[Federal Register Volume 62, Number 215 (Thursday, November 6, 1997)]
[Rules and Regulations]
[Pages 59998-60001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29391]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[FRL-5917-9]


Removal of Requirement in Gasoline Deposit Control Additives Rule 
Regarding the Identification of the Oxygenate Content of Transferred 
Gasoline

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is amending the gasoline deposit control additives 
program, (the ``detergent rule'') to remove the requirement that 
certain information on the oxygenate content of transferred gasoline 
must be included in the gasoline's product transfer document. EPA is 
taking this action to avoid unnecessary disruption to the gasoline 
distribution system and because the Agency believes that it will result 
in no negative environmental impact.
    In the proposed rules section of today's Federal Register, EPA is 
proposing the same action covered by this direct final rule (i.e., to 
amend the detergent rule to remove the requirement that certain 
information on the oxygenate content of transferred gasoline must be 
included in the gasoline's product transfer document), as well as 
several other actions impacting the detergent rule. If adverse comment 
or a request for a public hearing is received on this direct final 
rule, EPA will withdraw the direct final rule and address the comments 
received in a subsequent final rule on the related proposed rule. No 
additional

[[Page 59999]]

opportunity for public comment on this removal of certain detergent 
rule product transfer document oxygenate information will be provided.

DATES: This action will become effective on January 5, 1998, unless 
notice is received by December 8, 1997 from someone who wishes to 
submit adverse comment or requests an opportunity for a public hearing. 
If such notice is received, EPA will withdraw this direct final rule, 
and a timely notice will be published in the Federal Register to 
indicate the withdrawal.

ADDRESSES: Interested parties may submit written comments (in duplicate 
if possible) to 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 Agency also 
requests that a separate copy be sent to the contact person listed 
below. The docket is open for public inspection from 8:00 a.m. until 
5:30 p.m. Monday through Friday, except on government holidays. As 
provided in 40 CFR part 2, a reasonable fee may be charged for copying 
docket materials.
    This direct final rule is also available electronically on the day 
of publication from the Office of the Federal Register internet Web 
site listed below. A prepublication electronic copy of this notice is 
also available from the EPA Office of Mobile Sources Web site listed 
below. This service is free of charge, except for any cost that you 
already incur for internet connectivity.
Federal Register Web Site:

    http://www.epa.gov/docs/fedrgstr/EPA-AIR/ (Either select desired 
date or use Search feature.)
Office of Mobile Sources Web Site:
    http://www.epa.gov/OMSWWW/ (Look in ``What's New'' or under the 
specific rulemaking topic.)

    Please note that due to differences between the software used to 
develop the document and the software into which the document may be 
downloaded, changes in format, page length, etc. may occur.

FOR FURTHER INFORMATION 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:

Table of Contents

I. Regulated Entities
II. Introduction
III. Removal of Identification Requirement of Specific Oxygenate 
Content on Gasoline Product Transfer Documents (PTDs)
    A. Background
    B. Rule Amendment
IV. Environmental Impact
V. Economic Impact and Impact on Small Entities
VI. Public Participation and Effective Date
VII. Executive Order 12866
VIII. Unfunded Mandates
IX. Paperwork Reduction Act
X. Submission to Congress and General Accounting Office
XI. Statutory Authority

I. 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:

------------------------------------------------------------------------
              Category                  Examples of regulated entities  
------------------------------------------------------------------------
Industry............................  Gasoline refiners and importers,  
                                       Gasoline terminals, Detergent    
                                       blenders, Gasoline truckers,     
                                       Gasoline retailers and wholesale 
                                       purchaser-consumers, and         
                                       Detergent manufacturers.         
------------------------------------------------------------------------

    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 person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

II. Introduction

    Section 211(l) of the Clean Air Act (``CAA'') requires that, by 
January 1, 1995, all gasoline must contain detergent additives to 
prevent the accumulation of deposits in motor vehicle engines and fuel 
supply systems. This CAA section also requires EPA to promulgate 
specifications for the detergent additives. Detergent additives prevent 
the accumulation of engine and fuel supply system deposits that have 
adverse effects on vehicle emissions as well as on fuel economy and 
driveability.
    In response to section 211(l)'s requirements, EPA published a 
Notice of Proposed Rulemaking (``NPRM'') on December 6, 1993 (59 FR 
64213) proposing a detergent additives regulatory program. The 
detergent program was finalized in two parts. Final regulations for the 
interim detergent program, requiring the use of detergent additives in 
gasoline but not mandating specific detergent efficiency testing, were 
published on October 14, 1994 (59 FR 54678). Final regulations for the 
detergent certification program, mandating the use of certified 
detergents with specified detergent efficiency testing, were published 
on July 5, 1996 (61 FR 35310).
    One important implementation issue that has arisen since the 
publication of the detergent certification rule concerns the 
requirement that the product transfer documents (PTDs) for gasoline 
transfers must identify all oxygenates found in the gasoline. 40 CFR 
80.158(a)(5) and 80.171(a)(5). Members of the gasoline refining and 
distribution industry informed EPA that this requirement would, as an 
unintended consequence, significantly disrupt gasoline distribution. 
\1\
---------------------------------------------------------------------------

    \1\ Letter to Judith Lubow, Office of Enforcement and Compliance 
Assurance (OECA), EPA, from C.J. Krambuhl, Director, Manufacturing, 
Distribution, and Marketing, American Petroleum Institute (API), 
August 14, 1996, Docket item VI--D-01.
---------------------------------------------------------------------------

    For the reasons described below, EPA exercised its enforcement 
discretion and announced by letter to the American Petroleum Institute 
(``API'') that it would temporarily not enforce the PTD oxygenate 
identification requirement pending resolution of the issue through a 
rulemaking or until September 3, 1997, whichever occurrence came first. 
\2\ The Agency reserved the right to rescind the exercise of this 
enforcement discretion if it determined that restricted-use detergents 
were actually being certified or that the PTD oxygenate identification 
requirements otherwise became appropriate. The Agency further advised 
that if violations involving the improper use of oxygenate-restricted 
detergents occurred, parties wishing to successfully assert an 
affirmative defense to liability for such violations might need to 
provide information establishing the appropriate oxygenate content of 
the gasoline in question. Subsequently, EPA extended this exercise of 
enforcement discretion until implementation of this Direct Final Rule 
which removes the specified PTD

[[Page 60000]]

oxygenate requirement, or until December 31, 1997, whichever comes 
first. \3\
---------------------------------------------------------------------------

    \2\ Letter to C.J. Krambuhl, API, from Steven A. Herman, 
Assistant Administrator, OECA, EPA, August 28, 1996, Docket item 
VII-C-01.
    \3\ Letter to C.J. Krambuhl, API, from Steven A. Herman, 
Assistant Administrator, OECA, EPA, September 4, 1997, Docket item 
VII-C-02.
---------------------------------------------------------------------------

III. Removal of Identification Requirement of Specific Oxygenate 
Content on Gasoline Product Transfer Documents (PTDs)

A. Background

    The gasoline detergent additive program requires all regulated 
parties transferring products controlled under the program to provide 
to the transferee PTDs giving pertinent information about the products 
transferred. (40 CFR 80.158 and 80.171) The products subject to the 
detergent program PTD requirements are gasoline, detergent additives, 
and additized components, such as ethanol, which are blended into 
gasoline after the refinery process (additized post-refinery 
components, or ``PRC''). For transfers of these regulated products, the 
PTDs must identify the parties to the transfer, the product being 
transferred, and other information about the product's regulatory 
status.
    One such requirement is that PTDs for transferred gasoline must 
identify all oxygenates and PRCs contained in the gasoline. Further, if 
the gasoline is comprised of commingled fuels, all oxygenates and PRCs 
in the fuels comprising the commingled product must be identified. (40 
CFR 80.158(a)(5) and 80.171(a)(5)) The purpose of this identification 
requirement is to alert the parties receiving the gasoline about the 
oxygenates and PRCs in the received product. This information would be 
useful to the recipient because, under the detergent certification 
program, parties may choose to additize gasoline with a detergent whose 
certification is restricted for use only with a specific oxygenate or 
with no oxygenate, or, in the case of fuel-specific certified 
detergents, for use in gasoline without PRCs. Thus, parties choosing to 
use such restricted-use detergents must know the oxygenate or PRC 
(``oxygenate'') content of the gasoline they intend to additize with 
these detergents. The PTD oxygenate identification requirement was 
intended to provide such information for the transferred gasoline.
    In creating this identification requirement, the Agency was not 
aware that many parties did not know the specific oxygenate content of 
the gasoline they were transferring. EPA has since learned that, under 
typical industry practice prior to this requirement, parties commingled 
gasolines without knowledge of what (if any) specific ethers (a type of 
oxygenate) were present. Under the interim detergent rule's PTD 
requirements, no information about the oxygenate content of base 
gasoline was required. Parties were thus typically unaware of the 
specific ether content (in type and concentration) of commingled 
gasoline they received or possessed themselves. To comply with this new 
oxygenate identification requirement and to become knowledgeable about 
the ether status of their gasoline, parties would have to ascertain the 
ether content of received gasoline, stop commingling gasolines with 
different ether contents, or start testing all batches to determine 
such content. In any of these scenarios, gasoline distribution as 
presently practiced would be significantly disrupted.
    It was never EPA's intention to disrupt gasoline distribution 
practices through the imposition of this PTD oxygenate identification 
requirement. Consequently, on August 28, l996, the Agency issued its 
first enforcement discretion letter temporarily suspending enforcement 
of this PTD requirement.

B. Rule Amendment

    EPA does not believe that the benefits from the PTD requirement of 
providing oxygenate information to those parties who might choose to 
use oxygenate-restricted certified detergents warrants the resulting 
disruption to the gasoline distribution system. Therefore, the Agency 
is now amending the detergent program through this direct final rule to 
eliminate the requirement that PTDs for gasoline must identify the 
oxygenates found in the transferred product. At the same time, an NPRM 
is being published to address this issue with full notice and comment. 
Under the proposal, a new requirement would take the place of the 
deleted PTD identification requirement. The proposed requirement would 
mandate that those detergent-blending parties wishing to use oxygenate-
restricted detergents must maintain documentation fully identifying the 
oxygenate content of the fuel into which the detergent was blended, as 
evidence that the fuel complied with the detergent's oxygenate use 
restriction. This direct final rule, however, is merely deleting the 
PTD oxygenate identification requirement. The Agency believes this is 
appropriate because no oxygenate-restricted detergents have been 
certified to date, so there is presently no potential for 
misadditization based on inappropriate use of oxygenate-restricted 
detergents through the deletion of this PTD requirement. Further, the 
deletion of this requirement until the issue is resolved through the 
NPRM process does not in any way affect the detergent rule's 
requirement of proper additization of gasoline in full compliance with 
all certification restrictions of the detergent being used.

IV. Environmental Impact

    This rule is expected to have no negative environmental impact. 
Controls on proper gasoline additization are not affected by this rule. 
Further, no oxygenate-restricted detergents have been certified yet, so 
the absence of the specific PTD oxygenate information on transferred 
gasoline will have no impact on the proper additization of such 
gasoline.

V. Economic Impact and Impact on Small Entities

    EPA has determined that this final rule will not have a significant 
impact on a substantial number of small entities because it removes a 
regulatory requirement with which parties would otherwise have to 
comply. This rule is not expected to result in any additional 
compliance cost to regulated parties and may be expected to reduce 
compliance cost. Therefore, a regulatory flexibility analysis has not 
been prepared.

VI. Public Participation and Effective Date

    The Agency is publishing this action as a direct final rule because 
it views it as non-controversial and anticipates no adverse comments. 
However, in a separate Notice of Proposed Rulemaking (NPRM) in today's 
Federal Register, the Agency is proposing, among other things, to 
eliminate the PTD requirement should adverse or critical comments be 
filed. Thus, today's direct final action will be effective January 5, 
1998 unless the Agency receives notice by December 8, 1997 that adverse 
or critical comments will be submitted or that a party requests the 
opportunity to submit such oral comments pursuant to section 307(d)(5) 
of the Clean Air Act, as amended.
    If the Agency receives such comments, EPA will withdraw this action 
before the effective date by publishing a subsequent document. All 
public comments received will then be addressed in a subsequent final 
rule based on the NPRM published elsewhere in today's Federal Register. 
The Agency will not institute a second comment period on this action. 
Any parties interested in commenting on this action should do so at 
this time. If no such comments are received, the public is advised that 
this action will be effective January 5, 1998.

[[Page 60001]]

VII. Executive Order 12866

    Under Executive Order 12866,4 the Agency must determine 
whether a regulation is ``significant'' and therefore subject to OMB 
review and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
---------------------------------------------------------------------------

    \4\ 58 FR 51736 (October 4, 1993).
---------------------------------------------------------------------------

    (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 of 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 
this Executive Order. 5
---------------------------------------------------------------------------

    \5\ Id. at section 3(f)(1)-(4).
---------------------------------------------------------------------------

    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

VIII. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``UMRA''), Public Law 104-4, EPA must prepare a budgetary impact 
statement to accompany any general notice of proposed rulemaking or 
final rule that includes a federal mandate which may result in 
estimated costs to State, local, or tribal governments in the 
aggregate, or to the private sector, of $100 million or more. Under 
Section 205, for any rule subject to Section 202 EPA generally must 
select the least costly, most cost-effective, or least burdensome 
alternative that achieves the objectives of the rule and is consistent 
with statutory requirements. Under Section 203, before establishing any 
regulatory requirements that may significantly or uniquely affect small 
governments, EPA must take steps to inform and advise small governments 
of the requirements and enable them to provide input.
    EPA has determined that the final rule promulgated today does not 
include a federal mandate as defined in UMRA. The rule does not include 
a federal mandate that may result in estimated annual costs to State, 
local or tribal governments in the aggregate, or to the private sector, 
of $100 million or more, and it does not establish regulatory 
requirements that may significantly or uniquely affect small 
governments.

IX. Paperwork Reduction Act

    The action in today's notice does not impose any new information 
collection burden. Implementation of this action would eliminate the 
existing requirement that product transfer documents (PTDs) for 
gasoline must identify the oxygenates present. No new information 
collection requirements would result from the implementation of the 
regulatory amendment which is the subject of this action. To the 
contrary, its implementation would eliminate a compliance burden from 
the majority of regulated parties.
    The Office of Management and Budget (OMB) has previously approved 
the information collection requirements of the Regulation of Deposit 
Control Additives contained in 40 CFR Part 80 under the provisions of 
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned 
OMB control number 2060-0275 (EPA ICR Numbers 1655-01, 1655-02, and 
1655-03).
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    Copies of the ICR documents may be obtained from Sandy Farmer, 
Information Policy Branch; EPA; 401 M St., SW. (mail code 2136); 
Washington, DC 20460 or by calling (202) 260-2740. Include the ICR and/
or OMB number in any correspondence.

X. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added 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 not a ``major rule'' as defined by 5 
U.S.C. 804(2).

XI. Statutory Authority

    The statutory authority for the proposed action in this rule is 
granted to EPA by sections 114, 211(a), (b), (c), and (l), and 301 of 
the Clean Air Act as amended: 42 U.S.C. 7414, 7545(a), (b), (c) and 
(l), and 7601.

List of Subjects in 40 CFR Part 80

    Environmental protection, Fuel additives, Gasoline detergent 
additives, Gasoline, Motor vehicle pollution, Penalties, Reporting and 
recordkeeping requirements.

    Dated: October 30, 1997.
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: Sections 114, 211 and 301(a) of the Clean Air Act as 
amended (42 U.S.C. 7414, 7545, and 7601(a)).


Sec. 80.158  [Amended]

    2. Section 80.158(a) is amended as follows:
    a. Paragraph (a)(5) is removed.
    b. Paragraphs (a)(6) through (a)(10) are redesignated as paragraphs 
(a)(5) through (a)(9).


Sec. 80.171  [Amended]

    3. Section 80.171(a) is amended as follows:
    a. Paragraph (a)(5) is removed.
    b. Paragraphs (a)(6) through (12) are redesignated as paragraphs 
(a)(5) through (a)(11).

[FR Doc. 97-29391 Filed 11-5-97; 8:45 am]
BILLING CODE 6560-50-P