically to a turnover rate of about
15 percent of the initial number of certifications annually in future
years. The burden per certification response is estimated to be less
than 90 hours. The 1997 hours for all respondents is approximately
21,830. This is reduced to about 5,160 hours in 1998 and 1999; (3)
Other yearly requirements are customary business practices or have no
hourly burden except a 0.15 hr. burden to review the instruction for
quality assurance provision;
(b) Refiners and importers: (1) Refiner/importer voluntary quality
assurance for defense involves about 20 responses per respondent with
about 0.01 hr. per response. One hundred parties are estimated to
perform these voluntary quality assurance procedures; (2) Other
requirements involve no hourly burden;
(c) Terminals who blend detergent: The monthly detergent use
accounting records requirement is largely a customary business practice
that was adapted to EPA format under the previous interim rule. It is
estimated that there will be 12 responses per year per detergent for
each terminal. The on-customary business practice hourly burden per
terminal per month is about 0.01 hour. It is estimated that there might
be as many as 1,246 respondents; (2) The required calibration of
terminal equipment is already performed, however, the rule requires
that it be performed at least twice per year. The associated non-
customary business practice burden per response associated with this
calibration requirement is estimated at 0.21 hours, with 1,200
automated terminals participating. The startup burden per terminal to
read rule/instructions is estimated at 0.25 hr; (3) It is estimated
that 1,246 terminals conduct recordkeeping quality assurance on 15
occasions per year at 0.02 hr. per review; (4) Other requirements
require no hourly burden;
(d) Truckers who hand blend detergent: It is estimated that
truckers who hand blend detergent might do so on as many as 875
occasions annually, with approximately 0.03 hour per response and 100
total respondents annually for this requirement; (2) Other trucker
requirements are customary business practices;
(e) Retailers and wholesale purchaser-consumers: It is estimated
that retailers and wholesale purchaser-consumers of gasoline who also
dispense detergent-exempt aviation fuel or racing fuel will spend 0.55
hrs to label pumps. This is a one-time requirement for a total of 5,000
respondents.
The disaggregated cost estimates for this collection are as
follows:
(a) Additive manufacturers: (1) It is estimated that the 59
respondents will spend a total of $559,967 in 1996 and $697,882 in 1997
for recordkeeping involving the approximately 382 certifications that
will occur initially. This is reduced to $163,060/year in ensuing years
since it is estimated that 15 percent of the number of initially
certified additives will be certified annually after the program's
first year. For certification testing itself, there are no capital
costs; most of the additives tested will be tested in-house on existing
equipment already used as a customary business practice by these
manufacturers. Test costs for 1997 average $242,559 per party for 59
parties, and in 1996 average $210,921 per party for 59 parties. For
1998 and beyond, the cost is estimated to fall to $63,276 per party.
These parties will also spend about $4.86 per year for exemption
notices and will have a startup cost of about $4.80 in 1996 for a
quality assurance program that is otherwise a customary business
practice;
(b) Refiners and importers: It is estimated that 100 refiners and
importers of gasoline will pay $2,564 per year per party for voluntary
defense quality assurance;
(c) Terminals: The VAR records for terminals are expected to cost
each of 1,246 terminals about $2.28 per year beyond customary business
practice costs. Calibration requirements are expected to cost each of
1,200 terminals about $13 each beyond customary business practices with
a startup cost of $8 per respondent in 1996 for reviewing the changed
requirement. Record checks are expected to cost each terminal about
$8.00 per year;
(d) Truckers: If any truckers hand blend a large number of loads
per year, the cost per trucker could be as high as $691 per year. Other
costs are customary business practices;
(e) Retailers and wholesale purchaser-consumers: It is estimated
that retailers and wholesale purchaser-consumers of gasoline who also
dispense exempt aviation gas or racing gas will pay about $12.60 in the
first year for labelling their pumps and about $1 each year after for
the capital cost of purchasing the label.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR Ch. 15.
Send comments on the Agency's need for this information, the
accuracy of the provided burden estimates, and any suggested methods
for minimizing the respondent burden, including through the use of
automated collection techniques to the Director, Regulatory Information
Division, U.S. Environmental Protection Agency (Mail Code 2137), 401 M
Street, SW., Washington, DC 20460; and to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, DC
20503, marked ``Attention: Desk Officer for EPA.''
[[Page 35355]]
Include the ICR number in any correspondence.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to state, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more for
any 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.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments. The rule imposes no enforceable duties on any of these
governmental entities. Nothing in the program would significantly or
uniquely affect small governments. EPA has determined that this rule
contains Federal mandates that will result in expenditures of $100
million or more in any one year for the private sector. EPA believes
that the program represents the least costly, most cost-effective
approach to achieving the air quality goals of the proposed rule. EPA
has performed the required analyses under Executive Order 12866 which
contains identical analytical requirements. The reader is directed to
Section IX.A., Administrative Designation and Regulatory Analysis, for
further information regarding these analyses.
E. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is a ``major rule'' as defined by section 804(2) of the APA
as amended.
X. Electronic Copies of Rulemaking Documents
The preamble, the RIA, and regulatory language of this final rule
are available in the public docket as described under ``ADDRESSES''
above and are also available electronically on the Office of Air
Quality Planning and Standards (OAQPS) Technology Transfer network
Bulletin Board System (TTNBBS). Instructions for accessing TTNBBS and
downloading the relevant files are described below.
A. Technology Transfer Network Bulletin Board System (TTNBBS)
TTNBBS can be accessed using a dial-in telephone line (919-541-
5742) and a 1200, 2400, or 9600 bps modem (equipment up to 14.4 Kbps
can be accommodated). The parity of the modem should be set to N or
none, the data bits to 8, and the stop bits to 1. When first signing on
to the bulletin board, the user will be required to answer some basic
informational questions to register into the system. After registering,
proceed through the following options from a series of menus:
(T) Gateway to TTN Technical Areas (Bulletin Boards)
(M) OMS--Mobile Sources Information
(K) Rulemaking and Reporting
(3) Fuels
(4) Detergent Additives
At this point, the system will list all available files in the
chosen category in reverse chronological order with brief descriptions.
The following eight ``zip'' files are currently available:
DCA__CFP.ZIP (Preamble to the final rule on the Certification
Requirements for Deposit Control Additives)
DCA__CFR.ZIP (Regulatory text for the final rule on the Certification
Requirements for Deposit Control Additives)
DCA__RIAA.ZIP (Addendum to the Regulatory Impact Analysis)
DCA__RCN.ZIP (Notice to Reopen the Comment Period)
DCA__RIA.ZIP (Regulatory Impact Analysis)
DCA__1FP.ZIP (Preamble to the final rule on the Interim Requirements
for Deposit Control Additives)
DCA__IFR.ZIP (Regulatory text for the final rule on the Interim
Requirements for Deposit Control Additives)
DCA__PRE.ZIP (Preamble from the Notice of Proposed Rulemaking)
File information can be obtained from the ``READ.ME'' file. Choose
from the following options when prompted:
ownload, rotocol, xamine, ew, ist, elp or to
exit.
To download a file, e.g., filename.ZIP, the user needs to
choose a file transfer protocol appropriate for the user's computer
from the options listed on the terminal. The user's computer is then
ready to receive the file by invoking the user's resident file transfer
software. Programs and instructions for de-archiving compressed files
can be found under ystems Utilities from the top menu, under
rchivers/de-archivers. Please note that due to differences between
the software used to develop the document and the software into which
the document may be downloaded, changes in format, page length, etc.
may occur.
TTNBBS is available 24 hours a day, 7 days a week except Monday
morning from 8-12 EST, when the system is down for maintenance and
backup. For help in accessing the system, call the systems operator at
919-541-5384 in Research Triangle Park, North Carolina, during normal
business hours EST.
B. Internet
Rulemaking documents may be found on the internet as follow:
World Wide Web
http://www.epa.gov/omswww
FTP
ftp://ftp.epa.gov Then CD to the /pub/gopher/OMS/ directory
Gopher
gopher://gopher.epa.gov:70/11/Offices/Air/OMS
Alternatively, go to the main EPA gopher, and follow the menus:
gopher.epa.gov
EPA Offices and Regions
[[Page 35356]]
Office of Air and Radiation
Office of Mobile Sources
List of Subjects in 40 CFR Part 80
Environmental protection, Fuel additives, Gasoline detergent
additives, Gasoline, Incorporation by reference, Motor vehicle
pollution, Penalties, Reporting and recordkeeping requirements.
Dated: June 21, 1996.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, part 80 of title 40 of
the Code of Federal Regulations is amended as follows:
PART 80--[AMENDED]
1. The authority citation for part 80 continues to read as follows:
Authority: Sec. 114, 211 and 301(a) of the Clean Air Act as
amended (42 U.S.C. 7414, 7545, and 7601(a)).
2. Section 80.4 is revised to read as follows:
Sec. 80.4 Right of entry; tests and inspections.
The Administrator or his authorized representative, upon
presentation of appropriate credentials, shall have a right to enter
upon or through any refinery, retail outlet, wholesale purchaser-
consumer facility, or detergent manufacturer facility; or the premises
or property of any gasoline or detergent distributor, carrier, or
importer; or any place where gasoline or detergent is stored; and shall
have the right to make inspections, take samples, obtain information
and records, and conduct tests to determine compliance with the
requirements of this part.
3-4. Section 80.140 is amended by revising the definition of
``Detergent Blender'' and by adding definitions for ``Leaded Gasoline''
and ``Repeatability'', in alphabetical order, to read as follows:
Sec. 80.140 Definitions.
* * * * *
Detergent blender means any person who owns, leases, operates,
controls or supervises the blending operation of a detergent blending
facility, or imports detergent-additized gasoline or detergent-
additized post-refinery component.
* * * * *
Leaded gasoline means gasoline which is produced with the use of
any lead additive or which contains more than 0.05 gram of lead per
gallon or more than 0.005 gram of phosphorus per gallon.
* * * * *
Repeatability of a test method means the amount of random error
which is expected to affect the results obtained for a given test
substance, when the test is replicated by a single operator in a given
laboratory within a short period of time, using the same apparatus
under constant operating conditions. Quantitatively, it is the
difference between two such single results that would be exceeded in
the long run in only one out of twenty normal and correct replications
of the test method.
* * * * *
5. Section 80.141 is amended as follows:
a. Paragraphs (a) and (b), the second sentence of paragraph
(c)(1)(i), paragraphs (c)(1)(ii), (c)(2), (c)(3)(i), (d), and (e)(1),
the first sentence of paragraph (e)(2)(ii)(B), and the last sentence of
paragraph (g)(3) are revised.
b. Paragraph (c)(3)(iv) is added.
c. Paragraph (e)(2)(ii)(B)(1)(iii) is removed and reserved.
d. In paragraph (g)(1), the reference to paragraph (d)(2)(ii)(B) is
revised to (d)(3)(ii).
Sec. 80.141 Interim detergent gasoline program.
(a) Effective dates of requirements. (1) Until June 30, 1997, the
products listed in paragraphs (a)(1)(i) through (iii) of this section
must comply with either the interim program requirements described in
this section or the certification program requirements described in
Sec. 80.161. Beginning July 1, 1997, the listed products must comply
with the requirements in Sec. 80.161. These dates and requirements
apply to:
(i) All gasoline sold or transferred to a party who sells or
transfers gasoline to the ultimate consumer;
(ii) All additized post-refinery component (PRC); and
(iii) All detergent additives sold or transferred for use in
gasoline or PRC for compliance with the requirements of this subpart.
(2) Until July 31, 1997, all gasoline sold or transferred to the
ultimate consumer must contain detergent additive(s) meeting either the
interim requirements of this Sec. 80.141 or the certification program
requirements of Sec. 80.161. Beginning August 1, 1997, such gasoline
must contain detergent additive(s) meeting the certification
requirements of Sec. 80.161.
(b) Applicability of gasoline and PRC detergency requirement;
responsible parties. (1) Except as specifically exempted in
Sec. 80.160, the detergency requirements of this subpart apply to all
gasoline, whether intended for on-highway or nonroad use, including
conventional, reformulated, oxygenated, and leaded gasolines, as well
as the gasoline component of fuel mixtures of gasoline and alcohol
fuels, gasoline used as marine fuel, gasoline service accumulation fuel
(as described in Sec. 86.113-94(a)(1) of this chapter), the gasoline
component of fuel mixtures of gasoline and methanol used for service
accumulation in flexible fuel vehicles (as described in Sec. 86.113-
94(d) of this chapter), gasoline used for factory fill purposes, and
all additized PRC.
(2) Pursuant to paragraphs (c) through (f) of this section,
compliance with these requirements is the responsibility of parties who
directly or indirectly sell or dispense gasoline to the ultimate
consumer as well as parties who manufacture, supply, or transfer
detergent additives or detergent-additized post-refinery components.
(c) * * *
(1) * * *
(i) * * * Polymeric components may be reported as the product of
other chemical reactants, provided that the supporting data specified
in Sec. 80.162(b) is also reported for such components.
(ii) The weight and/or volume percent (as applicable) of each
component of the package, with variability in these amounts restricted
according to the provisions of paragraph (c)(2) of this section.
* * * * *
(2) Allowable variation in compositional data. (i) A single
detergent additive registration may contain no variation in the
identity of any of the detergent-active components identified pursuant
to paragraph (c)(1)(iii) of this section.
(ii) A single detergent additive registration may specify a range
of concentrations for identified detergent-active components, provided
that, if each such component were present in the detergent additive
package at the lower bound of its reported range of concentration, the
minimum recommended concentration reported in accordance with the
requirements of paragraph (c)(3) of this section would still provide
the deposit control effectiveness claimed by the detergent registrant.
(iii) The identity or concentration of non-detergent-active
components of the detergent additive package may vary under a single
registration, provided that the range of such variation is specified in
the registration, and that such variability does not reduce the deposit
control effectiveness of the additive package as compared with the
level of effectiveness claimed by the detergent registrant pursuant to
the requirements of paragraph (c)(3) of this section.
[[Page 35357]]
(iv) Except as provided in paragraph (c)(2)(v) of this section,
detergent additive packages which do not satisfy these restrictions
must be separately registered. EPA may disqualify an additive for use
in satisfying the requirements of this subpart if EPA determines that
the variability included within a given detergent additive registration
may reduce the deposit control effectiveness of the detergent package
such that it could invalidate the minimum recommended concentration
reported in accordance with the requirements of paragraph (c)(3) of
this section.
(v) A change in minimum concentration requirements resulting from a
modification of detergent additive composition shall not require a new
detergent additive registration or a change in existing registration
if:
(A) The modification is effected by a detergent blender only for
its own use or for the use of parties which are subsidiaries of, or
share common ownership with, the blender, and the modified detergent is
not sold or transferred to other parties; and
(B) The modification is a dilution of the additive for the purpose
of ensuring proper detergent flow in cold weather; and
(C) Gasoline is the only diluting agent used; and
(D) The diluted detergent is subsequently added to gasoline at a
rate that attains the detergent's registered minimum recommended
concentration, taking into account the dilution; and
(E) EPA is notified, either before or within seven days after the
dilution action, of the identity of the detergent, the identity of the
diluting material, the amount or percentage of the dilution, the change
in treat rate necessitated by the dilution, and the locations and time
period of diluted detergent usage. The notification shall be sent or
faxed to the address in Sec. 80.174(c).
(3) * * *
(i) The lower boundary of the recommended range of concentration
for the detergent additive package in gasoline, which the additive
manufacturer must report pursuant to the registration requirements in
Sec. 79.21(d) of this chapter, must equal or exceed the minimum
concentration which the manufacturer has determined to be necessary for
the control of deposits in the associated fuel type, pursuant to
paragraph (e) of this section. The minimum recommended concentration
shall be provided to EPA in units of gallons of detergent additive
package per thousand gallons of gasoline or PRC, reported to four
digits. This concentration is the lowest additive concentration (LAC)
referred to elsewhere in this subpart.
* * * * *
(iv) Once included in the registration for a detergent additive
package, the minimum concentration recommended by the detergent
manufacturer to detergent blenders and other users of the detergent
additive, pursuant to paragraph (c)(3)(ii) of this section, may not be
changed without first notifying EPA. The notification must be sent by
certified mail to the address specified in Sec. 80.174(b). Changes to
the minimum recommended concentration must be supported by available
test data pursuant to paragraph (c)(3)(iii) of this section.
(d) The rate at which a detergent blender treats gasoline with a
detergent additive package must be no less than the minimum recommended
concentration reported for the subject detergent additive pursuant to
paragraph (c)(3) of this section, except under the following
conditions:
(1) If a detergent blender believes that the minimum treat rate
recommended by the manufacturer of a detergent additive exceeds the
amount of detergent actually required for effective deposit control,
and possesses substantiating data consistent with the guidelines in
paragraph (e) of this section, then, upon informing EPA in writing of
these circumstances, the detergent blender may use the detergent at a
lower concentration.
(2) The notification to EPA must clearly specify the name of the
detergent product and its manufacturer, the concentration recommended
by the detergent manufacturer, and the lower concentration which the
detergent blender intends to use. The notification must also attest
that data are available to substantiate the deposit control
effectiveness of the detergent at the intended lower concentration. The
notification must be sent by certified mail to the address specified in
Sec. 80.174(b).
(3) At its discretion, EPA may require that the detergent blender
submit the test data purported to substantiate the claimed
effectiveness of the lower concentration of the detergent additive. EPA
may also require the manufacturer of the subject detergent additive to
submit test data substantiating the minimum recommended concentration
specified in the detergent additive registration. In either case, EPA
will send a letter to the appropriate party, and the supporting data
will be due to EPA within 30 days of receipt of EPA's letter.
(i) If the detergent blender fails to submit the required
supporting data to EPA in the allotted time period, or if EPA judges
the submitted data to be inadequate to support the detergent blender's
claim that the lower concentration provides a level of deposit control
consistent with the requirements of this section, then EPA will
disapprove the use of the detergent at the lower concentration.
Further, the detergent blender may be subject to applicable liabilities
and penalties pursuant to Secs. 80.156 and 80.159 for any gasoline or
PRC it has additized at the lower concentration.
(ii) If the detergent manufacturer fails to submit the required
test data to EPA within the allotted time period, EPA will proceed on
the assumption that data are not available to substantiate the minimum
recommended concentration specified in the detergent registration, and
the subject additive may be disqualified for use in complying with the
requirements of this subpart, pursuant to the procedures in paragraph
(g) of this section. The detergent manufacturer may also be subject to
applicable liabilities and penalties pursuant to Secs. 80.156 and
80.159.
(iii) If both parties submit the required information, EPA will
evaluate the quality and results of both sets of test data in relation
to each other and to industry-consensus test practices and standards,
in a manner consistent with the guidelines described in paragraph (e)
of this section. EPA will approve or disapprove the use of the
detergent at the lower concentration, and will inform both the
detergent blender and the detergent manufacturer of the results of its
analysis within 60 days of receipt of both sets of data.
(e) * * *
(1) CARB-based supporting test data. For detergent additives which
are certified by the California Air Resources Board (CARB) for use in
the state of California (pursuant to Title 13, section 2257 of the
California Code of Regulations), the CARB certification data
constitutes adequate support of the detergent's effectiveness under
this section, with the exception that CARB detergent certification data
specific to California Phase II reformulated gasoline (pursuant to
Title 13, Chapter 5, Article 1, Subarticle 2, California Code of
Regulations, Standards for Gasoline Sold Beginning March 1, 1996) will
not be considered adequate support for detergent effectiveness in
gasolines that do not conform to the compositional specifications for
California's Phase II reformulated gasoline. For CARB-based supporting
data to be used to demonstrate detergent performance, the minimum
recommended concentration reported in
[[Page 35358]]
the detergent additive registration must be no less than the
concentration of the detergent-active components reported in the
subject CARB detergent certification.
(2) * * *
(ii) * * *
(B) For demonstration of fuel injector and intake valve deposit
control performance, the tests specified in Secs. 80.165, or other
vehicle-based tests using generally accepted industry procedures and
standards, are preferred.* * *
* * * * *
(g) * * *
(3) * * * All correspondence regarding a disqualification must be
sent to the address specified in Sec. 80.174(b).
* * * * *
6. Section 80.155 is revised to read as follows:
Sec. 80.155 Interim detergent program controls and prohibitions.
(a)(1) No person shall sell, offer for sale, dispense, supply,
offer for supply, transport, or cause the transportation of gasoline to
the ultimate consumer for use in motor vehicles or in any off-road
engines (except as provided in Sec. 80.160), or to a gasoline retailer
or wholesale purchaser-consumer, and no person shall detergent-additize
gasoline, unless such gasoline is additized in conformity with the
requirements of Sec. 80.141. No person shall cause the presence of any
gasoline in the gasoline distribution system unless such gasoline is
additized in conformity with the requirements of Sec. 80.141.
(2) Gasoline has been additized in conformity with the requirements
of Sec. 80.141 when the detergent component satisfies the requirements
of Sec. 80.141 and when:
(i) The gasoline has been additized in conformity with the
detergent composition and purpose-in-use specifications of an
applicable detergent registered under 40 CFR part 79, and in accordance
with at least the minimum concentration specifications of that
detergent as registered under 40 CFR part 79 or as otherwise provided
under Sec. 80.141(d); or
(ii) The gasoline is composed of two or more commingled gasolines
and each component gasoline has been additized in conformity with the
detergent composition and purpose-in-use specifications of a detergent
registered under 40 CFR part 79, and in accordance with at least the
minimum concentration specifications of that detergent as registered
under 40 CFR part 79 or as otherwise provided under Sec. 80.141(d); or
(iii) The gasoline is composed of a gasoline commingled with a
post-refinery component (PRC), and both of these components have been
additized in conformity with the detergent composition and use
specifications of a detergent registered under 40 CFR part 79, and in
accordance with at least the minimum concentration specifications of
that detergent as registered under 40 CFR part 79 or as otherwise
provided under Sec. 80.141(d).
(b) No person shall blend detergent into gasoline or PRC unless
such person complies with the volumetric additive reconciliation
requirements of Sec. 80.157.
(c) No person shall sell, offer for sale, dispense, supply, offer
for supply, store, transport, or cause the transportation of any
gasoline, detergent, or detergent-additized PRC unless the product
transfer document for the gasoline, detergent or detergent-additized
PRC complies with the requirements of Sec. 80.158.
(d) No person shall refine, import, manufacture, sell, offer for
sale, dispense, supply, offer for supply, store, transport, or cause
the transportation of any detergent that is to be used as a component
of detergent-additized gasoline or detergent-additized PRC, unless such
detergent conforms with the composition specifications of a detergent
registered under 40 CFR part 79 and the detergent otherwise complies
with the requirements of Sec. 80.141. No person shall cause the
presence of any detergent in the detergent, PRC, or gasoline
distribution systems unless such detergent complies with the
requirements of Sec. 80.141.
(e)(1) No person shall sell, offer for sale, dispense, supply,
offer for supply, transport, or cause the transportation of detergent-
additized PRC, unless the PRC has been additized in conformity with the
requirements of Sec. 80.141. No person shall cause the presence in the
PRC or gasoline distribution systems of any detergent-additized PRC
that fails to conform to the requirements of Sec. 80.141.
(2) PRC has been additized in conformity with the requirements of
Sec. 80.141 when the detergent component satisfies the requirements of
Sec. 80.141 and:
(i) The PRC has been additized in accordance with the detergent
composition and use specifications of a detergent registered under 40
CFR part 79, and in accordance with at least the minimum concentration
specifications of that detergent as registered under 40 CFR part 79 or
as otherwise provided under Sec. 80.141(d); or
(ii) The PRC is composed of two or more commingled PRCs, and each
component has been additized in accordance with the detergent
composition and use specifications of a detergent registered under 49
CFR part 79, and in accordance with at least the minimum concentration
specifications of that detergent as registered under 40 CFR part 79 or
as otherwise provided under Sec. 80.141(d).
7. Section 80.156 is amended by revising paragraphs (a)(1)(ii),
(a)(2), introductory text, (a)(2)(ii), (a)(3), introductory text,
(a)(3)(ii), (a)(4), (a)(5), introductory text, (c)(1), introductory
text, (c)(1)(i), (c)(3), (c)(4), and by adding paragraphs (c)(5)
through (c)(8) to read as follows:
Sec. 80.156 Liability for violations of the interim detergent program
controls and prohibitions.
(a) * * *
(1) * * *
(ii) Each gasoline refiner, importer, distributor, reseller,
retailer, wholesale purchaser-consumer, oxygenate blender, detergent
manufacturer, distributor, or blender, who refined, imported,
manufactured, sold, offered for sale, dispensed, supplied, offered for
supply, stored, detergent additized, transported, or caused the
transportation of the detergent-additized gasoline (or the base
gasoline component, the detergent component, or the detergent-additized
post-refinery component of the gasoline) that is in violation, and each
such party that caused the gasoline that is in violation to be present
in the gasoline distribution system; and
* * * * *
(2) Post-refinery component non-conformity. Where detergent-
additized PRC contained in any storage tank at any facility owned,
leased, operated, controlled or supervised by any gasoline refiner,
importer, carrier, distributor, reseller, retailer, wholesale
purchaser-consumer, oxygenate blender, detergent manufacturer, carrier,
distributor, or blender, is found in violation of the prohibitions
specified in Sec. 80.155(e), the following persons shall be deemed in
violation:
(i) * * *
(ii) Each gasoline refiner, importer, distributor, reseller,
retailer, wholesale-purchaser consumer, oxygenate blender, detergent
manufacturer, distributor, or blender, who sold, offered for sale,
dispensed, supplied, offered for supply, stored, detergent additized,
transported, or caused the transportation of the detergent-additized
PRC (or the detergent component of the PRC) that is in violation, and
each such party that caused the PRC that is in violation to be present
in the PRC or gasoline distribution systems; and
* * * * *
(3) Detergent non-conformity. Where the detergent (prior to
additization)
[[Page 35359]]
contained in any storage tank or container found at any facility owned,
leased, operated, controlled or supervised by any gasoline refiner,
importer, carrier, distributor, reseller, retailer, wholesale
purchaser-consumer, oxygenate blender, detergent manufacturer, carrier,
distributor, or blender, is found in violation of the prohibitions
specified in Sec. 80.155(d), the following persons shall be deemed in
violation:
(i) * * *
(ii) Each gasoline refiner, importer, distributor, reseller,
retailer, wholesale purchaser-consumer, oxygenate blender, detergent
manufacturer, distributor, or blender, who sold, offered for sale,
dispensed, supplied, offered for supply, stored, transported, or caused
the transportation of the detergent that is in violation, and each such
party that caused the detergent that is in violation to be present in
the detergent, gasoline, or PRC distribution systems; and
* * * * *
(4) Volumetric additive reconciliation. Where a violation of the
volumetric additive reconciliation requirements established by
Sec. 80.155(b) has occurred, the following persons shall be deemed in
violation:
(i) Each detergent blender who owns, leases, operates, controls or
supervises the facility (including, but not limited to, a truck or
individual storage tank) where the violation has occurred; and
(ii) Each gasoline refiner, importer, carrier, distributor,
reseller, retailer, wholesale purchaser-consumer, or oxygenate blender,
and each detergent manufacturer, carrier, distributor, or blender, who
refined, imported, manufactured, sold, offered for sale, dispensed,
supplied, offered for supply, stored, transported, or caused the
transportation of the detergent-additized gasoline, the base gasoline
component, the detergent component, or the detergent-additized post-
refinery component, of the gasoline that is in violation, provided that
the EPA demonstrates, by reasonably specific showings by direct or
circumstantial evidence, that such person caused the violation.
(5) Product transfer document. Where a violation of Sec. 80.155(c)
is found at a facility owned, leased, operated, controlled, or
supervised by any gasoline refiner, importer, carrier, distributor,
reseller, retailer, wholesale purchaser-consumer, oxygenate blender,
detergent manufacturer, carrier, distributor, or blender, the following
persons shall be deemed in violation:
* * * * *
(c) Defenses. (1) In any case in which a gasoline refiner,
importer, distributor, carrier, reseller, retailer, wholesale-purchaser
consumer, oxygenate blender, detergent distributor, carrier, or
blender, is in violation of any of the prohibitions of Sec. 80.155,
pursuant to paragraphs (a) or (b) of this section as applicable, the
regulated party shall be deemed not in violation if it can demonstrate:
(i) That the violation was not caused by the regulated party or its
employee or agent (unless otherwise provided in this paragraph (c));
* * * * *
(3) Detergent blender. In any case in which a detergent blender is
liable for violating any of the prohibitions of Sec. 80.155, the
detergent blender shall not be deemed in violation if it can
demonstrate, in addition to the defense requirements stated in
paragraph (c)(1) of this section, the following:
(i) That it obtained or supplied, as appropriate, prior to the
detergent blending, accurate written instructions from the detergent
manufacturer or other party with knowledge of such instructions,
specifying the detergent's minimum recommended concentration (lowest
additive concentration) pursuant to Sec. 80.141(c)(3) and, if
applicable, the limitations of this concentration for use in leaded
product.
(ii) That it has implemented a quality assurance program that
includes, but is not limited to, a periodic review of its supporting
product transfer and volume measurement documents to confirm the
correctness of its product transfer and volumetric additive
reconciliation documents created for all products it additized.
(4) Detergent manufacturer--(i) Presumptive liability affirmative
defense. Notwithstanding the provisions of paragraph (c)(1) of this
section, in any case in which a detergent manufacturer is liable for
violating any of the prohibitions of Sec. 80.155, the detergent
manufacturer shall be deemed not in violation if it can demonstrate
each of the following:
(A) Product transfer documents which account for the detergent
component of the product in violation and which indicate that such
detergent satisfied all relevant requirements when it left the
detergent manufacturer's control; and
(B) Written blending instructions which, pursuant to
Sec. 80.141(c)(3)(ii), were supplied by the detergent manufacturer to
its customer who purchased or obtained from the manufacturer the
detergent component of the product determined to be in violation. The
written blending instructions must have been supplied by the
manufacturer prior to the customer's use or sale of the detergent. The
instructions must accurately identify the minimum recommended
concentration (lowest additive concentration) specified in the
detergent's 40 CFR part 79 registration, and must also accurately
identify if the detergent, at that concentration, is only registered as
effective for use in leaded gasoline.
(C) If the detergent batch used in the noncomplying product was
produced less than one year before the manufacturer was notified by EPA
of the possible violation, then the manufacturer must provide FTIR or
other test results for the batch of detergent used in the noncomplying
product, performed in accordance with the detergent testing procedure
submitted by the manufacturer, or available for submission, pursuant to
Sec. 80.141(f).
(1) The analysis may have been conducted on the subject detergent
batch at the time it was manufactured, or may be conducted on a sample
of that batch which the manufacturer retained for such purpose at the
time the batch was manufactured.
(2) The test results must accurately establish that, when it left
the manufacturer's control, the detergent component of the product
determined to be in violation was in conformity with the chemical
composition and concentration specifications reported pursuant to
Sec. 80.141(c)(1);
(D) If the detergent batch used in the noncomplying product was
produced more than one year prior to the manufacturer's notification by
EPA of the possible violation, then the manufacturer must provide
either:
(1) Test results for the batch in question as specified in the
paragraph (c)(4)(i)(C) of this section; or
(2) The following materials:
(i) Documentation of the measured viscosity, density, and basic
nitrogen content of the detergent batch in question, or any other such
physical parameters which the manufacturer normally uses to ensure
production quality control, which establishes conformity with the
manufacturer's quality control standards for such parameters; and
(ii) If the detergent registration identifies polymeric
component(s) of the detergent package as the product(s) of other
chemical reactants, documentation that the reagents used to synthesize
the detergent batch in question were the same as those specified in the
registration and that they met the manufacturer's normal acceptance
criteria for such reagents, reported pursuant to Sec. 80.162(b)(1).
[[Page 35360]]
(ii) Detergent manufacturer causation liability. In any case in
which a detergent manufacturer is liable for a violation of
Sec. 80.155, and the manufacturer establishes an affirmative defense to
such liability pursuant to paragraph (c)(4)(i) of this section, the
detergent manufacturer will nonetheless be deemed liable for the
violation of Sec. 80.155 if EPA can demonstrate, by reasonably specific
showings by direct or circumstantial evidence, that the detergent
manufacturer caused the violation.
(5) Defense against liability where more than one party may be
liable for VAR violations. In any case in which a party is
presumptively or vicariously liable for a violation of Sec. 80.155 due
to a failure to meet the VAR requirements Sec. 80.157, except for the
VAR record requirements pursuant to Sec. 80.157(g), such party shall
not be deemed liable if it can establish the following:
(i) Prior to the violation it had entered into a written contract
with another potentially liable detergent blender party (``the assuming
party''), under which that other party assumed legal responsibility for
fulfilling the VAR requirement that had been violated;
(ii) The contract included reasonable oversight provisions to
ensure that the assuming party fulfilled its VAR responsibilities
(including, but not limited to, periodic review of VAR records) and the
oversight provision was actually implemented by the party raising the
defense;
(iii) The assuming party is fiscally sound and able to pay its
penalty for the VAR violation; and
(iv) The employees or agents of the party raising the defense did
not cause the violation.
(6) Defense to liability for gasoline non-conformity violations
caused solely by the addition of misadditized ethanol or other PRC to
the gasoline. In any case in which a party is presumptively or
vicariously liable for a gasoline non-conformity violation of
Sec. 80.155(a) caused solely by another party's addition of
misadditized ethanol or other PRC to the gasoline, the former party
shall not be deemed liable for the violation provided that it can
establish that is has fulfilled the requirements of paragraphs
(c)(1)(i) and (ii) of this section.
(7) Detergent tank transitioning defenses. The commingling of two
detergents in the same detergent storage tank will not be deemed to
violate or cause violations of any of the provisions of this subpart,
provided the following conditions are met:
(i) The commingling must occur during a legitimate detergent
transitioning event, i.e., a shift from the use of one detergent to
another through the delivery of the new detergent into the same tank
that contains the original detergent; and
(ii) If the new detergent is restricted to use in leaded gasoline,
then such restriction must be applied to the combined detergents; and
(iii) The commingling event must be documented, either on the VAR
formula record or on attached supporting records; and
(iv) Notwithstanding any contrary provisions in Sec. 80.157, a VAR
formula record must be created for the combined detergents. The VAR
compliance period must begin no later than the time of the commingling
event. However, at the blender's option, the compliance period may
begin earlier, thus including use of the uncombined original detergent
within the same period, provided that the 31-day limitation pursuant to
Sec. 80.157(a)(6) is not exceeded; and
(v) The VAR formula record must also satisfy the requirements in
one of the following paragraphs (c)(7)(v)(A) through (C) of this
section, whichever applies to the commingling event. If neither
paragraph (c)(7)(v)(A) nor (B) of this section initially applies, then
the blender may drain and subsequently redeliver the original detergent
into the tank in restricted amounts, in order to meet the conditions of
paragraph (c)(7)(v)(A) or (B) of this section. Otherwise, the blender
must comply with paragraph (c)(7)(v)(C) of this section.
(A) If both detergents have the same LAC, and the original
detergent accounts for no more than 20 percent of the tank's total
delivered volume after addition of the new detergent, then the VAR
formula record is required to identify only the use of the new
detergent.
(B) If the two detergents have different LACs and the original
detergent accounts for 10 percent or less of the tank's total delivered
volume after addition of the new detergent, then the VAR formula record
is required to identify only the use of the new detergent, and must
attain the LAC of the new detergent. If the original detergent's LAC is
greater than that of the new detergent, then the compliance period may
begin earlier than the date of the commingling event (pursuant to
paragraph (c)(7)(iv) of this section) only if the original detergent
does not exceed 10 percent of the total detergent used during the
compliance period.
(C) If neither of the preceding paragraphs (c)(7)(v)(A) or (B) of
this section applies, then the VAR formula record must identify both of
the commingled detergents, and must use and attain the higher LAC of
the two detergents. Once the commingled detergent has been depleted by
an amount equal to the volume of the original detergent in the tank at
the time the new detergent was added, subsequent VAR formula records
must identify and use the LAC of only the new detergent.
(8) Defense to liability for noncompliance with leaded-only use
restrictions. A party shall not be deemed liable for violations of
Sec. 80.155(a) or (e) caused solely by the additization or use of
gasoline or PRC in violation of leaded-only use restrictions, provided
that the conditions specified in Sec. 80.169(c)(9) are met.
8. Section 80.157 is amended by revising the introductory text and
paragraphs (a) and (b), by revising paragraphs (d), (e), and (f) and
redesignating them as paragraphs (e), (f), and (g), and by adding a new
paragraph (d), to read as follows:
Sec. 80.157 Volumetric additive reconciliation (VAR), equipment
calibration, and recordkeeping requirements under the interim detergent
program.
This section contains requirements for automated detergent blending
facilities and hand-blending detergent facilities. All gasolines and
all PRC intended for use in gasoline must be additized, unless
otherwise noted in supporting VAR records, and must be accounted for in
VAR records. The VAR reconciliation standard is attained under this
section when the actual concentration of detergent used per VAR formula
record equals or exceeds the lowest additive concentration (LAC)
specified for that detergent pursuant to Sec. 80.141(c)(3), or, if
appropriate, under Sec. 80.141(d). A separate VAR formula record must
be created for leaded gasoline additized with a detergent registered
for use only with leaded gasoline, or used at a concentration that is
registered as effective for leaded gasoline only. Detergent so used
must be accurately and separately measured, either through the use of a
separate storage tank, a separate meter, or some other measurement
system that is able to accurately distinguish its use. Recorded volumes
of gasoline, detergent, and PRC must be expressed to the nearest gallon
(or smaller units), except that detergent volumes of five gallons or
less must be expressed to the nearest tenth of a gallon (or smaller
units). However, if the blender's equipment cannot accurately measure
to the nearest tenth of a gallon, then such volumes must be rounded
downward to the next lower gallon. PRC included in the reconciliation
must be
[[Page 35361]]
identified. Each VAR formula record must also contain the following
information:
(a) Automated blending facilities. In the case of an automated
detergent blending facility, for each VAR period, for each detergent
storage system and each detergent in that storage system, the following
must be recorded:
(1) The manufacturer and commercial identifying name of the
detergent additive package being reconciled, and the LAC specified in
the detergent registration for use with the applicable type of gasoline
(i.e., unleaded or leaded). The LAC must be expressed in terms of
gallons of detergent per thousand gallons of gasoline or PRC, and
expressed to four digits. If the specified LAC is only effective for
use with leaded gasoline, the record must so indicate. If the detergent
storage system which is the subject of the VAR formula record is a
proprietary system under the control of a customer, this fact must be
indicated on the record.
(2) The total volume of detergent blended into gasoline and PRC, in
accordance with one of the following paragraphs, as applicable.
(i) For a facility which uses in-line meters to measure detergent
usage, the total volume of detergent measured, together with supporting
data which includes one of the following: the beginning and ending
meter readings for each meter being measured, the metered batch volume
measurements for each meter being measured, or other comparable metered
measurements. The supporting data may be supplied on the VAR formula
record or in the form of computer printouts or other comparable VAR
supporting documentation.
(ii) For a facility which uses a gauge to measure the inventory of
the detergent storage tank, the total volume of detergent shall be
calculated from the following equation:
Detergent Volume=(A)-(B)+(C)-(D)
Where:
A=Initial detergent inventory of the tank
B=Final detergent inventory of the tank
C=Sum of any additions to detergent inventory
D=Sum of any withdrawals from detergent inventory for purposes other
than the additization of gasoline or PRC.
The value of each variable in this equation must be separately
recorded on the VAR formula record. In addition, a list of each
detergent addition included in variable C and a list of each detergent
withdrawal included in variable D must be provided, either on the
formula record or as VAR supporting documentation.
(3) The total volume of gasoline plus PRC to which detergent has
been added, together with supporting data which includes one of the
following: The beginning and ending meter measurements for each meter
being measured, the metered batch volume measurements for each meter
being measured, or other comparable metered measurements. The
supporting data may be supplied on the VAR formula record or in the
form of computer printouts or other comparable VAR supporting
documentation. If gasoline has intentionally been overadditized in
anticipation of the later addition of unadditized PRC, then the total
volume of gasoline plus PRC recorded must include the expected amount
of unadditized PRC to be added later. In addition, the amount of
gasoline which was overadditized for this purpose must be specified.
(4) The actual detergent concentration, calculated as the total
volume of detergent added (pursuant to paragraph (a)(2) of this
section), divided by the total volume of gasoline plus PRC (pursuant to
paragraph (a)(3) of this section). The concentration must be calculated
and recorded to four digits.
(5) A list of each detergent concentration rate initially set for
the detergent that is the subject of the VAR record, together with the
date and description of each adjustment to any initially set
concentration. The concentration adjustment information may be supplied
on the VAR formula record or in the form of computer printouts or other
comparable VAR supporting documentation. No concentration setting is
permitted below the applicable LAC, except as may be modified pursuant
to Sec. 80.141(d) or as described in paragraph (a)(7) of this section.
(6) The dates of the VAR period, which shall be no longer than
thirty-one days. If the VAR period is contemporaneous with a calendar
month, then specifying the month will fulfill this requirement; if not,
then the beginning and ending dates and times of the VAR period must be
listed. The times may be supplied on the VAR formula record or in
supporting documentation. Any adjustment to any detergent concentration
rate more than 10 percent over the concentration rate initially set in
the VAR period shall terminate that VAR period and initiate a new VAR
period, except as provided in paragraph (a)(7) of this section.
(7) The concentration setting for a detergent injector may be set
below the applicable LAC, or it may be adjusted more than 10 percent
above the concentration initially set in the VAR period without
terminating that VAR period, provided that:
(i) The purpose of the change is to correct a batch misadditization
prior to the end of the VAR period and prior to the transfer of the
batch to another party, or to correct an equipment malfunction; and
(ii) The concentration is immediately returned after the correction
to a concentration that fulfills the requirements of paragraphs (a)(5)
and (6) of this section; and
(iii) The blender creates and maintains documentation establishing
the date and adjustments of the correction; and
(iv) If the correction is initiated only to rectify an equipment
malfunction, and the amount of detergent used in this procedure is not
added to gasoline in the compliance period, then this amount is
subtracted from the detergent volume listed on the VAR formula record.
(8) If unadditized gasoline has been transferred from the facility,
other than bulk transfers from refineries or pipelines to non-retail
outlets or non-WPC facilities, the total amount of such gasoline must
be specified.
(b) Non-automated facilities. In the case of a facility in which
hand blending or any other non-automated method is used to blend
detergent, for each detergent and for each batch of gasoline and each
batch of PRC to which the detergent is being added, the following shall
be recorded:
(1) The manufacturer and commercial identifying name of the
detergent additive package being reconciled, and the LAC specified in
the detergent registration for use with the applicable type of gasoline
(i.e., unleaded or leaded). The LAC must be expressed in terms of
gallons of detergent per thousand gallons of gasoline or PRC, and
expressed to four digits. If the specified LAC is only effective for
use with leaded gasoline, the record must so indicate.
(2) The date of the additization that is the subject of the VAR
formula record.
(3) The volume of added detergent.
(4) The volume of the gasoline and/or PRC to which the detergent
has been added. If gasoline has intentionally been overadditized in
anticipation of the later addition of unadditized PRC, then the total
volume of gasoline plus PRC recorded must include the expected amount
of unadditized PRC to be added later. In addition, the amount of
gasoline which was overadditized for this purpose must be specified.
(5) The brand (if known), grade, and leaded/unleaded status of
gasoline, and/or the type of PRC.
[[Page 35362]]
(6) The actual detergent concentration, calculated as the volume of
added detergent (pursuant to paragraph (b)(3) of this section), divided
by the volume of gasoline and/or PRC (pursuant to paragraph (b)(4) of
this section). The concentration must be calculated and recorded to
four digits.
* * * * *
(d) Electronically-generated VAR formula and supporting records.
(1) Electronically-generated records are acceptable for VAR formula
records and supporting documentation (including PTDs), provided that
they are complete, accessible, and easily readable. VAR formula records
must also be stored with access and audit security, which must restrict
to a limited number of specified people those who have the ability to
alter or delete the records. In addition, parties maintaining records
electronically must make available for EPA use the hardware and
software necessary to review the records.
(2) Electronically-generated VAR formula records may use an
electronic user identification code to satisfy the signature
requirements of paragraph (c)(1) of this section, provided that:
(i) The use of the ID is limited to the record creator; and
(ii) A paper record is maintained, which is signed and dated by the
VAR formula record creator, acknowledging that the use of that
particular user ID on a VAR formula record is equivalent to his/her
signature on the document.
(e) Automated detergent blenders must calibrate their detergent
equipment once in each calendar half year, with the acceptable
calibrations being no less than one hundred twenty days apart.
Equipment recalibration is also required each time the detergent
package is changed, unless written documentation indicates that the new
detergent package has the same viscosity as the previous detergent
package. Detergent package change calibrations may be used to satisfy
the semiannual requirement provided that the calibrations occur in the
appropriate half calendar year and are no less than one hundred twenty
days apart.
(f) The following VAR supporting documentation must also be created
and maintained:
(1) For all automated detergent blending facilities, documentation
reflecting performance of the calibrations required by paragraph (e) of
this section, and any associated adjustments of the automated detergent
equipment;
(2) For all hand-blending facilities which are terminals, a record
specifying, for each calendar month, the total volume in gallons of
transfers from the facility of unadditized base gasoline;
(3) For all detergent blending facilities, product transfer
documents for all gasoline, detergent and detergent-additized PRC
transferred into or out of the facility; in addition, bills of lading,
transfer, or sale for all unadditized PRC transferred into the
facility;
(4) For all automated detergent blending facilities, documentation
establishing the brands (if known) and grades of the gasoline which is
the subject of the VAR formula record;
(5) For all hand blending detergent blenders, the documentation, if
in the party's possession, supporting the volumes of gasoline, PRC, and
detergent reported on the VAR formula record; and
(6) For all detergent blending facilities, documentation
establishing the curing of a batch or amount of misadditized gasoline
or PRC, or the curing of a use restriction on the additized gasoline or
PRC, and providing at least the following information: the date of the
curing procedure; the problem that was corrected; the amount, name, and
LAC of the original detergent used; the amount, name, and LAC of the
added curing detergent; and the actual detergent concentration attained
in, and the volume of, the total cured product.
(g) Document retention and availability. All detergent blenders
shall retain the documents required under this section for a period of
five years from the date the VAR formula records and supporting
documentation were created, and shall deliver them upon request to the
EPA Administrator or the Administrator's authorized representative.
(1) Except as provided in paragraph (g)(3) of this section,
automated detergent blender facilities and hand-blender facilities
which are terminals, which physically blend detergent into gasoline,
must make immediately available to EPA, upon request, the preceding
twelve months of VAR formula records plus the preceding two months of
VAR supporting documentation.
(2) Except as provided in paragraph (g)(3) of this section, other
hand-blending detergent facilities which physically blend detergent
into gasoline must make immediately available to EPA, upon request, the
preceding two months of VAR formula records and VAR supporting
documentation.
(3) Facilities which have centrally maintained records at other
locations, or have customers who maintain their own records at other
locations for their proprietary detergent systems, and which can
document this fact to the Agency, may have until the start of the next
business day after the request to supply VAR supporting documentation,
or longer if approved by the Agency.
(4) In this paragraph (g) of this section, the term immediately
available means that the records must be provided, electronically or
otherwise, within approximately one hour of EPA's request, or within a
longer time frame as approved by EPA.
9. Section 80.158 is revised to read as follows:
Sec. 80.158 Product transfer documents (PTDs).
(a) Contents. For each occasion when any gasoline refiner,
importer, reseller, distributor, carrier, retailer, wholesale
purchaser-consumer, oxygenate blender, detergent manufacturer,
distributor, carrier, or blender, transfers custody or title to any
gasoline, detergent, or detergent-additized PRC other than when
detergent-additized gasoline is sold or dispensed at a retail outlet or
wholesale purchaser-consumer facility to the ultimate consumer, the
transferor shall provide to the transferee, and the transferee shall
acquire from the transferor, documents which accurately include the
following information:
(1) The names and addresses of the transferee and transferor; the
address requirement may be fulfilled, in the alternative, through
separate documentation which establishes said addresses and is
maintained by the parties and made available to EPA for the same length
of time as required for the PTDs, provided that the normal business
procedure of these parties is not to identify addresses on PTDs.
(2) The date of the transfer.
(3) The volume of product transferred.
(4)(i) The identity of the product being transferred (i.e., its
identity as base gasoline, detergent, detergent-additized gasoline, or
specified detergent-additized oxygenate or detergent-additized gasoline
blending stock that comprises a detergent-additized PRC). PTDs for
detergent-additized gasoline or PRC are not required to identify the
particular detergent used to additize the product.
(ii) If the product being transferred consists of two or more
different types of product subject to this regulation, i.e., base
gasoline, detergent-additized gasoline, or specified detergent-
additized PRC, then the PTD for the commingled product must identify
each such type of component contained in the commingled product.
(5) If the product being transferred is gasoline to which an
oxygenate or a PRC has been added, then the PTD for the
[[Page 35363]]
gasoline must identify the oxygenate or PRC. The PTDs for commingled,
additized gasolines must identify all the oxygenates and PRCs added to
either component.
(6) If the product being transferred is base gasoline, then in
addition to the base gasoline identification, the following warning
must be stated on the PTD: ``Not for sale to the ultimate consumer''.
If, pursuant to Sec. 80.160(a), the product being transferred is exempt
base gasoline to be used for research, development, or test purposes
only, the following warning must also be stated on the PTD: ``For use
in research, development, and test programs only.''
(7) The name of the detergent additive as reported in its
registration must be used to identify the detergent package on its PTD.
(8) If the product being transferred is leaded gasoline, then the
PTD must disclose that the product contains lead and/or phosphorous, as
applicable.
(9) If the product being transferred is detergent that is only
authorized for the control of carburetor deposits, then the following
must be stated on the detergent's transfer document: ``For use with
leaded gasoline only.''
(10) If the product being transferred is detergent-additized
gasoline that has been overadditized in anticipation of the later (or
earlier) addition of PRC, then the PTD must include a statement that
the product has been overadditized to account for a specified volume in
gallons, or a specified percentage of the product's total volume, of
additional, specified PRC.
(b) Gasoline may not be additized with a detergent authorized only
for the control of carburetor deposits and whose product transfer
document states ``For use with leaded gasoline only'', and gasoline may
not be additized at the lower concentration specified for a detergent
authorized at a lower concentration for the control of carburetor
deposits only, unless the product transfer document for the gasoline to
be additized identifies it as leaded gasoline.
(c) Use of product codes and other non-regulatory language. (1)
Product codes and other non-regulatory language may not be used as a
substitute for the specified PTD warning language specified in
paragraph (a)(6) of this section for base gasoline, except that:
(i) The specified warning language may be omitted for bulk
transfers of base gasoline from a refinery to a pipeline if there is a
prior written agreement between the parties specifying that all such
gasoline is unadditized and will not be transferred to the ultimate
consumer;
(ii) Product codes may be used as a substitute for the specified
warning language provided that the PTD is an electronic data
interchange (EDI) document being used solely for the transfer of title
to the base gasoline, and provided that the product codes otherwise
comply with the requirements of this section.
(2) Product codes and other language not specified in this section
may otherwise be used to comply with PTD information requirements,
provided that they are clear, accurate, and not misleading.
(3) If product codes are used, they must be standardized throughout
the distribution system in which they are used, and downstream parties
must be informed of their full meaning.
(d) PTD exemption for small transfers of additized gasoline.
Transfers of additized gasoline are exempt from the PTD requirements of
this section provided all the following conditions are followed:
(1) The product is being transferred by a distributor who is not
the product's detergent blender; and
(2) The recipient is a wholesale purchaser-consumer (WPC) or other
ultimate consumer of gasoline, for its own use only or for that of its
agents or employees; and
(3) The volume of additized gasoline being transferred is not
greater than 550 gallons.
(e) Recordkeeping period. Any person creating, providing or
acquiring product transfer documentation for gasoline, detergent, or
detergent-additized PRC, except as provided in paragraph (d) of this
section, shall retain the documents required by this section for a
period of five years from the date the product transfer documentation
was created, received or transferred, as applicable, and shall deliver
such documents to EPA upon request. WPCs are not required to retain
PTDs of additized gasoline received by them.
10. Section 80.160 is revised to read as follows:
Sec. 80.160 Exemptions.
(a) Research, development, and testing exemptions. Any detergent
that is either in a research, development, or test status, or is sold
to petroleum, automobile, engine, or component manufacturers for
research, development, or test purposes, or any gasoline to be used by,
or under the control of, petroleum, additive, automobile, engine, or
component manufacturers for research, development, or test purposes, is
exempted from the provisions of the interim detergent program, provided
that:
(1) The detergent (or fuel containing the detergent), or the
gasoline, is kept segregated from non-exempt product, and the party
possessing the product maintains documentation identifying the product
as research, development, or testing detergent or fuel, as applicable,
and stating that it is to be used only for research, development, or
testing purposes; and
(2) The detergent (or fuel containing the detergent), or the
gasoline, is not sold, dispensed, or transferred, or offered for sale,
dispensing, or transfer from a retail outlet. It shall also not be
sold, dispensed, or transferred, or offered for sale, dispensing, or
transfer from a wholesale purchaser-consumer facility, unless such
facility is associated with detergent, fuel, automotive, or engine
research, development or testing; and
(3) The party using the product for research, development, or
testing purposes, or the party sponsoring this usage, notifies the EPA,
on at least an annual basis and prior to the use of the product, of the
purpose(s) of the program(s) in which the product will be used and the
anticipated volume of the product to be used. The information must be
submitted to the address or fax number provided in Sec. 80.174(c).
(b) Racing fuel and aviation fuel exemptions. Any fuel that is
refined, sold, dispensed, transferred, or offered for sale, dispensing,
or transfer as automotive racing fuel or as aircraft engine fuel, is
exempted from the provisions of this subpart, provided that:
(1) The fuel is kept segregated from non-exempt fuel, and the party
possessing the fuel for the purposes of refining, selling, dispensing,
transferring, or offering for sale, dispensing, or transfer as
automotive racing fuel or as aircraft engine fuel, maintains
documentation identifying the product as racing fuel, restricted for
non-highway use in racing motor vehicles, or as aviation fuel,
restricted for use in aircraft, as applicable;
(2) Each pump stand at a regulated party's facility, from which
such fuel is dispensed, is labeled with the applicable fuel
identification and use restrictions described in paragraph (b)(1) of
this section; and
(3) The fuel is not sold, dispensed, transferred, or offered for
sale, dispensing, or transfer for highway use in a motor vehicle.
(c) California gasoline exemptions. (1) Gasoline or PRC which is
additized in the state of California is exempt from
[[Page 35364]]
the VAR provisions in Secs. 80.155(b) and (e) and 80.157, provided
that:
(i) For all such gasoline or PRC, whether intended for sale within
or outside of California, records of the type required for California
gasoline (specified in title 13, California Code of Regulations,
section 2257) are maintained; and
(ii) Such records, with the exception of daily additization
records, are maintained for a period of five years from the date they
were created and are delivered to EPA upon request.
(2) Gasoline or PRC that is transferred and/or sold solely within
the state of California is exempt from the PTD provisions of the
interim detergent program, specified in Secs. 80.155(c) and 80.158.
(3) Nothing in this paragraph (c) exempts such gasoline or PRC from
the requirements of Sec. 80.155(a) and (e), as applicable. EPA will
base its determination of California gasoline's conformity with the
detergent's LAC on the additization records required by CARB, or
records of the same type.
11. Subpart G is further amended by adding new Secs. 80.161 through
80.173, to read as follows:
Sec. 80.161 Detergent additive certification program.
(a) Effective dates and applicability of requirements. (1) As of
July 1, 1997:
(i) Detergent additives for the control of port fuel injector
deposits (PFID) and/or intake valve deposits (IVD) in gasoline engines
may not be transferred or sold for use in compliance with this subpart
unless such additives have been certified according to the requirements
of this section.
(ii) Except as provided in Sec. 80.169(c)(8), PFID and IVD control
additives may not be added to gasoline or post-refinery component (PRC)
for compliance with this subpart unless such additives have been
certified according to the requirements of this section.
(iii) Gasoline may not be sold or transferred to a party who sells
or transfers gasoline to the ultimate consumer unless such gasoline
contains detergent additives which have been certified according to the
requirements of this section.
(2) Beginning August 1, 1997, all gasoline sold or transferred to
the ultimate consumer must contain detergent additive(s) which have
been certified, according to the requirements of this section, to be
effective for the control of PFID and IVD in gasoline engines.
(3) Except as specifically exempted in Sec. 80.173, these
detergency requirements apply to all gasoline, whether intended for on-
highway or nonroad use, including conventional, oxygenated,
reformulated, and leaded gasolines, as well as the gasoline component
in mixtures of petroleum and alcohol fuels, gasoline used as marine
fuel, gasoline service accumulation fuel (as described in Sec. 86.113-
94(a)(1) of this chapter), the gasoline component of fuel mixtures of
petroleum and methanol used for service accumulation in flexible fuel
vehicles (as described in Sec. 86.113-94(d) of this chapter), the
gasoline used for factory fill purposes, and all additized PRC.
(4) The specific controls and prohibitions applicable to persons
subject to these regulations are set forth in Sec. 80.168.
(b) Detergent additive certification requirements. For a detergent
additive package to be certified as eligible for use by detergent
blenders in complying with the gasoline detergency requirements of this
subpart, the requirements listed in this paragraph (b) must be
satisfied for such detergent. Subject to the provisions of paragraph
(e) of this section, if the certifier fails to conduct the specified
tests or to submit the specified materials, or if EPA judges the
testing or materials to be inadequate, or if the detergent fails EPA
confirmatory deposit control performance testing pursuant to
Sec. 80.167, the Administrator may deny or withdraw the detergent's
eligibility to be used to satisfy the detergency requirements of this
subpart.
(1) The detergent additive manufacturer must properly register the
detergent additive under 40 CFR part 79. For this purpose:
(i) The compositional data required under Sec. 79.21(a) of this
chapter shall include the information specified in Sec. 80.162.
(ii) The minimum recommended additive concentration required under
Sec. 79.21(d) of this chapter shall be reported to EPA in units of
gallons of detergent additive package per 1000 gallons of gasoline or
PRC, provided to four digits. This concentration is the lowest additive
concentration (LAC) referred to in Sec. 80.170, and shall be reported
as follows:
(A) For a detergent additive registered for use in unleaded
gasoline, the minimum concentration must be determined and reported for
each certification option under which the manufacturer wishes to
certify the additive pursuant to Sec. 80.163.
(1) In the case of a detergent certified for use in California
gasoline based on an existing certification granted by the California
Air Resources Board (CARB), pursuant to Sec. 80.163(d), the minimum
recommended concentration must equal or exceed the amount specified in
the CARB certification.
(2) In the case of any other detergent certification option, the
minimum recommended concentration must equal or exceed the amount mixed
into the associated test fuel specified in Sec. 80.164, which was shown
to satisfy the PFID and IVD deposit control performance tests and
standards specified in Sec. 80.165.
(B) For a detergent registered for use in leaded gasoline, the
minimum recommended concentration must be no less than the amount shown
to be needed for control of carburetor deposits, pursuant to the test
procedure and test fuel guidelines in Sec. 80.166.
(C) Once it has been registered by EPA, the minimum recommended
concentration specified by a detergent manufacturer to detergent
blenders and other users of the additive, pursuant to paragraph (c) of
this section, may not be changed without first notifying EPA. Such
notification should be sent by certified mail to the address specified
in Sec. 80.174(b). The change in minimum concentration must be
supported by existing certification data or else the notification to
EPA must be accompanied by new certification information which
demonstrates that the modification is consistent with the requirements
of paragraphs (b)(1)(ii)(A) and (B) of this section.
(2) The detergent additive manufacturer (or other certifying party)
must submit to EPA a sample of the actual detergent additive package
which was used in the certification testing specified in Sec. 80.164
or, if such sample is not available, then a sample which has the same
composition as the package used in certification testing.
(i) The sample volume shall be between 250 ml and 500 ml.
(ii) The sample shall be packaged in a container which has a
resealable closure and which will maintain sample integrity for at
least one year. The container shall be labeled with the name and
address of the manufacturer and the name of the detergent additive
package.
(iii) Any known shelf life limitations, and any available
information on optimal temperature, light exposure, or other conditions
to prolong sample shelf life, shall be provided.
(iv) If the certifying party wishes to claim that the sample or any
accompanying documents are entitled to special handling for reasons of
business confidentiality, the party must clearly identify the sample or
documents as such. EPA will handle any samples or documents with such
claims according to the regulations at 40 CFR part 2.
[[Page 35365]]
(v) The sample shall be submitted to EPA, at the address provided
in Sec. 80.174(a), within seven days of the date on which the
certification letter for the detergent package is sent to EPA as
required by paragraph (b)(3) of this section.
(3) The detergent additive manufacturer (or other certifying party)
shall submit a certification letter for the detergent additive package
to the address in Sec. 80.174(b). The party must use certified or
express mail with return receipt service. The letter shall be signed by
a person legally authorized to represent the certifying party and shall
contain the following information:
(i) Identifying information.
(A) The name and address of the detergent additive manufacturer.
(B) In any case where the certifier is not the detergent additive
manufacturer, such as in the case of a fuel-specific certification
pursuant to Sec. 80.163(c), the name and address of the certifier.
(C) The commercial identifying name of the detergent additive
product as registered under the requirements of Sec. 79.21 of this
chapter.
(ii) A statement attesting that:
(A) The detergent package which is the subject of this
certification has been tested according to applicable procedural and
test fuel requirements in this subpart and has met the applicable
performance standards; and
(B) The testing was conducted in a manner consistent with good
engineering practices; and
(C) Complete documentation of the test fuel formulation and IVD
demonstration procedures, detergent performance test procedures, and
test results are available for EPA's inspection upon request.
(iii) The name and location of the laboratory(ies) at which the
certification testing was conducted and the dates during which the
testing was conducted.
(iv) For each option under which certification is sought pursuant
to Sec. 80.163, specifications of the test fuel(s) in which the
detergent underwent performance testing. These fuel specifications must
include:
(A) The sulfur content in weight percent.
(B) The T-90 distillation point in degrees Fahrenheit.
(C) The olefin content in volume percent.
(D) The aromatic content in volume percent.
(E) The identity and volume percent of any oxygenate compound.
(F) The source of the test fuel(s) and/or fuel blend stocks used to
formulate the test fuel(s).
(v) In the case of a national or PADD certification (pursuant to
Sec. 80.163 (a) or (b)) for which the test fuel was specially
formulated from refinery blend stocks, the results of the IVD
demonstration test, pursuant to Sec. 80.164(b)(3).
(vi) In the case of a fuel-specific detergent certification,
pursuant to Sec. 80.163(c), the definition of the segregated gasoline
pool, including any permitted PRC, for which the certification is
sought, and the fuel parameter percentile distributions determined for
the subject gasoline pool, as specified in Sec. 80.164(c). The
percentile distributions must include all of the fuel parameters listed
in paragraph (b)(3)(iv) (A) through (D) of this section, along with any
other fuel parameter(s) which the certifier wishes to use to define the
certification fuel. As specified in Sec. 80.164(c)(1)(iv), the
procedures used to measure the additional parameters must be
identified, as well as the levels of these additional parameters
present in the test fuel(s).
(vii) In the case of a certification for California gasoline based
on an existing certification granted by CARB, pursuant to
Sec. 80.163(d), a copy of the CARB certificate.
(viii) The test concentration(s) of the subject detergent additive
in each test fuel, and the corresponding test results (percent flow
restriction demonstrated in the PFID test and milligrams of deposit per
valve demonstrated in the IVD test).
(ix) For each option under which certification of the detergent is
sought, the minimum recommended concentration which the certifying
party seeks to establish for the detergent additive package, pursuant
to paragraph (b)(1)(ii) of this section.
(4) EPA will acknowledge receipt of the detergent certification
letter. The effective date of certification will be the sooner of 60
days from the date on which EPA receives the certification letter, or
the certifier's receipt of EPA's acknowledgement of the certification
letter. However, neither the passage of 60 days nor EPA's
acknowledgement will signify acceptance by EPA of the validity of the
information in the certification letter or the adequacy or potency of
the detergent sample submitted pursuant to paragraph (b)(2) of this
section. EPA may elect at any time to review the detergent
certification data, analyze the submitted detergent additive sample, or
subject the detergent additive package to confirmatory testing as
described in Sec. 80.167 and, where appropriate, may disqualify a
detergent certification according to the provisions in paragraph (e) of
this section.
(c) The minimum concentration reported in the detergent
registration according to the provisions of paragraph (b)(1)(ii) of
this section, plus any restrictions in use associated with that
concentration, must be accurately communicated in writing by the
additive manufacturer to each fuel manufacturer or detergent blender
who purchases the subject detergent for purpose of compliance with the
gasoline detergency requirements of this subpart, and to any additive
manufacturer who purchases the subject additive with the intent of
reselling it to a fuel manufacturer for this purpose.
(d) The rate at which a detergent blender treats gasoline with a
detergent additive package must be no less than the minimum recommended
concentration reported for the subject detergent additive pursuant to
paragraph (b)(1)(ii) of this section, except under the following
conditions:
(1) If a detergent blender possesses deposit control performance
test results as specified in Sec. 80.165 or Sec. 80.166 which show that
the minimum treat rate recommended by the manufacturer of a detergent
additive product exceeds the amount of that detergent actually required
for effective deposit control, then, upon informing EPA in writing of
these circumstances, the detergent blender may use the detergent at the
lower concentration substantiated by these test results.
(2) The notification to EPA must clearly specify the name of the
detergent product and its manufacturer, the concentration recommended
by the detergent manufacturer, and the lower concentration which the
detergent blender intends to use. The notification must also attest
that the required data are available to substantiate the deposit
control effectiveness of the detergent at the intended lower
concentration. The notification must be sent by certified mail to the
address specified in Sec. 80.174(b).
(3) At its discretion, EPA may require that the detergent blender
submit the test data purported to substantiate the claimed
effectiveness of the lower concentration of the detergent additive. In
addition, EPA may require the manufacturer of the subject detergent
additive to submit test data substantiating the minimum recommended
concentration specified in the detergent additive registration. In
either case, EPA will send a letter to the appropriate party; the
supporting data will be due to EPA within 30 days of receipt of EPA's
letter.
[[Page 35366]]
(i) If the detergent blender fails to submit the required
supporting data to EPA in the allotted time period, or if EPA judges
the submitted data to be inadequate to support the detergent blender's
claim that the lower concentration provides a level of deposit control
consistent with the requirements of this section, then EPA will
disapprove the use of the detergent at the lower concentration.
Further, the detergent blender may be subject to applicable liabilities
and penalties pursuant to Secs. 80.169 and 80.172 for any gasoline or
PRC it has additized at the lower concentration.
(ii) If the detergent manufacturer fails to submit the required
test data to EPA within the allotted time period, EPA will proceed on
the assumption that data are not available to substantiate the minimum
recommended concentration specified in the detergent registration, and
the subject additive may be disqualified for use in complying with the
requirements of this subpart, pursuant to the procedures in paragraph
(e) of this section. The detergent manufacturer may also be subject to
applicable liabilities and penalties in Secs. 80.169 and 80.172.
(iii) If both parties submit the required information, EPA will
evaluate the quality and results of both sets of test data, and will
either approve or disapprove the use of the lower treat rate submitted
by the detergent blender. EPA will inform both parties of the results
of its analysis.
(e) Disqualification of a detergent additive package. (1) When EPA
makes a preliminary determination that a detergent additive certifier
has failed to comply with the detergent certification requirements of
this section, including a failure to submit required materials for a
detergent additive or submission of materials which EPA deems
inadequate, or if a detergent additive fails confirmatory testing
conducted pursuant to Sec. 80.167, EPA shall notify the additive
certifier by certified mail, return receipt requested, setting forth
the basis for that determination and informing the certifier that the
detergent may lose its eligibility to be used to comply with the
detergency requirements of this section.
(2) If EPA determines that the detergent certification was created
by fraud or other misconduct, such as a negligent disregard for the
truthfulness or accuracy of the required information, the detergent
certification will be considered void ab initio and the
disqualification will be retroactive to July 1, 1997 or the date on
which the additive product was first certified, whichever is later.
(3) The certifier will be afforded 60 days from the date of receipt
of the notice of intent of detergent disqualification to submit written
comments concerning the notice, and to demonstrate or achieve
compliance with the specific requirements which provide the basis for
the proposed disqualification. If the certifier does not respond in
writing within 60 days from the date of receipt of the notice of intent
of disqualification, the detergent disqualification shall become final
and the Administrator shall notify the certifier of such final
disqualification order. If the certifier responds in writing within 60
days from the date of receipt of the notice of intent to disqualify,
the Administrator shall review and consider all comments submitted by
the certifier before taking final action concerning the proposed
disqualification. All correspondence regarding a disqualification must
be sent to the address provided in Sec. 80.174(b).
(4) As part of a written response to a notice of intent to
disqualify, a certifier may request an informal hearing concerning the
notice. Any such request shall state with specificity the information
the certifier wishes to present at such a hearing. If an informal
hearing is requested, EPA shall schedule such a hearing within 90 days
from the date of receipt of the request. If an informal hearing is
held, the subject matter of the hearing shall be confined solely to
whether or not the certifier has complied with the specific
requirements which provide the basis for the proposed disqualification.
If an informal hearing is held, the designated presiding officer may be
any EPA employee, the hearing procedures shall be informal, and the
hearing shall not be subject to or governed by 40 CFR part 22 or by 5
U.S.C. 554, 556, or 557. A verbatim transcript of each informal hearing
shall be kept and the Administrator (or designee) shall consider all
relevant evidence and arguments presented at the hearing in making a
final decision concerning a proposed disqualification.
(5) If a certifier who has received a notice of intent to
disqualify submits a timely written response, and the Administrator (or
designee) decides after reviewing the response and the transcript of
any informal hearing to disqualify the detergent for use in complying
with the requirements of this subpart, the Administrator (or designee)
shall issue a final disqualification order and forward a copy of the
disqualification order to the certifier by certified mail. Notice of
the disqualification order will also be published in the Federal
Register. The disqualification will become effective as of the date on
which the copy of the order is received by the certifier. If the
certifier is also a blender of the disqualified additive, then the
certifier must stop using the ineligible detergent upon receipt of the
disqualification order.
(6) Within 10 days of receipt of EPA's notification of the final
decision to disqualify a detergent additive package pursuant to this
paragraph (e), the detergent certifier must submit to EPA, at the
address specified in Sec. 80.174(b), a list of its customers who use
the disqualified detergent. Failure to do so may subject the certifier
to liabilities for violations of Sec. 80.168 that result from the use
of the uncertified detergent. EPA shall inform the certifier's
customers by certified mail that the detergent is no longer eligible
for compliance with the requirements of this subpart. These parties
must stop using the ineligible detergent additive package and
substitute an eligible detergent additive within 45 days of receiving
the notification, or within 45 days of publication of the
disqualification notice in the Federal Register, whichever occurs
sooner.
Sec. 80.162 Additive compositional data.
For a detergent additive product to be eligible for use by
detergent blenders in complying with the gasoline detergency
requirements of this subpart, the compositional data to be supplied to
EPA by the additive manufacturer for the purpose of registering a
detergent additive package under Sec. 79.21(a) of this chapter must
include the items listed in this section. In the case of items
requiring measurement or other technical analysis, and for which a
specific test procedure is not stipulated herein, the procedure must
conform to reasonable and customary standards of repeatability and
reproducibility, and reasonable and customary limits of detection and
accuracy for the type of test procedure or analytic procedure in
question. At EPA's request, detailed documentation of any such test
procedure must be submitted within 10 days of the registrant's receipt
of EPA's request.
(a) A complete listing of the components of the detergent additive
package and the weight and/or volume percent (as applicable) of each
component of the package.
(1) When possible, standard chemical nomenclature shall be used or
the chemical structure of the component shall be given. Polymeric
components may be reported as the product of other chemical reactants,
provided that the supporting data specified in paragraph (b) of this
section is also reported.
[[Page 35367]]
(2) Each detergent-active component of the package shall be
classified into one of the following designations:
(i) Polyalkyl amine;
(ii) Polyether amine;
(iii) Polyalkylsuccinimide;
(iv) Polyalkylaminophenol;
(v) Detergent-active petroleum-based carrier oil;
(vi) Detergent-active synthetic carrier oil; and
(vii) Other detergent-active component (identify category, if
feasible.)
(3) Composition variability.
(i) The composition of a detergent additive reported in a single
additive registration (and the detergent additive product sold under a
single additive registration) may not:
(A) Include detergent-active components which differ in identity
from those contained in the detergent additive package at the time of
certification testing; or
(B) Include a range of concentration for any detergent-active
component such that, if the component were present in the detergent
additive package at the lower bound of the reported range, the deposit
control effectiveness of the additive package would be reduced as
compared with the level of effectiveness demonstrated during
certification testing.
(ii) The identity or concentration of non-detergent-active
components of the detergent additive package may vary under a single
registration, provided that the range of such variation is specified in
the registration and that such variability does not reduce the deposit
control effectiveness of the additive package as compared with the
level of effectiveness demonstrated during certification testing.
(iii) Except as provided in paragraph (a)(3)(iv) of this section,
detergent additive packages which do not satisfy the restrictions in
this paragraph (a)(3) must be separately registered. EPA may disqualify
an additive for use in satisfying the requirements of this subpart if
EPA determines that the variability included within a given detergent
additive registration may reduce the deposit control effectiveness of
the detergent package such that it may invalidate the minimum
recommended concentration reported in accordance with the applicable
requirements of Sec. 80.161(b)(1)(ii).
(iv) A change in minimum concentration requirements resulting from
a modification of detergent additive composition shall not require a
new detergent additive registration or a change in existing
registration if:
(A) The modification is effected by a detergent blender only for
its own use or for the use of parties which are subsidiaries of, or
share common ownership with, the blender, and the modified detergent is
not sold or transferred to other parties; and
(B) The modification is a dilution of the additive for the purpose
of ensuring proper detergent flow in cold weather; and
(C) Gasoline is the only diluting agent used; and
(D) The diluted detergent is subsequently added to gasoline at a
rate that attains the detergent's registered minimum recommended
concentration, taking into account the dilution; and
(E) EPA is notified, either before or within seven days after the
dilution action, of the identity of the detergent, the identity of the
diluting material, the amount or percentage of the dilution, the change
in treat rate necessitated by the dilution, and the locations and time
period of diluted detergent usage. The notification shall be sent or
faxed to the address in Sec. 80.174(c).
(b) For detergent-active polymers and detergent-active carrier oils
which are reported as the product of other chemical reactants:
(1) Identification of the reactant materials and the manufacturer's
acceptance criteria for determining that these materials are suitable
for use in synthesizing detergent components. The manufacturer must
maintain documentation, and submit it to EPA upon request,
demonstrating that the acceptance criteria reported to EPA are the same
criteria which the manufacturer specifies to the suppliers of the
reactant materials.
(2) A Gel Permeation Chromatograph (GPC), providing the molecular
weight distribution of the polymer or detergent-active carrier oil
components and the concentration of each chromatographic peak
representing more than one percent of the total mass. For these results
to be acceptable, the GPC test procedure must include equipment
calibration with a polystyrene standard or other readily attainable and
generally accepted calibration standard. The identity of the
calibration standard must be provided, together with the GPC
characterization of the standard.
(c) For non-detergent-active carrier oils, the following
parameters:
(1) T10, T50, and T90 distillation points, and end boiling point,
measured according to applicable test procedures cited in Sec. 80.46.
(2) API gravity and viscosity
(3) Concentration of oxygen, sulfur, and nitrogen, if greater than
or equal to 0.5 percent (by weight) of the carrier oil
(d) Description of an FTIR-based method appropriate for identifying
the detergent additive package and its detergent-active components
(polymers, carrier oils, and others) both qualitatively and
quantitatively, together with the actual infrared spectra of the
detergent additive package and each detergent-active component obtained
by this test method.
(e) To provide a basis for establishing an affirmative defense to
presumptive liability pursuant to Sec. 80.169(c)(4)(i)(D)(2)(i),
specific physical parameters must be identified which the manufacturer
considers adequate and appropriate, in combination with other
information and sampling requirements under this subpart, for
identifying the detergent additive package and monitoring its
production quality control.
(1) Such parameters shall include (but need not be limited to)
viscosity, density, and basic nitrogen content, unless the additive
manufacturer specifically requests, and EPA approves, the substitution
of other parameter(s) which the manufacturer considers to be more
appropriate for a particular additive package. The request must be made
in writing and must include an explanation of how the requested
physical parameter(s) are helpful as indicator(s) of detergent
production quality control. EPA will respond to such requests in
writing; the additional parameters are not approved until the certifier
receives EPA's written approval.
(2) The manufacturer shall identify a standardized measurement
method, consistent with the chemical and physical nature of the
detergent product, which will be used to measure each parameter. The
documented ASTM repeatability for the method shall also be cited. The
manufacturer's target value for each parameter in the detergent
package, and the expected range of production values for each
parameter, shall be specified.
(3) EPA will consider the parameter measurements to be an
acceptable basis for establishing an affirmative defense to presumptive
liability, if the expected range of variability differs from the target
value by an amount no greater than five times the standard
repeatability of the test procedure, or by no more than 10 percent of
the target value, whichever is less. However, in the case of nitrogen
analysis or other procedures for measuring concentrations of specific
chemical compounds or elements, when the target value is less than 10
parts per million, a range of variability up to 50 percent
[[Page 35368]]
of the target value will be considered acceptable.
(4) If a manufacturer wishes to rely on measurement methods or
production variability ranges which do not conform to the above
limitations, then the manufacturer must receive prior written approval
from EPA in order to be assured that any related parameter measurements
will be considered an acceptable basis for establishing an affirmative
defense. A request for such allowance must be made in writing. It must
fully justify the adequacy of the test procedure, explain why a broader
range of variability is required, and provide evidence that the
production detergent will perform adequately throughout the requested
range of variability.
Sec. 80.163 Detergent certification options.
To be used to satisfy the detergency requirements under
Sec. 80.161(a), a detergent additive must be certified in accordance
with the requirements of one or more of the options and suboptions
described in this section. Where a certification option makes an
additive eligible for use in a particular gasoline, that additive is
also eligible for use in PRC which will be added to the particular
gasoline. Under each option, the lowest additive concentration (LAC) or
minimum recommended concentration registered for a detergent additive
package, pursuant to Sec. 80.161(b)(1)(ii), must equal or exceed the
lowest detergent treat rate shown to be needed in the designated test
fuel in order to meet the deposit control performance requirements
specified in Sec. 80.165.
(a) National certification. A detergent certified under a national
certification option is eligible for use in gasoline which can be sold
or dispensed anywhere within the United States or its territories
(subject to approved state programs).
(1) National generic certification option. To be certified under
this option, a candidate detergent must meet the deposit control
performance test requirements and standards specified in Sec. 80.165
using test fuels that conform to the requirements in Sec. 80.164(b)(1),
Table 1, Line 1. A detergent certified under this option is eligible to
be used at a conforming LAC in any grade of gasoline, with or without
an oxygenate component.
(i) National nonoxygenate suboption. The requirements for
certification under this suboption are the same as those in paragraph
(a)(1) of this section, except that, pursuant to Sec. 80.164(a)(2)(ii),
the certification test fuel shall contain no ethanol or other
oxygenate. A detergent certified under this suboption is eligible to be
used at a conforming LAC only in gasoline that does not contain an
oxygenate component.
(ii) National oxygenate-specific suboption. The requirements for
certification under this suboption are the same as those in paragraph
(a)(1) of this section, except that, pursuant to
Sec. 80.164(a)(2)(iii), the certification test fuel shall contain an
oxygenate compound other than ethanol. A detergent certified under this
suboption is eligible to be used at a conforming LAC only in gasoline
that contains no oxygenate component other than the one present in the
test fuel.
(2) National premium certification option. To be certified under
this option, a candidate detergent must meet the deposit control
performance test requirements and standards specified in Sec. 80.165
using test fuels that conform to the requirements in Sec. 80.164(b)(1),
Table 1, Line 2. A detergent certified under this option is eligible to
be used at a conforming LAC only in premium grade gasoline, with or
without an oxygenate component.
(i) National premium nonoxygenate suboption. The requirements for
certification under this suboption are the same as those in paragraph
(a)(2) of this section, except that, pursuant to Sec. 80.164(a)(2)(ii),
the certification test fuel shall contain no ethanol or other
oxygenate. A detergent certified under this suboption is eligible to be
used at a conforming LAC only in premium grade gasoline that does not
contain an oxygenate component.
(ii) National premium oxygenate-specific suboption. The
requirements for certification under this suboption are the same as
those in paragraph (a)(2) of this section, except that, pursuant to
Sec. 80.164(a)(2)(iii), the certification test fuel shall contain an
oxygenate compound other than ethanol. A detergent certified under this
suboption is eligible to be used at a conforming LAC only in gasoline
that is premium grade and contains no oxygenate component other than
the one present in the test fuel.
(b) Petroleum Administrative Defense District (PADD) Certification.
A detergent certified under a PADD certification option is eligible for
use in gasoline which can be sold or dispensed to the ultimate
purchaser, or to those parties who sell or dispense to the ultimate
consumer, only within the PADD for which the certification was granted.
The states and jurisdictions included within each PADD are specified in
Sec. 79.59(b)(3)(i) through (v), except that, for purposes of PADD
certification, the state of California is excluded from PADD V.
(1) PADD generic certification option. To be certified under this
option, a candidate detergent must meet the deposit control performance
test requirements and standards specified in Sec. 80.165 using test
fuels that conform to the requirements in Sec. 80.164(b)(1), Table 2,
for a selected PADD. A detergent certified under this option is
eligible to be used at a conforming LAC in any grade of gasoline, with
or without an oxygenate component, provided that the gasoline is
ultimately dispensed in the selected PADD.
(i) PADD nonoxygenate suboption. The requirements for certification
under this suboption are the same as those in paragraph (b)(1) of this
section, except that, pursuant to Sec. 80.164(a)(2)(ii), the
certification test fuel shall contain no ethanol or other oxygenate. A
detergent certified under this suboption is eligible to be used at a
conforming LAC only in gasoline that is nonoxygenated and is ultimately
dispensed in the selected PADD.
(ii) PADD oxygenate-specific suboption. The requirements for
certification under this suboption are the same as those in paragraph
(b)(1) of this section, except that, pursuant to
Sec. 80.164(a)(2)(iii), the certification test fuel shall contain an
oxygenate compound other than ethanol. A detergent certified under this
suboption is eligible to be used at a conforming LAC only in gasoline
that contains no oxygenate component other than the one present in the
test fuel and is ultimately dispensed in the selected PADD.
(2) PADD premium certification option. To be certified under this
option, a candidate detergent must meet the deposit control performance
test requirements and standards specified in Sec. 80.165 using test
fuels that conform to the requirements in Sec. 80.164(b)(1), Table 2,
for a selected PADD. A detergent certified under this option is
eligible to be used at a conforming LAC only in gasoline that is
premium grade (with or without an oxygenate component) and is
ultimately dispensed in the selected PADD.
(i) PADD premium nonoxygenate suboption. The requirements for
certification under this suboption are the same as those in paragraph
(b)(2) of this section, except that, pursuant to Sec. 80.164(a)(2)(ii),
the certification test fuel shall contain no ethanol or other
oxygenate. A detergent certified under this suboption is eligible to be
used at a conforming LAC only in gasoline that is premium grade,
contains no
[[Page 35369]]
oxygenate component, and is ultimately dispensed in the selected PADD.
(ii) PADD premium oxygenate-specific suboption. The requirements
for certification under this suboption are the same as those in
paragraph (b)(2) of this section, except that, pursuant to
Sec. 80.164(a)(2)(iii), the certification test fuel shall contain an
oxygenate compound other than ethanol. A detergent certified under this
suboption is eligible to be used at a conforming LAC only in gasoline
that is premium grade, contains no oxygenate component other than the
one present in the test fuel, and is ultimately dispensed in the
selected PADD.
(c) Fuel-specific certification. Except as provided in paragraph
(c)(3) of this section, to be certified under the fuel-specific
certification option, a candidate detergent must meet the deposit
control performance test requirements and standards specified in
Sec. 80.165 using test fuels that conform to the requirements of
Sec. 80.164(c).
(1) A detergent certified under this option is eligible to be used
at a conforming LAC only in the defined gasoline pool reported in the
certification letter pursuant to Sec. 80.161(b)(3).
(i) The gasoline pool may only include gasoline produced or
distributed from the facilities covered by the fuel survey which was
used to define the fuel-specific certification test fuels, pursuant to
Sec. 80.164(c)(1).
(ii) The gasoline pool must be kept segregated from any other
gasoline prior to blending with the detergent additive.
(iii) Depending on the oxygenate components added to the test fuel
pursuant to Sec. 80.164(a)(2), the gasoline pool may be inclusive of
all grades and all oxygenate blending characteristics (i.e., generic),
or may be restricted to non-oxygenated gasoline, or to gasoline
containing a specific oxygenate compound. The certification may also be
restricted to premium grade gasoline. Any such use restrictions must be
specified in the certification letter. Provisions in Secs. 80.168 and
80.171(a)(9) through (12) related to such use restrictions also apply.
(2) Detergent certification under this option entails special
initial and annual reporting requirements, specified under
Secs. 80.161(b)(3)(vi) and 80.164(c)(3), which necessitate that the
responsible party have control over and access to the segregated
gasoline pool for which the detergent is certified. For this reason,
the certifying party under this option is likely to be (but is not
required to be) a fuel manufacturer or detergent blender, rather than
the additive manufacturer.
(3) If a certifier demonstrates that the required test fuel
representing a segregated pool of gasoline meets the deposit control
performance standards specified in Sec. 80.165 in the absence of a
detergent additive, or using a detergent additive which has only PFID-
control activity, then this gasoline pool (and PFID detergent, if
applicable) can be certified accordingly under the fuel-specific
option.
(4) Gasoline properly additized with a detergent certified under
the fuel-specific option may be transferred or sold anywhere within the
United States and its territories (subject to approved state programs).
(d) CARB-Based Certification. A valid certification under section
2257 of Title 13, California Code of Regulations (CARB certification)
may be the basis for a certification under the following restrictions
and conditions:
(1) A detergent certified under this option may be used at the LAC
specified in the CARB certification only in gasoline that meets the
requirements of California Phase II reformulated gasoline (pursuant to
Title 13, Chapter 5, Article 1, Subarticle 2, California Code of
Regulations, Standards for Gasoline Sold Beginning March 1, 1996). The
grade(s) of California gasoline which may be so additized, and the
oxygenate(s) which may be present, are as specified in the CARB
certification for the detergent in question.
(2) The gasoline must be either: Additized in California; or sold
or dispensed to the ultimate consumer in California (or to parties who
sell or dispense to the ultimate consumer in California); or both
additized and ultimately dispensed in California.
(3) A certification under this option will continue to be valid
only as long as the CARB certification remains valid. The certifier
must cease selling or using a detergent immediately upon being notified
by CARB that the CARB certification for this detergent has been
invalidated, and must notify EPA within 7 days of receipt of this
notification.
Sec. 80.164 Certification test fuels.
(a) General requirements. This section provides specifications for
the test fuels required in conjunction with the certification options
described in Sec. 80.163. For each such certification option, the
associated test fuel must meet or exceed the levels of four basic fuel
parameters (aromatics, fuel sulfur, olefins, and T-90) prescribed here
and may also contain specified oxygenate compounds. In addition,
pursuant to paragraph (b)(3) of this section, some fuels must undergo
an IVD demonstration test before they are eligible to be used as test
fuels under this certification program. Test fuel characteristics must
be reported to EPA in the detergent certification letter required
pursuant to Sec. 80.161(b)(3).
(1) Quantitative specifications for the four basic fuel parameters,
provided in paragraphs (b) and (c) of this section, refer to the levels
of these parameters in the base gasoline prior to the addition of any
oxygenate. The levels of the basic fuel parameters must be measured in
accordance with applicable procedures in Sec. 80.46.
(2) Oxygenate components of certification test fuels must be of
fuel grade quality. The type and amount of oxygenate to be blended into
the test fuel (if any) shall be as follows:
(i) To certify a detergent for generic use (i.e., for use in
gasoline containing any oxygenate compound, as well as for use in
nonoxygenated gasoline), the finished test fuel shall contain ethanol
at 10 volume percent.
(ii) To certify a detergent specifically for use in nonoxygenated
gasoline, no oxygenate compounds shall be added to the test fuel.
(iii) To certify a detergent specifically for use in gasoline
blended with a specified oxygenate compound other than ethanol, the
specified oxygenate must be added to the test fuel in an amount such
that the finished fuel contains the oxygenate at the highest
concentration at which the specific oxygenate may be used in in-use
gasoline.
(3) No detergent-active substance other than the detergent additive
package undergoing testing may be added to a certification test fuel.
Typical nondetergent additives, such as antioxidants, corrosion
inhibitors, and metal deactivators, may be present in the test fuel at
the discretion of the additive certifier. In addition, any nondetergent
additives (other than oxygenate compounds) which are commonly blended
into gasoline and which are known or suspected to affect IVD or PFID
formation, or to reduce the ability of the detergent in question to
control such deposits, should be added to the test fuel for
certification testing.
(4) Certification test requirements may be satisfied for a
detergent additive using more than one batch of test fuel, provided
that each batch satisfies all applicable test fuel requirements under
this section.
(5) Unless otherwise required by this section, finished test fuels
must conform to the requirements for commercial gasoline described in
ASTM D 4814-95c, ``Standard Specification for Automotive Spark-Ignition
Engine
[[Page 35370]]
Fuel'', which is incorporated by reference. This incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
inspected at U.S. EPA, OAR, 401 M Street, Southwest, Washington, DC
20460, or at the Office of the Federal Register, 800 North Capitol
Street, NW., suite 700, Washington, DC. Copies of this material may be
obtained from ASTM, 1916 Race St., Philadelphia, PA 19103.
(b) National and PADD certification test fuels.
(1) Test fuels for the national generic and premium certification
options must contain levels of the designated fuel parameters which
meet or exceed the applicable values in Table 1. Test fuels for the
PADD generic certification options must contain levels of the
designated fuel parameters which meet or exceed the applicable values
in Table 2. Test fuels for the PADD premium certification options must
contain levels of the designated fuel parameters which meet or exceed
the applicable values in Table 3. Oxygenate requirements for the
respective nonoxygenate and oxygenate-specific suboptions are specified
in paragraph (a)(2) of this section.
Table 1.--National Certification Test Fuels
----------------------------------------------------------------------------------------------------------------
Required minimum fuel parameter values
------------------------------------------------------------------------------
Certification option Sulfur Olefins Aromatics
(weight %) T-90 (F) (volume %) (volume %) Oxygenate (volume %)
----------------------------------------------------------------------------------------------------------------
1. National Generic............. 0.034 339 11.4 31.1 10% Ethanol.
2. National Premium.............. 0.016 332 6.5 35.9
----------------------------------------------------------------------------------------------------------------
Table 2.--PADD-Specific Generic Certification Test Fuels
----------------------------------------------------------------------------------------------------------------
Required minimum fuel parameter values
------------------------------------------------------------------------------
Certification option Sulfur Olefins Aromatics
(weight %) T-90 (F) (volume %) (volume %) Oxygenate (volume %)
----------------------------------------------------------------------------------------------------------------
PADD 1 Generic................... 0.039 343 15.4 32.1
PADD 2 Generic................... 0.034 338 10.3 29.3
PADD 3 Generic................... 0.032 343 12.9 29.8 10% Ethanol.
PADD 4 Generic................... 0.050 326 10.0 27.1
PADD 5 Generic................... 0.021 337 7.6 34.5
----------------------------------------------------------------------------------------------------------------
Table 3.--PADD-Specific Premium-Grade Certification Test Fuels
----------------------------------------------------------------------------------------------------------------
Required minimum fuel parameter values
------------------------------------------------------------------------------
Certification option Sulfur Olefins Aromatics
(weight %) T-90 (F) (volume %) (volume %) Oxygenate (volume %)
----------------------------------------------------------------------------------------------------------------
PADD 1 Premium................... 0.018 332 9.2 38.6
PADD 2 Premium................... 0.014 333 6.0 34.3
PADD 3 Premium................... 0.015 334 6.0 34.6 10% Ethanol.
PADD 4 Premium................... 0.040 319 6.0 22.3
PADD 5 Premium................... 0.011 332 4.3 36.7
----------------------------------------------------------------------------------------------------------------
(2) National and PADD certification test fuels must either be
formulated to specification from normal refinery blend stocks, or drawn
from finished gasoline supplies. The source of such samples must be
normally-operating gasoline production or distribution facilities
located in the U.S. Samples must not be drawn from a segregated
gasoline pool that is or will be covered by a fuel-specific
certification under Sec. 80.163(c) on the date when the certification
information under this option is submitted to EPA.
(3) To be eligible for use in detergent additive certification
testing, in addition to the specifications above, national and PADD
test fuels which are specially formulated from refinery blend stocks
must themselves undergo testing to demonstrate their deposit-forming
tendency. For this purpose, the unadditized, nonoxygenated test fuel
must be subjected to the IVD control test procedure described in
Sec. 80.165(b). At the discretion of the tester, the duration of the
demonstration test may be less than 10,000 miles, provided the results
satisfy the standard of this paragraph. In order to qualify for use in
certification testing, the formulated fuel's test results must meet or
exceed the values shown in Table 4 for the relevant certification
option. If the demonstration test results do not meet these criteria,
then the formulated fuel may not be used for detergent certification
testing.
Table 4.--IVD Demonstration Test Criteria
----------------------------------------------------------------------------------------------------------------
Minimum required deposit level in IVD demonstration test (mg/valve,
average)
Certification option -----------------------------------------------------------------------------
National PADD 1 PADD 2 PADD 3 PADD 4 PADD 5
----------------------------------------------------------------------------------------------------------------
Generic........................... 290 290 260 290 260 260
[[Page 35371]]
Premium........................... 260 260 235 260 235 235
----------------------------------------------------------------------------------------------------------------
(c) Fuel-specific certification test fuels. (1) Test fuels required
for fuel-specific certification must contain levels of each of the four
basic fuel parameters (aromatics, olefins, T-90, and fuel sulfur) at no
less than their respective 65th percentile values in the segregated
gasoline pool for which the detergent certification is sought in
accordance with Sec. 80.163(c). These values must be determined by the
certifier as follows:
(i) At least once monthly for at least one complete year prior to
the certification, the certifier must measure the levels of the
required parameters in representative fuel samples contributed to the
segregated gasoline pool by each participating refinery, terminal, or
other fuel production or distribution facility. The fuel parameters
must be measured in accordance with the test procedures in Sec. 80.46.
If the applicability of the fuel-specific certification is to be
limited to premium gasoline, then the required fuel compositional data
must be collected only from samples of premium gasoline.
(ii) The fuel composition survey results, weighted according to the
percentage of gasoline contributed to the segregated gasoline pool from
each participating facility, shall be used to construct a percentile
distribution of the measured values for each of the fuel parameters.
(iii) Data from more than one year may be used to construct the
required statistical distribution provided that only the total data
from complete consecutive years is used and that all survey data must
have been collected within three years of the date the certification
information is submitted to EPA.
(iv) At the discretion of the certifier, other fuel parameters may
be used to define the certification test fuels in addition to the four
required parameters. To be taken into account by EPA in case of
confirmatory testing pursuant to Sec. 80.167, such additional
parameters must be surveyed and analyzed according to the same
requirements applicable to the four standard parameters. In addition,
any optional parameters must be measured using test procedures which
conform to reasonable and customary standards of repeatability and
reproducibility, and reasonable and customary limits of detection and
accuracy for the type of test procedure or analytic procedure in
question.
(v) Using the percentile distributions calculated from the survey
data for the four required parameters and any additional discretionary
parameters, the 65th percentile value for each such parameter shall be
determined. Prior to the addition of any oxygenate compound, the fuel-
specific certification test fuel shall contain each specified parameter
at a level or concentration no less than this 65th percentile value.
Test fuel oxygenate requirements for generic, nonoxygenate, and
oxygenate-specific certification suboptions are specified in paragraph
(a)(2) of this section.
(2) Fuel-specific certification test fuels must either be
formulated to specification from the same refinery blend stocks which
are normally used to blend the gasolines included in the subject
gasoline pool, or drawn from the finished fuel supplies which
contribute to this pool of gasoline. Fuel-specific certification test
fuels need not undergo an IVD demonstration test prior to use in
certification testing.
(3) The certifier must submit an annual report to EPA within 30
days of the anniversary of the initial certification effective date.
Failure to submit the annual report by the required date will
invalidate the fuel-specific certification and may subject the
certifier to liability and penalties under Secs. 80.169 and 80.172. The
purpose of the annual report is to update the information on the
composition of the segregated gasoline pool that was characterized by
the initial fuel survey.
(i) For this purpose, the same fuel survey and statistical analysis
requirements that were conducted pursuant to paragraphs (c)(1)(i),(ii),
and (iv) of this section must be repeated, using data for the most
current twelve-month period from each of the production/distribution
facilities that contributed to the original fuel survey.
(ii) The annual report must present the percentile distributions
for each fuel parameter as determined from the new survey data and, for
each measured fuel parameter, must compare the newly determined 50th
percentile value with the 60th percentile value for that parameter as
determined in the original fuel survey.
(iii) If the new 50th percentile level for any fuel parameter is
greater than or equal to the 60th percentile level reported in the
initial certification, then the fuel-specific certification is no
longer valid. In such instance, the certifier must immediately
discontinue the sale and use of the subject detergent under the
conditions of the fuel-specific certification and must immediately
notify any downstream customers/recipients of the subject detergent
that the certification is no longer valid and that their use of the
detergent must discontinue within seven days. To avoid liability and
penalties under Secs. 80.169 and 80.172, the certifier must take these
remedial steps within 45 days of the anniversary of the original fuel-
specific certification. Downstream customers/recipients must
discontinue usage of the detergent within seven days of receipt of
notification of the detergent's invalidity to avoid such liability.
(4) The fuel composition survey results which support the original
test fuel specifications and the annual statistical analyses, along
with related documentation on test methods and statistical procedures,
shall be retained by the certifier for a period of at least five years,
and shall be made available to EPA upon request.
Sec. 80.165 Certification test procedures and standards.
This section specifies the deposit control test requirements and
performance standards which must be met in order to certify detergent
additives for use in unleaded gasoline, pursuant to
Sec. 80.161(b)(1)(ii)(A)(2). These standards must be met in the context
of the specific test procedures identified in paragraphs (a) and (b) of
this section, except as provided in paragraph (c) of this section. In
any case, the testing must be conducted and the performance standards
met when the subject detergent additive is mixed in a test fuel meeting
all relevant requirements of Sec. 80.164, including the deposit-forming
tendency demonstration specified in Sec. 80.164(b)(3), if applicable.
Complete test documentation must be submitted
[[Page 35372]]
by the certifying party within 30 days of receipt of a written request
from EPA for such records.
(a) Fuel injector deposit control testing. (1) The required test
fuel must produce no more than 5% flow restriction in any one injector
when tested in accordance with ASTM D 5598-94, ``Standard Test Method
for Evaluating Unleaded Automotive Spark-Ignition Engine Fuel for
Electronic Port Fuel Injector Fouling,'' 1994, which is incorporated by
reference. This incorporation by reference was approved by the Director
of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. Copies may be inspected at U.S. EPA, OAR, 401 M Street,
Southwest, Washington, DC 20460, or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
Copies of this material may be obtained from ASTM, 1916 Race St.,
Philadelphia, PA 19103.
(2) At the option of the certifier, fuel injector flow may be
measured at intervals during the 10,000 mile test cycle described in
ASTM D 5598-94, in addition to the flow measurements required at the
completion of the test cycle, but not more than every 1,000 miles.
(b) Intake valve deposit control testing. The required test fuel
must produce the accumulation of less than 100 mg of intake valve
deposits on average when tested in accordance with ASTM D 5500-94,
``Standard Test Method for Vehicle Evaluation of Unleaded Automotive
Spark-Ignition Engine Fuel for Intake Valve Deposit Formation,'' 1994,
which is incorporated by reference. This incorporation by reference was
approved by the Director of the Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies may be inspected at U.S. EPA,
OAR, 401 M Street, Southwest, Washington, DC 20460, or at the Office of
the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC. Copies of this material may be obtained from ASTM, 1916
Race St., Philadelphia, PA 19103.
(c) If conducted using test fuels meeting all relevant requirements
of Sec. 80.164, and completed prior to September 3, 1996, then the PFID
and IVD control test procedures required for detergent certification in
California (specified in section 2257 of Title 13, California Code of
Regulations) will also be considered acceptable. California Air
Resources Board, ``Test Method for Evaluating Port Fuel Injector (PFI)
Deposits in Vehicle Engines'', March 1, 1991, and California Air
Resources Board, ``BMW--10,000 Miles Intake Valve Test Procedure'',
March 1, 1991, are incorporated by reference. This incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
inspected at U.S. EPA, OAR, 401 M Street, Southwest, Washington, DC
20460, or at the Office of the Federal Register, 800 North Capitol
Street, NW., suite 700, Washington, DC. Copies of this material may be
obtained from the California Air Resource Board, Stationary Source
Division, 2020 L Street, PO Box 2815, Sacramento, CA, 95814.
Sec. 80.166 Carburetor deposit control performance test and test fuel
guidelines.
EPA will use the guidelines in this section to evaluate the
adequacy of carburetor deposit control test data, used to support the
minimum concentration recommended for detergents used in leaded
gasoline pursuant to Sec. 80.161(b)(1)(ii)(B).
(a) Carburetor Deposit Control Test Procedure and Performance
Standard Guidelines. For demonstration of carburetor deposit control
performance, any generally accepted vehicle, engine, or bench test
procedure and associated performance standard for carburetor deposit
control will be considered adequate. Port and throttle body fuel
injector deposit control test data will also be considered to be
adequate demonstration of an additive's ability to control carburetor
deposits. Examples of acceptable test procedures for demonstration of
carburetor deposit control, in addition to the fuel injector test
procedure listed in Sec. 80.165(a), are contained in the following
references:
(1) ``Test Method for Evaluating Port Fuel Injector (PFI) Deposits
in Vehicle Engines'', March 1, 1991, Section 2257, Title 13, California
Code of Regulations.
(2) ``A Vehicle Test Technique for Studying Port Fuel Injector
Deposits--A Coordinating Research Council Program'', Robert Tupa et
al., SAE Technical paper No. 890213, 1989.
(3) ``The Effects of Fuel Composition and Additives on Multiport
Fuel Injector Deposits'', Jack Benson et al., SAE Technical Paper
Series No. 861533, 1986.
(4) ``Injector Deposits--The Tip of Intake System Deposit
Problems'', Brian Taneguchi, et al., SAE Technical Paper Series No.
861534, 1986.
(5) ``Fuel Injector, Intake Valve, and Carburetor Detergency
Performance of Gasoline Additives'', C.H. Jewitt et al., SAE Technical
Paper No. 872114, 1987.
(6) ``Carburetor Cleanliness Test Procedure, State-of-the-Art
Summary, Report: 1973-1981'', Coordinating Research Council, CRC Report
No. 529, Coordinating Research Council Inc. (CRC), 219 perimeter Center
Parking, Atlanta, Georgia, 30346.
(b) Carburetor Deposit Control Test Fuel Guidelines. (1) The
gasoline used in the tests described in paragraph (a) of this section
must contain the detergent-active components of the subject detergent
additive package in an amount which corresponds to the minimum
recommended concentration recorded in the respective detergent
registration, or less than this amount.
(2) The test fuel must not contain any detergent-active components
other than those recorded in the subject detergent certification.
(3) The composition of the test fuel used in carburetor deposit
control testing, conducted to support the claimed effectiveness of
detergents used in leaded gasoline, should be reasonably typical of in-
use gasoline in its tendency to form carburetor deposits (or more
severe than typical in-use fuels) as defined by the olefin and sulfur
content. A test fuel conforming to these compositional guidelines may
be sampled directly from finished gasolines or may be blended to
specification using typical refinery blend stocks. Test data using
leaded fuels is preferred for this purpose, but data collected using
unleaded fuels may also be acceptable provided that some correlation
with additive performance in leaded fuels is available.
Sec. 80.167 Confirmatory testing.
EPA may test a detergent to confirm that the required performance
levels are met. Based on the findings of this confirmatory testing, a
detergent certification may be denied or revoked under the provisions
of Sec. 80.161(e).
(a) Confirmatory testing conducted to evaluate the validity of
detergent certifications under the national, PADD, or fuel-specific
options will generally entail a single vehicle test using the
procedures detailed in Sec. 80.165. The test fuel(s) used in conducting
confirmatory certification testing will contain the specified fuel
parameters at or below the minimum levels specified in Sec. 80.164, and
will otherwise conform to the applicable certification test fuel
specifications therein.
(b) Confirmatory certification testing conducted to evaluate the
validity of CARB-based detergent certifications will use the subject
detergent in test fuel(s) containing the relevant fuel parameters at
levels no greater than the maximum levels for which the CARB
certification was granted. The test procedures will be conducted
pursuant to the procedures
[[Page 35373]]
specified under section 2257 of Title 13, California Code of
Regulations.
(c) Confirmatory testing conducted to evaluate the validity of
registration and certification information specific to detergent use in
leaded gasoline will use the subject detergent in a test fuel
containing the test fuel parameters at levels no greater than those
prescribed in Sec. 80.164. EPA will make all reasonable efforts to use
the same test procedure for confirmatory testing purposes as was used
by the certifier in conducting deposit control performance testing.
(d) When EPA decides to conduct confirmatory testing on a fuel or
additive which is not readily available in the open market, EPA may
request that the detergent certifier and/or manufacturer of such fuel
or additive furnish a sample in the needed quantity. If testing is
conducted to evaluate the validity of a detergent certification under
the fuel-specific option, the detergent blender must supply EPA with
test fuel, or with blend stocks with which to formulate such test fuel,
in sufficient quantity to conduct the specified deposit control
performance testing. The fuel or additive manufacturer shall comply
with a sample request made pursuant to this paragraph within 30 days of
receipt of the request.
Sec. 80.168 Detergent certification program controls and prohibitions.
(a)(1) No person shall sell, offer for sale, dispense, supply,
offer for supply, transport, or cause the transportation of gasoline to
the ultimate consumer for use in motor vehicles or in any off-road
engines (except as provided in Sec. 80.173), or to a gasoline retailer
or wholesale purchaser-consumer, and no person shall detergent-additize
gasoline, unless such gasoline is additized in conformity with the
requirements of Sec. 80.161. No person shall cause the presence of any
gasoline in the gasoline distribution system unless such gasoline is
additized in conformity with the requirements of Sec. 80.161.
(2) Gasoline has been additized in conformity with the requirements
of Sec. 80.161 when the detergent component satisfies the requirements
of Sec. 80.161 and when:
(i) The gasoline has been additized in conformity with the
detergent composition and purpose-in-use specifications of a detergent
certified in accordance with this subpart, and in accordance with at
least the minimum concentration specifications of that detergent as
certified or as otherwise provided under Sec. 80.161(d); or
(ii) The gasoline is composed of two or more commingled gasolines
and each component gasoline has been additized in conformity with the
detergent composition and purpose-in-use specifications of a detergent
certified in accordance with this subpart, and in accordance with at
least the minimum concentration specifications of that detergent as
certified or as otherwise provided under Sec. 80.161(d); or
(iii) The gasoline is composed of a gasoline commingled with a
post-refinery component (PRC), and both of these components have been
additized in conformity with the detergent composition and use
specifications of a detergent certified in accordance with this
subpart, and in accordance with at least the minimum concentration
specifications of that detergent as certified or as otherwise provided
under Sec. 80.161(d).
(b) No person shall blend detergent into gasoline or PRC unless
such person complies with the volumetric additive reconciliation
requirements of Sec. 80.170.
(c) No person shall sell, offer for sale, dispense, supply, offer
for supply, store, transport, or cause the transportation of any
gasoline, detergent, or detergent-additized PRC, unless the product
transfer document for the gasoline, detergent or detergent-additized
PRC complies with the requirements of Sec. 80.171.
(d) No person shall refine, import, manufacture, sell, offer for
sale, dispense, supply, offer for supply, store, transport, or cause
the transportation of any detergent that is to be used as a component
of detergent-additized gasoline or detergent-additized PRC unless such
detergent conforms with the composition specifications of a detergent
certified in accordance with this subpart and the detergent otherwise
complies with the requirements of Sec. 80.161. No person shall cause
the presence of any detergent in the detergent, PRC, or gasoline
distribution systems unless such detergent complies with the
requirements of Sec. 80.161.
(e)(1) No person shall sell, offer for sale, dispense, supply,
offer for supply, transport, or cause the transportation of detergent-
additized PRC unless the PRC has been additized in conformity with the
requirements of Sec. 80.161. No person shall cause the presence in the
PRC or gasoline distribution systems of any detergent-additized PRC
that fails to conform to the requirements of Sec. 80.161.
(2) PRC has been additized in conformity with the requirements of
Sec. 80.161 when the detergent component satisfies the requirements of
Sec. 80.161 and when:
(i) The PRC has been additized in accordance with the detergent
composition and use specifications of a detergent certified in
accordance with this subpart and in conformity with at least the
minimum concentration specifications of that detergent as certified or
as otherwise provided under Sec. 80.161(d), or
(ii) The PRC is composed of two or more commingled PRCs, and each
component has been additized in accordance with the detergent
composition and use specifications of a detergent certified in
accordance with this subpart, and in conformity with at least the
minimum concentration specifications of that detergent as certified or
as otherwise provided under Sec. 80.161(d).
Sec. 80.169 Liability for violations of the detergent certification
program controls and prohibitions.
(a) Persons Liable--(1) Gasoline non-conformity. Where gasoline
contained in any storage tank at any facility owned, leased, operated,
controlled or supervised by any gasoline refiner, importer, carrier,
distributor, reseller, retailer, wholesale purchaser-consumer,
oxygenate blender, or detergent blender, is found in violation of any
of the prohibitions specified in Sec. 80.168(a), the following persons
shall be deemed in violation:
(i) Each gasoline refiner, importer, carrier, distributor,
reseller, retailer, wholesale purchaser-consumer, oxygenate blender, or
detergent blender, who owns, leases, operates, controls or supervises
the facility (including, but not limited to, a truck or individual
storage tank) where the violation is found;
(ii) Each gasoline refiner, importer, distributor, reseller,
retailer, wholesale purchaser-consumer, oxygenate blender, detergent
manufacturer, distributor, or blender, who refined, imported,
manufactured, sold, offered for sale, dispensed, supplied, offered for
supply, stored, detergent additized, transported, or caused the
transportation of the detergent-additized gasoline (or the base
gasoline component, the detergent component, or the detergent-additized
post-refinery component of the gasoline) that is in violation, and each
such party that caused the gasoline that is in violation to be present
in the gasoline distribution system; and
(iii) Each gasoline carrier who dispensed, supplied, stored, or
transported any gasoline in the storage tank containing gasoline found
to be in violation, and each detergent carrier who dispensed, supplied,
stored, or transported the detergent component of
[[Page 35374]]
any PRC or gasoline in the storage tank containing gasoline found to be
in violation, provided that EPA demonstrates, by reasonably specific
showings by direct or circumstantial evidence, that the gasoline or
detergent carrier caused the violation.
(2) Post-refinery component non-conformity. Where detergent-
additized PRC contained in any storage tank at any facility owned,
leased, operated, controlled or supervised by any gasoline refiner,
importer, carrier, distributor, reseller, retailer, wholesale
purchaser-consumer, oxygenate blender, detergent manufacturer, carrier,
distributor, or blender, is found in violation of the prohibitions
specified in Sec. 80.168(e), the following persons shall be deemed in
violation:
(i) Each gasoline refiner, importer, carrier, distributor,
reseller, retailer, wholesale-purchaser consumer, oxygenate blender,
detergent manufacturer, carrier, distributor, or blender, who owns,
leases, operates, controls or supervises the facility (including, but
not limited to, a truck or individual storage tank) where the violation
is found;
(ii) Each gasoline refiner, importer, distributor, reseller,
retailer, wholesale purchaser-consumer, oxygenate blender, detergent
manufacturer, distributor, or blender, who sold, offered for sale,
dispensed, supplied, offered for supply, stored, detergent additized,
transported, or caused the transportation of the detergent-additized
PRC (or the detergent component of the PRC) that is in violation, and
each such party that caused the PRC that is in violation to be present
in the PRC or gasoline distribution systems; and
(iii) Each carrier who dispensed, supplied, stored, or transported
any detergent-additized PRC in the storage tank containing PRC that is
in violation, and each detergent carrier who dispensed, supplied,
stored, or transported the detergent component of any detergent-
additized PRC which is in the storage tank containing detergent-
additized PRC found to be in violation, provided that EPA demonstrates
by reasonably specific showings by direct or circumstantial evidence,
that the gasoline or detergent carrier caused the violation.
(3) Detergent non-conformity. Where the detergent (prior to
additization) contained in any storage tank or container found at any
facility owned, leased, operated, controlled or supervised by any
gasoline refiner, importer, carrier, distributor, reseller, retailer,
wholesale purchaser-consumer, oxygenate blender, detergent
manufacturer, carrier, distributor, or blender, is found in violation
of the prohibitions specified in Sec. 80.168(d), the following persons
shall be deemed in violation:
(i) Each gasoline refiner, importer, carrier, distributor,
reseller, retailer, wholesale purchaser-consumer, oxygenate blender,
detergent manufacturer, carrier, distributor, or blender, who owns,
leases, operates, controls or supervises the facility (including, but
not limited to, a truck or individual storage tank) where the violation
is found;
(ii) Each gasoline refiner, importer, distributor, reseller,
retailer, wholesale purchaser-consumer, oxygenate blender, detergent
manufacturer, distributor, or blender, who sold, offered for sale,
dispensed, supplied, offered for supply, stored, transported, or caused
the transportation of the detergent that is in violation, and each such
party that caused the detergent that is in violation to be present in
the detergent, gasoline, or PRC distribution systems; and
(iii) Each gasoline or detergent carrier who dispensed, supplied,
stored, or transported any detergent which is in the storage tank or
container containing detergent found to be in violation, provided that
EPA demonstrates, by reasonably specific showings by direct or
circumstantial evidence, that the gasoline or detergent carrier caused
the violation.
(4) Volumetric additive reconciliation. Where a violation of the
volumetric additive reconciliation requirements established by
Sec. 80.168(b) has occurred, the following persons shall be deemed in
violation:
(i) Each detergent blender who owns, leases, operates, controls or
supervises the facility (including, but not limited to, a truck or
individual storage tank) where the violation has occurred; and
(ii) Each gasoline refiner, importer, carrier, distributor,
reseller, retailer, wholesale purchaser-consumer, or oxygenate blender,
and each detergent manufacturer, carrier, distributor, or blender, who
refined, imported, manufactured, sold, offered for sale, dispensed,
supplied, offered for supply, stored, transported, or caused the
transportation of the detergent-additized gasoline, the base gasoline
component, the detergent component, or the detergent-additized PRC of
the gasoline that is in violation, provided that EPA demonstrates, by
reasonably specific showings by direct or circumstantial evidence, that
such person caused the violation.
(5) Product transfer document. Where a violation of Sec. 80.168(c)
is found at a facility owned, leased, operated, controlled, or
supervised by any gasoline refiner, importer, carrier, distributor,
reseller, retailer, wholesale purchaser-consumer, oxygenate blender,
detergent manufacturer, carrier, distributor, or blender, the following
persons shall be deemed in violation: each gasoline refiner, importer,
carrier, distributor, reseller, retailer, wholesale purchaser-consumer,
oxygenate blender, detergent manufacturer, carrier, distributor, or
blender, who owns, leases, operates, control or supervises the facility
(including, but not limited to, a truck or individual storage tank)
where the violation is found.
(b) Branded Refiner Vicarious Liability. Where any violation of the
prohibitions specified in Sec. 80.168 has occurred, with the exception
of violations of Sec. 80.168(c), a refiner will also be deemed liable
for violations occurring at a facility operating under such refiner's
corporate, trade, or brand name or that of any of its marketing
subsidiaries. For purposes of this section, the word facility includes,
but is not limited to, a truck or individual storage tank.
(c) Defenses. (1) In any case in which a gasoline refiner,
importer, distributor, carrier, reseller, retailer, wholesale
purchaser-consumer, oxygenate blender, detergent distributor, carrier,
or blender, is in violation of any of the prohibitions of Sec. 80.168,
pursuant to paragraph (a) or (b) of this section as applicable, the
regulated party shall be deemed not in violation if it can demonstrate:
(i) That the violation was not caused by the regulated party or its
employee or agent (unless otherwise provided in this paragraph (c));
(ii) That product transfer documents account for the gasoline,
detergent, or detergent-additized PRC in violation and indicate that
the gasoline, detergent, or detergent-additized PRC satisfied relevant
requirements when it left the party's control; and
(iii) That the party has fulfilled the requirements of paragraphs
(c) (2) or (3) of this section, as applicable.
(2) Branded refiner. Where a branded refiner is in violation of any
of the prohibitions of Sec. 80.168 as a result of violations occurring
at a facility (including, but not limited to, a truck or individual
storage tank) which is operating under the corporate, trade or brand
name of a refiner or that of any of its marketing subsidiaries, the
refiner shall be deemed not in violation if it can demonstrate, in
addition to the defense requirements stated in paragraph (c)(1) of this
section, that the violation was caused by:
(i) An act in violation of law (other than these regulations), or
an act of sabotage or vandalism, whether or not
[[Page 35375]]
such acts are violations of law in the jurisdiction where the violation
of the prohibitions of Sec. 80.168 occurred; or
(ii) The action of any gasoline refiner, importer, reseller,
distributor, oxygenate blender, detergent manufacturer, distributor,
blender, or retailer or wholesale purchaser-consumer supplied by any of
these persons, in violation of a contractual undertaking imposed by the
refiner designed to prevent such action, and despite the implementation
of an oversight program, including, but not limited to, periodic review
of product transfer documents by the refiner to ensure compliance with
such contractual obligation; or
(iii) The action of any gasoline or detergent carrier, or other
gasoline or detergent distributor not subject to a contract with the
refiner but engaged by the refiner for transportation of gasoline, PRC,
or detergent, to a gasoline or detergent distributor, oxygenate
blender, detergent blender, gasoline retailer or wholesale purchaser
consumer, despite specification or inspection of procedures or
equipment by the refiner which are reasonably calculated to prevent
such action.
(iv) In this paragraph (c)(2), to show that the violation ``was
caused'' by any of the specified actions, the party must demonstrate by
reasonably specific showings, by direct or circumstantial evidence,
that the violation was caused or must have been caused by another.
(3) Detergent blender. In any case in which a detergent blender is
liable for violating any of the prohibitions of Sec. 80.168, the
detergent blender shall not be deemed in violation if it can
demonstrate, in addition to the defense requirements stated in
paragraph (c)(1) of this section, the following:
(i) That it obtained or supplied, as appropriate, prior to the
detergent blending, accurate written instructions from the detergent
manufacturer or other party with knowledge of such instructions,
specifying the appropriate LAC for the detergent, as specified in
Sec. 80.161(b)(1)(ii), together with any use restrictions which pertain
to this LAC pursuant to the detergent's certification; and
(ii) That it has implemented a quality assurance program that
includes, but is not limited to, a periodic review of its supporting
product transfer and volume measurement documents to confirm the
correctness of its product transfer and volumetric additive
reconciliation documents created for all products it additized.
(4) Detergent manufacturer.-- (i) Presumptive Liability Affirmative
Defense. Notwithstanding the provisions of paragraph (c)(1) of this
section, in any case in which a detergent manufacturer is liable for
violating any of the prohibitions of Sec. 80.168, the detergent
manufacturer shall be deemed not in violation if it can demonstrate
each of the following:
(A) Product transfer documents which account for the detergent
component of the product in violation and which indicate that such
detergent satisfied all relevant requirements when it left the
detergent manufacturer's control.
(B) Written blending instructions which, pursuant to
Sec. 80.161(c), were supplied by the detergent manufacturer to its
customer who purchased or obtained from the manufacturer the detergent
component of the product determined to be in violation. The written
blending instructions must have been supplied by the manufacturer prior
to the customer's use or sale of the detergent. The instructions must
accurately specify both the appropriate LAC for the detergent, pursuant
to Sec. 80.161(b)(1)(ii), plus any use restrictions which may pertain
to this LAC pursuant to the detergent's certification.
(C) If the detergent batch used in the noncomplying product was
produced less than one year before the manufacturer was notified by EPA
of the possible violation, then the manufacturer must provide FTIR test
results for the batch in question.
(1) The FTIR analysis may have been conducted on the subject
detergent batch at the time it was manufactured, or may be conducted on
a sample of that batch which the manufacturer retained for such purpose
at the time the batch was manufactured.
(2) To establish that, when it left the manufacturer's control, the
detergent component of the noncomplying product was in conformity with
the chemical composition and concentration specifications reported
pursuant to Sec. 80.161(b), the FTIR test results for the detergent
batch used in the noncomplying product must, in EPA's judgment, be
consistent with the FTIR results submitted at the time of registration
pursuant to Sec. 80.162(d).
(D) If the detergent batch used in the noncomplying product was
produced more than one year prior to the manufacturer's notification by
EPA of the possible violation, then the manufacturer must provide
either:
(1) FTIR test results for the batch in question as specified in the
preceding paragraph (c)(4)(i)(C) of this Sec. 80.169(c); or
(2) The following materials:
(i) Documentation for the batch in question, showing that its
measured viscosity, density, and basic nitrogen content, or any other
such physical parameter(s) which EPA may have approved for monitoring
production quality control, were within the acceptable range of
production values specified in the certification pursuant to
Sec. 80.162(e); and
(ii) If the detergent registration identifies polymeric
component(s) of the detergent package as the product(s) of other
chemical reactants, documentation that the reagents used to synthesize
the detergent batch in question were the same as those specified in the
registration and that they met the manufacturer's normal acceptance
criteria reported pursuant to Sec. 80.162(b)(1).
(ii) Detergent manufacturer causation liability. In any case in
which a detergent manufacturer is liable for a violation of
Sec. 80.168, and the manufacturer establishes an affirmative defense to
such liability pursuant to Sec. 80.169(c)(4)(i), the detergent
manufacturer will nonetheless be deemed liable for the violation of
Sec. 80.168 if EPA can demonstrate, by reasonably specific showings by
direct or circumstantial evidence, that the detergent manufacturer
caused the violation.
(5) Defense against liability where more than one party may be
liable for VAR violations. In any case in which a party is
presumptively or vicariously liable for a violation of Sec. 80.170,
except for the VAR record requirements pursuant to Sec. 80.170(g), such
party shall not be deemed liable if it can establish the following:
(i) Prior to the violation it had entered into a written contract
with another potentially liable detergent blender party (``the assuming
party''), under which that other party assumed legal responsibility for
fulfilling the VAR requirement that had been violated;
(ii) The contract included reasonable oversight provision to ensure
that the assuming party fulfilled its VAR responsibilities (including,
but not limited to, periodic review of VAR records) and the oversight
provision was actually implemented by the party raising the defense;
(iii) The assuming party is fiscally sound and able to pay its
penalty for the VAR violation; and
(iv) The employees or agents of the party raising the defense did
not cause the violation.
(6) Defense to liability for gasoline non-conformity violations
caused solely by the addition of misadditized ethanol or other PRC to
the gasoline. In any case in which a party is presumptively or
vicariously liable for a gasoline non-conformity violation of
Sec. 80.168(a)
[[Page 35376]]
caused solely by another party's addition of misadditized ethanol or
other PRC to the gasoline, the former party shall not be deemed liable
for the violation, provided that it can establish that it has fulfilled
the defense requirements of paragraphs (c)(1) (i) and (ii) of this
section.
(7) Detergent tank transitioning defenses. The commingling of two
detergents in the same detergent storage tank will not be deemed to
violate or cause violations of any of the provisions of this subpart,
provided the following conditions are met:
(i) The commingling must occur during a legitimate detergent
transitioning event, i.e., a shift from the use of one detergent to
another through the delivery of the new detergent into the same tank
that contains the original detergent; and
(ii) Any use restrictions applicable to the new detergent's
certification also apply to the combined detergents; and
(iii) The commingling event must be documented, either on the VAR
formula record or on attached supporting records; and
(iv) Notwithstanding any contrary provisions in Sec. 80.170, a VAR
formula record must be created for the combined detergents. The VAR
compliance period must begin no later than the time of the commingling
event. However, at the blender's option, the compliance period may
begin earlier, thus including use of the uncombined original detergent
within the same period, provided that the 31-day limitation pursuant to
Sec. 80.170(a)(6) is not exceeded; and
(v) The VAR formula record must also satisfy the requirements in
one of the following paragraphs (c)(7)(v) (A) through (C) of this
section, whichever applies to the commingling event. If neither
paragraph (c)(7)(v) (A) nor (B) of this section initially applies, then
the blender may drain and subsequently redeliver the original detergent
into the tank in restricted amounts, in order to meet the conditions of
paragraph (c)(7)(v) (A) or (B) of this section. Otherwise, the blender
must comply with paragraph (c)(7)(v)(C) of this section.
(A) If both detergents have the same LAC, and the original
detergent accounts for no more than 20 percent of the tank's total
delivered volume after addition of the new detergent, then the VAR
formula record is required to identify only the use of the new
detergent.
(B) If the two detergents have different LACs and the original
detergent accounts for 10 percent or less of the tank's total delivered
volume after addition of the new detergent, then the VAR formula record
is required to identify only the use of the new detergent, and must
attain the LAC of the new detergent. If the original detergent's LAC is
greater than that of the new detergent, then the compliance period may
begin earlier than the date of the commingling event (pursuant to
paragraph (c)(7)(iv) of this section) only if the original detergent
does not exceed 10 percent of the total detergent used during the
compliance period.
(C) If neither of the preceding paragraphs (c)(7)(v) (A) or (B) of
this section applies, then the VAR formula record must identify both of
the commingled detergents, and must use and attain the higher LAC of
the two detergents. Once the commingled detergent has been depleted by
an amount equal to the volume of the original detergent in the tank at
the time the new detergent was added, subsequent VAR formula records
must identify and use the LAC of only the new detergent.
(8) Transition from noncertified to certified detergent.
Notwithstanding the prohibitions in Secs. 80.161(a)(3) and 80.168,
after June 30, 1997, the addition to gasoline or PRC of a detergent
which has not been certified pursuant to Sec. 80.161 shall not be
deemed to violate or cause violations of provisions of this subpart,
provided that all of the following conditions are met:
(i) The detergent was received by the detergent blender prior to
July 1, 1997 and is used prior to January 1, 1998. Documentation which
supports these dates must be maintained for at least five years and
must be available for EPA's inspection upon request;
(ii) The detergent is added to gasoline or PRC only in combination
with a certified detergent and, at any one time, accounts for no more
than 10 percent of the detergent tank's delivered volume;
(iii) The total volume of detergent added to the gasoline or PRC is
sufficient to attain the LAC of the certified detergent; and
(iv) Use restrictions associated with the certified detergent are
adhered to.
(g) Procedures for curing use restrictions. In the case of a fuel
product which has been additized with a detergent under the conditions
of a use-restricted certification (pursuant to Sec. 80.163), the use
restriction can be negated (``cured'') by application of the procedures
in this paragraph (g). A party shall not be liable for violations of
Sec. 80.168(a) or (e) caused solely by the additization or subsequent
use of gasoline or PRC in violation of such use restriction, provided
that the following steps and conditions are applied before EPA has
identified the nonconformity and prior to the sale or transfer of
nonconforming product to the ultimate consumer:
(i) Additional detergent must be added in sufficient quantity to
provide effective deposit control, taking into account both the amount
of detergent previously added and the final anticipated volume and
composition of the subject fuel product.
(ii) The additional detergent may be either the original detergent
or a different detergent, so long as the additional detergent has been
separately certified both for use with the subject fuel product and for
use with the type of fuel product associated with the restriction which
the party wishes to negate by the curing procedure. Detergents which
have not been separately certified for both types of fuel products are
not eligible to be used for this curing procedure.
(iii) If a fuel product has been detergent additized under the
conditions of a use-restricted certification which would preclude the
addition of an oxygenate or other PRC, then such oxygenate or other PRC
may nevertheless be added to that fuel product under this curing
procedure, provided that additional eligible detergent is added, in an
amount which equals or exceeds the number of gallons (DA) derived
from the following equation:
Additional Detergent Volume=DA=Vp(LAC2-LAC1) +
V(1-p)LAC2
Where:
V=Final volume of fuel product (in gallons)
p=Fraction of final fuel product composed of the original (uncombined)
fuel product
LAC2=Detergent's LAC certified for the final combined fuel product
(in gallons of detergent per 1,000 gallons of fuel product)
LAC1=Detergent's LAC certified for the original (uncombined) fuel
product (in gallons of detergent per 1,000 gallons of fuel product)
(iv) In other instances in which gasoline or PRC has been additized
in violation of a detergent use restriction, and no additional fuel
components are to be added, such use restriction can be cured by the
addition of eligible detergent in an amount which equals or exceeds the
number of gallons (DA) derived from the following equation, which is a
simplified version of the previous equation:
Additional Detergent Volume=DA=V(LAC2-LAC1)
Where:
[[Page 35377]]
V=Volume of fuel product (in gallons) to be cured of the use
restriction
LAC2=Detergent's LAC certified for the fuel product without the
use restriction (in gallons of detergent per 1,000 gallons of fuel
product)
LAC1=Detergent's LAC certified for the fuel product with the use
restriction to be cured (in gallons of detergent per 1,000 gallons of
fuel product)
(v) In all such instances, a curing VAR must be created and
maintained, which documents the use of the appropriate equation as
specified above, and otherwise complies with the requirements of
Sec. 80.170(f)(6).
Sec. 80.170 Volumetric additive reconciliation (VAR), equipment
calibration, and recordkeeping requirements.
This section contains requirements for automated detergent blending
facilities and hand-blending detergent facilities. All gasoline and all
PRC intended for use in gasoline must be additized unless otherwise
noted in supporting VAR records, and must be accounted for in VAR
records. The VAR reconciliation standard is attained under this section
when the actual concentration of detergent used per VAR formula record
equals or exceeds the applicable LAC certified for that detergent
pursuant to Sec. 80.161(b)(3)(ix) or, if appropriate, Sec. 80.161(d).
If a given detergent package has been certified under more than one
certification option pursuant to Sec. 80.163, then a separate VAR
formula record must be created for gasoline or PRC additized on the
basis of each certification and its respective LAC. In such cases, the
amount of the detergent used under different certification options must
be accurately and separately measured, either through the use of a
separate storage tank, a separate meter, or some other measurement
system that is able to accurately distinguish its use. Recorded volumes
of gasoline, detergent, and PRC must be expressed to the nearest gallon
(or smaller units), except that detergent volumes of five gallons or
less must be expressed to the nearest tenth of a gallon (or smaller
units). However, if the blender's equipment cannot accurately measure
to the nearest tenth of a gallon, then such volumes must be rounded
downward to the next lower gallon. PRC included in the reconciliation
must be identified. Each VAR formula record must also contain the
following information:
(a) Automated blending facilities. In the case of an automated
detergent blending facility, for each VAR period, for each detergent
storage system and each detergent in that storage system, the following
must be recorded:
(1) The manufacturer and commercial identifying name of the
detergent additive package being reconciled, the LAC, and any use
restriction applicable to the LAC. The LAC must be expressed in terms
of gallons of detergent per thousand gallons of gasoline or PRC, and
expressed to four digits. If the detergent storage system which is the
subject of the VAR formula record is a proprietary system under the
control of a customer, this fact must be indicated on the record.
(2) The total volume of detergent blended into gasoline and PRC, in
accordance with one of the following paragraphs (a)(2)(i) or (ii) of
this section, as applicable.
(i) For a facility which uses in-line meters to measure detergent
usage, the total volume of detergent measured, together with supporting
data which includes one of the following: the beginning and ending
meter readings for each meter being measured, the metered batch volume
measurements for each meter being measured, or other comparable metered
measurements. The supporting data may be supplied on the VAR formula
record or in the form of computer printouts or other comparable VAR
supporting documentation.
(ii) For a facility which uses a gauge to measure the inventory of
the detergent storage tank, the total volume of detergent shall be
calculated from the following equation:
Detergent Volume=(A)-(B)+(C)-(D)
Where:
A=Initial detergent inventory of the tank
B=Final detergent inventory of the tank
C=Sum of any additions to detergent inventory
D=Sum of any withdrawals from detergent inventory for purposes other
than the additization of gasoline or PRC.
The value of each variable in this equation must be separately recorded
on the VAR formula record. In addition, a list of each detergent
addition included in variable C and a list of each detergent withdrawal
included in variable D must be provided, either on the formula record
or as VAR supporting documentation.
(3) The total volume of gasoline plus PRC to which detergent has
been added, together with supporting data which includes one of the
following: the beginning and ending meter measurements for each meter
being measured, the metered batch volume measurements for each meter
being measured, or other comparable metered measurements. The
supporting data may be supplied on the VAR formula record or in the
form of computer printouts or other comparable VAR supporting
documentation. If gasoline has intentionally been overadditized in
anticipation of the later addition of unadditized PRC, then the total
volume of gasoline plus PRC recorded must include the expected amount
of unadditized PRC to be added later. In addition, the amount of
gasoline which was overadditized for this purpose must be specified.
(4) The actual detergent concentration, calculated as the total
volume of detergent added (pursuant to paragraph (a)(2) of this
section), divided by the total volume of gasoline plus PRC (pursuant to
paragraph (a)(3) of this section). The concentration must be calculated
and recorded to four digits.
(5) A list of each detergent concentration rate initially set for
the detergent that is the subject of the VAR record, together with the
date and description of each adjustment to any initially set
concentration. The concentration adjustment information may be supplied
on the VAR formula record or in the form of computer printouts or other
comparable VAR supporting documentation. No concentration setting is
permitted below the applicable certified LAC, except as may be modified
pursuant to Sec. 80.161(d) or as described in paragraph (a)(7) of this
section.
(6) The dates of the VAR period, which shall be no longer than
thirty-one days. If the VAR period is contemporaneous with a calendar
month, then specifying the month will fulfill this requirement; if not,
then the beginning and ending dates and times of the VAR period must be
listed. The times may be supplied on the VAR formula record or in
supporting documentation. Any adjustment to any detergent concentration
rate more than 10 percent over the concentration rate initially set in
the VAR period shall terminate that VAR period and initiate a new VAR
period, except as provided in paragraph (a)(7) of this section.
(7) The concentration setting for a detergent injector may be set
below the applicable LAC, or it may be adjusted more than 10 percent
above the concentration initially set in the VAR period without
terminating that VAR period, provided that:
(i) The purpose of the change is to correct a batch misadditization
prior to the end of the VAR period and prior to the transfer of the
batch to another party, or to correct an equipment malfunction; and
(ii) The concentration is immediately returned after the correction
to a concentration that fulfills the
[[Page 35378]]
requirements of paragraphs (a) (5) and (6) of this section; and
(iii) The blender creates and maintains documentation establishing
the date and adjustments of the correction; and
(iv) If the correction is initiated only to rectify an equipment
malfunction, and the amount of detergent used in this procedure is not
added to gasoline within the compliance period, then this amount is
subtracted from the detergent volume listed on the VAR formula record.
(8) If unadditized gasoline has been transferred from the facility,
other than bulk transfers from refineries or pipelines to non-retail
outlets or non-WPC facilities, the total amount of such gasoline must
be specified.
(b) Non-automated facilities. In the case of a facility in which
hand blending or any other non-automated method is used to blend
detergent, for each detergent and for each batch of gasoline and each
batch of PRC to which the detergent is being added, the following shall
be recorded:
(1) The manufacturer and commercial identifying name of the
detergent additive package being reconciled, the LAC, and any use
restriction applicable to the LAC. The LAC must be expressed in terms
of gallons of detergent per thousand gallons of gasoline or PRC, and
expressed to four digits.
(2) The date of the additization that is the subject of the VAR
formula record.
(3) The volume of added detergent.
(4) The volume of the gasoline and/or PRC to which the detergent
has been added. If gasoline has intentionally been overadditized in
anticipation of the later addition of unadditized PRC, then the total
volume of gasoline plus PRC recorded must include the expected amount
of unadditized PRC to be added later. In addition, the amount of
gasoline which was overadditized for this purpose must be specified.
(5) The brand (if known), grade, and leaded/unleaded status of
gasoline, and/or the type of PRC.
(6) The actual detergent concentration, calculated as the volume of
added detergent (pursuant to paragraph (b)(3) of this section), divided
by the volume of gasoline and/or PRC (pursuant to paragraph (b)(4) of
this section). The concentration must be calculated and recorded to
four digits.
(c) Every VAR formula record created pursuant to paragraphs (a) and
(b) of this section shall contain the following:
(1) The signature of the creator of the VAR record;
(2) The date of the creation of the VAR record; and
(3) A certification of correctness by the creator of the VAR
record.
(d) Electronically-generated VAR formula and supporting records.
(1) Electronically-generated records are acceptable for VAR formula
records and supporting documentation (including PTDs), provided that
they are complete, accessible, and easily readable. VAR formula records
must also be stored with access and audit security, which must restrict
to a limited number of specified people those who have the ability to
alter or delete the records. In addition, parties maintaining records
electronically must make available to EPA the hardware and software
necessary to review the records.
(2) Electronically-generated VAR formula records may use an
electronic user identification code to satisfy the signature
requirements of paragraph (c)(1) of this section, provided that:
(i) The use of the ID is limited to the record creator; and
(ii) A paper record is maintained, which is signed and dated by the
VAR formula record creator, acknowledging that the use of that
particular user ID on a VAR formula record is equivalent to his/her
signature on the document.
(e) Automated detergent blenders must calibrate their detergent
equipment once in each calendar half year, with the acceptable
calibrations being no less than one hundred twenty days apart.
Equipment recalibration is also required each time the detergent
package is changed, unless written documentation indicates that the new
detergent package has the same viscosity as the previous detergent
package. Detergent package change calibrations may be used to satisfy
the semiannual requirement provided that the calibrations occur in the
appropriate half calendar year and are no less than one hundred twenty
days apart.
(f) The following VAR supporting documentation must also be created
and maintained:
(1) For all automated detergent blending facilities, documentation
reflecting performance of the calibrations required by paragraph (e) of
this section, and any associated adjustments of the automated detergent
equipment;
(2) For all hand-blending facilities which are terminals, a record
specifying, for each VAR period, the total volume in gallons of
transfers from the facility of unadditized base gasoline;
(3) For all detergent blending facilities, product transfer
documents for all gasoline, detergent and detergent-additized PRC
transferred into or out of the facility; in addition, bills of lading,
transfer, or sale for all unadditized PRC transferred into the
facility;
(4) For all automated detergent blending facilities, documentation
establishing the brands (if known) and grades of the gasoline which is
the subject of the VAR formula record; and
(5) For all hand blending detergent blenders, the documentation, if
in the party's possession, supporting the volumes of gasoline, PRC, and
detergent reported on the VAR formula record.
(6) For all detergent blending facilities, documentation
establishing the curing of a batch or amount of misadditized gasoline
or PRC, or the curing of a use restriction on the additized gasoline or
PRC, and providing at least the following information: the date of the
curing procedure; the problem that was corrected; the amount, name, and
LAC of the original detergent used; the amount, name, and LAC of the
added curing detergent; and the actual detergent concentration attained
in, and the volume of, the total cured product.
(g) Document retention and availability. All detergent blenders
shall retain the documents required under this section for a period of
five years from the date the VAR formula records and supporting
documentation are created, and shall deliver them upon request to the
EPA Administrator or the Administrator's authorized representative.
(1) Except as provided in paragraph (g)(3) of this section,
automated detergent blender facilities and hand-blender facilities
which are terminals, which physically blend detergent into gasoline,
must make immediately available to EPA, upon request, the preceding
twelve months of VAR formula records plus the preceding two months of
VAR supporting documentation.
(2) Except as provided in paragraph (g)(3) of this section, other
hand-blending detergent facilities which physically blend detergent
into gasoline must make immediately available to EPA, upon request, the
preceding two months of VAR formula records and VAR supporting
documentation.
(3) Facilities which have centrally maintained records at other
locations, or have customers who maintain their own records at other
locations for their proprietary detergent systems, and which can
document this fact to the Agency, may have until the start of the next
business day after the EPA request to supply VAR supporting
documentation, or longer if approved by the Agency.
(4) In this paragraph (g) of this section, the term immediately
available
[[Page 35379]]
means that the records must be provided, electronically or otherwise,
within approximately one hour of EPA's request, or within a longer time
frame as approved by EPA.
Sec. 80.171 Product transfer documents (PTDs).
(a) Contents. For each occasion when any gasoline refiner,
importer, reseller, distributor, carrier, retailer, wholesale
purchaser-consumer, oxygenate blender, detergent manufacturer,
distributor, carrier, or blender, transfers custody or title to any
gasoline, detergent, or detergent-additized PRC other than when
detergent-additized gasoline is sold or dispensed at a retail outlet or
wholesale purchaser-consumer facility to the ultimate consumer, the
transferor shall provide to the transferee, and the transferee shall
acquire from the transferor, documents which accurately include the
following information:
(1) The name and address of the transferee and transferor; the
address requirement may be fulfilled, in the alternative, through
separate documentation which establishes said addresses and is
maintained by the parties and made available to EPA for the same length
of time as required for the PTDs, provided that the normal business
procedure of these parties is not to identify addresses on PTDs.
(2) The date of the transfer.
(3) The volume of product transferred.
(4)(i) The identity of the product being transferred (i.e., its
identity as base gasoline, detergent, detergent-additized gasoline, or
specified detergent-additized oxygenate or detergent-additized gasoline
blending stock that comprises a detergent-additized PRC). PTDs for
detergent-additized gasoline or PRC are not required to identify the
particular detergent used to additize the product.
(ii) If the product being transferred consists of two or more
different types of product subject to this regulation, i.e., base
gasoline, detergent-additized gasoline, or specified detergent-
additized PRC, component, then the PTD for the commingled product must
identify each such type of component contained in the commingled
product.
(5) If the product being transferred is gasoline to which an
oxygenate or a PRC has been added, the PTD for the gasoline must
identify the oxygenate or PRC. The PTDs for commingled additized
gasolines must identify all the oxygenates and PRCs added to either
component.
(6) If the product being transferred is base gasoline, then in
addition to the base gasoline identification, the following warning
must be stated on the PTD: ``Not for sale to the ultimate consumer''.
If, pursuant to Sec. 80.173(a), the product being transferred is exempt
base gasoline to be used for research, development, or test purposes
only, the following warning must also be stated on the PTD: ``For use
in research, development, and test programs only''.
(7) The name of the detergent additive as reported in its
registration must be used to identify the detergent package on its PTD.
(8) If the product being transferred is leaded gasoline, then the
PTD must disclose that the product contains lead and/or phosphorous, as
applicable.
(9) If the product being transferred is gasoline or PRC that has
been additized with detergent under a PADD-specific or CARB-based
certification, or under a certification option which creates an
oxygenate or PRC use restriction, then the PTD for the additized
product must identify the applicable use restriction. The PTD for
commingled additized gasolines or PRCs containing such restrictions
must indicate the applicable restriction(s) from each component.
(10) If the product being transferred is detergent-additized
gasoline or PRC that has been overadditized in anticipation of the
later (or earlier) addition of PRC, then the PTD must include a
statement that the product has been overadditized to account for a
specified volume in gallons, or a specified percentage of the product's
total volume, of additional, specified PRC.
(11) If a detergent package has been certified under only one
certification option, and that option places a use restriction on the
respective LAC, then the PTD must identify the detergent as use-
restricted; the PTD for a detergent package certified with more than
one LAC must identify that the detergent has special use options
available.
(12) Base gasoline designated for fuel-specific certification.
(i) The PTD for segregated base gasoline intended for additization
with a specific fuel-specific detergent pursuant to Sec. 80.163(c) must
indicate that it is for use with the designated, fuel-specific
detergent.
(ii) A PTD for base gasoline may not indicate that the product is
for use with a designated, fuel-specific detergent, unless the entire
quantity of base gasoline is from the segregated fuel supply specified
in the detergent's certification and the gasoline contains only those
oxygenates or PRCs, if any, specified and approved in the detergent's
certification.
(iii) If, pursuant to Sec. 80.163(c)(3), the fuel-specific
certification for the segregated pool of gasoline has established that
no detergent additives are necessary for such gasoline to comply with
this subpart, then the PTD must identify this gasoline as detergent-
equivalent gasoline.
(b) Use of product codes and other non-regulatory language. (1)
Product codes and other non-regulatory language may not be used as a
substitute for the specified PTD warning language specified in
paragraph (a)(6) of this section for base gasoline, except that:
(i) The specified warning language may be omitted for bulk
transfers of base gasoline from a refinery to a pipeline if there is a
prior written agreement between the parties specifying that all such
gasoline is unadditized and will not be transferred to the ultimate
consumer;
(ii) Product codes may be used as a substitute for the specified
warning language provided that the PTD is an electronic data
interchange (EDI) document being used solely for the transfer of title
to the base gasoline, and provided that the product codes otherwise
comply with the requirements of this section.
(2) Product codes and other non-regulatory language may not be used
in place of the PTD language specified in paragraph (a)(11) of this
section regarding detergent package use restrictions.
(3) Product codes and other language not specified in this section
may otherwise be used to comply with PTD information requirements,
provided that they are clear, accurate, and not misleading.
(4) If product codes are used, they must be standardized throughout
the distribution system in which they are used, and downstream parties
must be informed of their full meaning.
(c) PTD exemption for small transfers of additized gasoline.
Transfers of additized gasoline are exempt from the PTD requirements of
this section provided all the following conditions are satisfied:
(1) The product is being transferred by a distributor who is not
the product's detergent blender; and
(2) The recipient is a wholesale purchaser-consumer (WPC) or other
ultimate consumer of gasoline, for its own use only or for that of its
agents or employees; and
(3) The volume of additized gasoline being transferred is no
greater than 550 gallons.
(d) Recordkeeping Period. Any person creating, providing or
acquiring product transfer documentation for gasoline, detergent, or
detergent-additized PRC shall retain the documents required by this
section for a period of five years from the date the product transfer
[[Page 35380]]
documentation was created, received or transferred, as applicable, and
shall deliver such documents to EPA upon request. WPCs are not required
to retain PTDs of additized gasoline received by them.
Sec. 80.172 Penalties.
(a) General. Any person who violates any prohibition or affirmative
requirement of Sec. 80.168 shall be liable to the United States for a
civil penalty of not more than the sum of $25,000 for every day of such
violation and the amount of economic benefit or savings resulting from
the violation.
(b) Gasoline non-conformity. Any violation of Sec. 80.168(a) shall
constitute a separate day of violation for each and every day the
gasoline in violation remains at any place in the gasoline distribution
system, beginning on the day that the gasoline is in violation of the
respective prohibition and ending on the last day that such gasoline is
offered for sale or is dispensed to any ultimate consumer.
(c) Detergent non-conformity. Any violation of Sec. 80.168(d) shall
constitute a separate day of violation for each and every day the
detergent in violation remains at any place in the gasoline or
detergent distribution system, beginning on the day that the detergent
is in violation of the prohibition and ending on the last day that
detergent-additized gasoline, containing the subject detergent as a
component thereof, is offered for sale or is dispensed to any ultimate
consumer.
(d) Post-refinery component non-conformity. Any violation of
Sec. 80.168(e) shall constitute a separate day of violation for each
and every day the PRC in violation remains at any place in the PRC or
gasoline distribution system, beginning on the day that the PRC is in
violation of the respective prohibition and ending on the last day that
detergent-additized gasoline containing the PRC is offered for sale or
is dispensed to any ultimate consumer.
(e) Product transfer document non-conformity. Any violation of
Sec. 80.168(c) shall constitute a separate day of violation for every
day the PTD is not fully in compliance. This is to begin on the day
that the PTD is created or should have been created and to end at the
later of the following dates:
(1) The day that the document is corrected and comes into
compliance; or
(2) The day that gasoline not additized in conformity with interim
detergent program requirements, as a result of the PTD non-conformity,
is offered for sale or is dispensed to the ultimate consumer.
(f) Volumetric additive reconciliation recordkeeping non-
conformity. Any VAR recordkeeping violation of Sec. 80.168(b) shall
constitute a separate day of violation for every day that VAR
recordkeeping is not fully in compliance. Each element of the VAR
record keeping program that is not in compliance shall constitute a
separate violation for purposes of this section.
(g) Volumetric additive reconciliation compliance standard non-
conformity. Any violation of the VAR compliance standard established in
Sec. 80.170 shall constitute a separate day of violation for each and
every day of the VAR compliance period in which the standard was
violated.
(h) Volumetric additive reconciliation equipment calibration non-
conformity. Any VAR equipment calibration violation of Sec. 80.168(b)
shall constitute a separate day of violation for every day a VAR
equipment calibration requirement is not met.
Sec. 80.173 Exemptions.
(a) Research, development, and testing exemptions. Any detergent
that is either in a research, development, or test status, or is sold
to petroleum, automobile, engine, or component manufacturers for
research, development, or test purposes, or any gasoline to be used by,
or under the control of, petroleum, additive, automobile, engine, or
component manufacturers for research, development, or test purposes, is
exempted from the provisions of the detergent certification program,
provided that:
(1) The detergent (or fuel containing the detergent), or the
gasoline, is kept segregated from non-exempt product, and the party
possessing the product maintains documentation identifying the product
as research, development, or testing detergent or fuel, as applicable,
and stating that it is to be used only for research, development, or
testing purposes; and
(2) The detergent (or fuel containing the detergent), or the
gasoline, is not sold, dispensed, or transferred, or offered for sale,
dispensing, or transfer, from a retail outlet. It shall also not be
sold, dispensed, or transferred or offered for sale, dispensing, or
transfer from a wholesale purchaser-consumer facility, unless such
facility is associated with detergent, fuel, automotive, or engine
research, development or testing; and
(3) The party using the product for research, development, or
testing purposes, or the party sponsoring this usage, notifies the EPA,
on at least an annual basis and prior to the use of the product, of the
purpose(s) of the program(s) in which the product will be used and the
anticipated volume of the product to be used. The information must be
submitted to the address or fax number specified in Sec. 80.174(c).
(b) Racing fuel and aviation fuel exemptions. Any fuel that is
refined, sold, dispensed, transferred, or offered for sale, dispensing,
or transfer as automotive racing fuel or as aircraft engine fuel, is
exempted from the provisions of this subpart, provided that:
(1) The fuel is kept segregated from non-exempt fuel, and the party
possessing the fuel for the purposes of refining, selling, dispensing,
transferring, or offering for sale, dispensing, or transfer as
automotive racing fuel or as aircraft engine fuel, maintains
documentation identifying the product as racing fuel, restricted for
non-highway use in racing motor vehicles, or as aviation fuel,
restricted for use in aircraft, as applicable;
(2) Each pump stand at a regulated party's facility, from which
such fuel is dispensed, is labeled with the applicable fuel
identification and use restrictions described in paragraph (b)(1) of
this section; and
(3) The fuel is not sold, dispensed, transferred, or offered for
sale, dispensing, or transfer for highway use in a motor vehicle.
(c) California gasoline exemptions. (1) Gasoline or PRC which is
additized in the state of California is exempt from the VAR provisions
in Secs. 80.168 (b) and (e) and 80.170, provided that:
(i) For all such gasoline or PRC, whether intended for sale within
or outside of California, records of the type required for California
gasoline (specified in title 13, California Code of Regulations,
section 2257) are maintained; and
(ii) Such records, with the exception of daily additization
records, are maintained for a period of five years from the date they
were created and are delivered to EPA upon request.
(2) Gasoline or PRC that is transferred and/or sold solely within
the state of California is exempt from the PTD provisions of the
detergent certification program, specified in Secs. 80.168(c) and
80.171.
(3) Nothing in this paragraph (c) exempts such gasoline or PRC from
the requirements of Sec. 80.168 (a) and (e), as applicable. EPA will
base its determination of California gasoline's conformity with the
detergent's LAC on the additization records required by CARB, or
records of the same type.
[[Page 35381]]
Sec. 80.174 Addresses.
(a) The detergent additive sample required under Sec. 80.161(b)(2)
shall be sent to: Manager, Fuels and Technical Analysis Group, Testing
Services Division, U.S. Environmental Protection Agency, National
Vehicle and Fuel Emissions Laboratory, 2565 Plymouth Road, Ann Arbor,
Michigan 48105.
(b) Other detergent registration and certification data, and
certain other information which may be specified in this subpart, shall
be sent to: Detergent Additive Certification, Director, Fuels and
Energy Division, U.S. Environmental Protection Agency (6406J), 401 M
Street, SW., Washington, DC 20460.
(c) Notifications to EPA regarding program exemptions, detergent
dilution and commingling, and certain other information which may be
specified in this subpart, shall be sent to: Detergent Enforcement
Program, U.S. Environmental Protection Agency, Suite 214, 12345 West
Alameda Parkway, Denver, CO 80228, (FAX 303-969-6490).
[FR Doc. 96-16666 Filed 7-3-96; 8:45 am]
BILLING CODE 6560-50-P