[Federal Register Volume 65, Number 171 (Friday, September 1, 2000)]
[Proposed Rules]
[Pages 53215-53218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-22381]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[FRL-6855-7]


Use of Alternative Analytical Test Methods in the Reformulated 
Gasoline Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: This proposed rule would extend the time period during which 
certain alternative analytical test methods may be used in the Federal 
reformulated gasoline (RFG) program to September 1, 2004. The time 
period for the use of these alternative methods originally expired on 
January 1, 1997 and was previously extended to September 1, 1998 and 
September 1, 2000. This proposed rule would also update each of these 
alternative methods to achieve more accurate results and to make them 
easier to perform. The purpose of today's proposed extension is to 
grant temporary flexibility until we issue a performance-based 
analytical test methods rule.

DATES: Comments must be submitted by October 2, 2000.

ADDRESSES: If you wish to submit comments, you should send them to the 
docket address listed and to Anne Pastorkovich, Attorney/Advisor, 
Transportation & Regional Programs Division, U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW. (6406J), Washington, 
DC 20460. Materials relevant to this proposed (and direct final) rule 
have been placed in docket A-2000-26 located at U.S. Environmental 
Protection Agency, Air Docket Section, Room M-1500, 401 M Street, SW., 
Washington, DC 20460. The docket is open for public inspection from 8 
a.m. until 5:30 p.m., Monday through Friday, except on Federal 
holidays. You may be charged a reasonable fee for photocopying 
services.

FOR FURTHER INFORMATION CONTACT: If you would like further information 
about this proposed rule or to request a hearing, contact Anne 
Pastorkovich, Attorney/Advisor, Transportation & Regional Programs 
Division, (202) 564-8987.

SUPPLEMENTARY INFORMATION:

I. Regulated Entities

    Entities potentially regulated by the action are those that use 
analytical test methods to comply with the RFG program. Regulated 
categories and entities include:

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                Category                             Examples
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Industry...............................  Oil refiners, gasoline
                                          importers, oxygenate blenders
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists all entities that we are now aware could 
potentially be regulated by this action. Other types of entities not 
listed in this table could also be regulated by this action. To 
determine whether your business is regulated by this action, you should 
carefully examine the applicability criteria in part 80 of Title 40 of 
the Code of Federal Regulations. If you have any questions regarding 
the applicability of this action to a particular entity, consult the 
person listed in the preceding section of this document.

II. RFG Standards & Test Methods Utilized in 40 CFR 80.46

    Section 211(k) of the Clean Air Act directs EPA to establish 
standards requiring the greatest reduction in emissions of ozone 
forming volatile organic compounds (VOCs) and toxic air emissions 
achievable through the reformulation of conventional gasoline, 
considering cost, other health and environmental factors and energy 
requirements. The Act requires that RFG meet certain content standards 
for oxygen, benzene, and heavy metals. RFG must be used in certain 
ozone nonattainment areas, called ``covered areas.'' The CAA also 
requires EPA to establish anti-dumping standards applicable to 
conventional gasoline used in the rest of the country. We issued final 
RFG and anti-dumping regulations on December 15, 1993 \1\ and these 
regulations became effective in January 1995.
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    \1\ ``Regulation of Fuels and Fuel Additives: Standards for 
Reformulated and Conventional Gasoline--Final Rule,'' 59 FR 7812 
(February 16, 1994). See 40 CFR part 80 subparts D, E, and F.
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    Under the RFG and anti-dumping program, refiners, importers, and 
oxygenate blenders are required to test RFG and conventional gasoline 
for certain parameters, including sulfur levels, aromatic content, 
benzene content, and oxygen content. Test methods for determining these 
parameters are specified in the regulation. For oxygen and oxygenate 
content, 40 CFR 80.46(g)(1) through (8), (9)(ii), and (h) specify the 
use of the gas chromatographic procedure using an oxygenate flame 
ionization detector, or the ``GC-OFID method.'' For aromatics content, 
40 CFR 80.46(f)(1) and (2) specifies the gas chromatography method.
    Based upon comments received from the regulated industry during the 
RFG and anti-dumping rulemaking process, we concluded that it would be 
appropriate to temporarily allow the use of test methods not specified 
in the regulation for measuring oxygen and aromatics content. These 
comments tended to indicate that the designated test methods for oxygen 
and aromatics content were costly and relatively new, so we agreed to 
permit industry to use two specified alternative analytical test 
methods until January 1, 1997. The alternative analytical test method 
for oxygen is ASTM D 4815-93, entitled ``Standard Test Method for 
Determination of MTBE, ETBE, TAME, DIPE, tertiary-Amyl Alcohol and C1 
to C4 Alcohols in Gasoline by Gas Chromatography,'' and the alternative 
analytical test method for aromatics is ASTM D 1319-93, entitled 
``Standard Test Method for Hydrocarbon Types in Liquid Petroleum 
Products by Flourescent Indicator Adsorption.'' These alternative 
analytical test methods are specified in Sec. 80.46(g)(9)(i) and 
(f)(3), respectively.
    We later extended the deadline for use of the two alternative 
analytical test methods to September 1, 1998 \2\ and September 1, 2000. 
\3\ In granting these further extensions, we determined that permitting 
continued use of the

[[Page 53216]]

specified alternative test methods would grant refiners, importers, and 
blenders significant flexibility and would not result in any 
environmental detriment. We continue to believe that the flexibility 
associated with alternative test methods will not result in any 
environmental detriment and that it is appropriate to allow these 
methods to be used. In the earlier notices, we discussed our intent to 
engage in a notice and comment rulemaking to establish performance-
based analytical test methods. A performance-based approach would apply 
to the measurement of all RFG parameters listed at Sec. 80.46 and would 
not be limited to oxygen and aromatics content. A performance-based 
approach would allow regulated parties additional flexibility in 
choosing analytical test methods since, rather than specifying the 
exact test method and equipment to be used, a performance-based 
approach would define the degree of precision and accuracy methods must 
meet and sets forth procedures to qualify methods for use.
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    \2\ ``Use of Alternative Test Methods in the Reformulated 
Gasoline Program,'' 61 FR 58304 (November 13, 1996).
    \3\ ``Use of Alternative Test Methods in the Reformulated 
Gasoline Program and Revision of the Specification for the Mixing 
Chamber Associated with Animal Toxicity Testing of Fuels and Fuel 
Additives,'' 63 FR 63789 (November 17, 1998).
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    By today's action, we are proposing to extend the time period 
during which the alternative test methods may be used to September 1, 
2004 or until such time as a performance-based test methods approach 
rulemaking can be completed, whichever is sooner. Today's proposed rule 
only applies to the test methods for aromatics and oxygen content. As 
part of this proposed rule, we would update the two alternative test 
methods that may be used to measure oxygen and aromatics content to 
their current versions. The current version of the alternative 
analytical test method for aromatics is ASTM D 1319-99, entitled, 
``Standard Test Method for Hydrocarbon Types in Liquid Petroleum 
Products by Flourescent Indicator Adsorption.'' The current version of 
the alternative analytical test method for oxygen and oxygenate content 
is ASTM D 4815-99, entitled, ``Standard Test Method for Determination 
of MTBE, ETBE, TAME, DIPE, tertiary-Amyl Alcohol and C1 to C4 Alcohol 
in Gasoline by Gas Chromatography.'' These two alternative test methods 
have been updated from ASTM D 1319-93 and ASTM D 4815-93, respectively. 
The updated methods incorporate minor technical revisions to help the 
person using the test method achieve more accurate results and do not 
require different or additional testing apparatus. Therefore, we 
believe it is appropriate to designate the current versions of these 
ASTM methods as the allowable alternative test methods. Doing so would 
not affect our earlier determination that there would be no 
environmental detriment, since these changes are minor This decision is 
not expected to be controversial, since the full flexibility associated 
with the use of alternative analytical test methods will be maintained.
    Today's action only proposes to continue the existing flexibility 
in the use of these two alternative test methods. Consideration of test 
methods other than the specified alternative test methods for oxygen 
and aromatics is beyond the limited scope of this proposed rule. The 
performance-based test methods approach will establish criteria for 
qualifying other test methods for use. We do invite comment on the 
usefulness of other specific alternative test methods, not covered by 
this proposal, and on the appropriateness of considering such methods 
in future rulemaking actions.
    We believe that this proposed rule, and our intent to establish a 
performance-based test method approach, may help advance the purposes 
of the ``National Technology Transfer and Advancement Act of 1995,'' 
section 12(d) of Public Law 104-113 and Office of Management and Budget 
(OMB) Circular A-119. Both of these documents are designed to encourage 
the adoption of standards developed by ``voluntary consensus bodies'' 
and to reduce reliance on government-unique standards where such 
consensus standards would suffice. This proposed rule would provide an 
extension of the deadline for using certain alternative test methods 
until September 1, 2004. We reasonably expect to complete rulemaking on 
the performance-based test methods approach prior to September 1, 2004. 
The performance-based test methods approach will address the use of 
these and other test methods.

III. Administrative Requirements

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a Serious inconsistency or otherwise interfere with an 
action taken or planned by another Agency;
    (3) Materially alter the budgetary impact of entitlement, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    The Agency has determined that this proposed regulation would 
result in none of the economic effects set forth in Section 1 of the 
Order because it generally relaxes the requirements of the RFG program 
and provides regulated parties with more flexibility with respect to 
compliance with the RFG requirements. Pursuant to the terms of 
Executive Order 12866, OMB has waived review of this action.

B. Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    If EPA complies by consulting, Executive Order 13132 requires EPA 
to provide to the Office of Management and Budget (OMB), in a 
separately identified section of the preamble to the rule, a federalism 
summary impact statement (FSIS). The FSIS must include a description of 
the extent of EPA's prior consultation with State and local

[[Page 53217]]

officials, a summary of the nature of their concerns and the agency's 
position supporting the need to issue the regulation, and a statement 
of the extent to which the concerns of State and local officials have 
been met. Also, when EPA transmits a draft final rule with federalism 
implications to OMB for review pursuant to Executive Order 12866, EPA 
must include a certification from the agency's Federalism Official 
stating that EPA has met the requirements of Executive Order 13132 in a 
meaningful and timely manner.
    This proposed rule would not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
This proposed rule would provide regulatory relief for refiners who 
choose to use alternative test methods and does not impose any 
substantial direct effects on the states. Thus, the requirements of 
section 6 of the Executive Order do not apply to this rule.

C. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.''
    Today's proposed rule would not significantly or uniquely affect 
the communities of Indian tribal governments. Today's proposed rule 
would not create a mandate for any tribal governments. This proposed 
rule would apply to gasoline refiners, importers, and blenders. Today's 
action would make some changes that would generally provide flexibility 
within the Federal RFG requirements, and would not impose any 
enforceable duties on communities of Indian tribal governments. 
Accordingly, the requirements of section 3(b) of Executive Order 13084 
do not apply to this proposed rule.

D. Regulatory Flexibility Act (RFA), as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business that has not 
more than 1,500 employees (13 CFR 121.201); (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district or special district with a population of less than 50,000; and 
(3) a small organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. Sections 603 
and 604. Thus, an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule. 
Today's proposed rule would provide regulatory relief by extending the 
deadline for use of alternative test methods for RFG. We have therefore 
concluded that today's proposed rule would relieve regulatory burden 
for all small entities. We continue to be interested in the potential 
impacts of the proposed rule on small entities and welcome comments on 
issues related to such impacts.

E. Paperwork Reduction Act

    This proposed rule would not add any new requirements involving the 
collection of information as defined by the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq. The Office of Management and Budget (OMB) has 
approved the information collection requirements contained in the final 
RFG/anti-dumping rulemaking (See 59 FR 7716, February 16, 1994) and has 
assigned OMB control number 2060-0277 (EPA ICR No. 1591.07).
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information. An Agency may not 
conduct or sponsor, and a person is not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number. The OMB control numbers for EPA's regulations are 
listed in 40 CFR Part 9 and 48 CFR Chapter 15.

F. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and

[[Page 53218]]

adopt the least costly, most cost-effective or least burdensome 
alternative that achieves the objectives of the rule. The provisions of 
section 205 do not apply when they are inconsistent with applicable 
law. Moreover, section 205 allows EPA to adopt an alternative other 
than the least costly, most cost-effective or least burdensome 
alternative if the Administrator publishes with the final rule an 
explanation why that alternative was not adopted. Before EPA 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including tribal governments, it 
must have developed under section 203 of the UMRA a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    Today's proposed rule contains no Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local or 
tribal governments or the private sector. The proposed rule would 
impose no enforceable duty on any State, local or tribal governments or 
the private sector. This proposed rule would apply to gasoline 
refiners, blenders and importers. Today's proposed action suggests 
changes that would provide regulated parties with more flexibility with 
respect to compliance with the RFG requirements.

G. Executive Order 13045: Children's Health Protection

    Executive Order 13045: Protection of Children from Environmental 
health Risks and Safety Risks (62 FR 19885, April 23, 1997) applies to 
any rule that: (1) is determined to be economically significant as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This proposed rule is not 
subject to Executive Order 13045, entitled ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 
23, 1997), because it does not involve decisions on environmental 
health risks or safety risks that may disproportionately affect 
children. This proposed rule would merely extend the deadline for use 
of alternative test methods under the RFG program and would not have an 
adverse effect on air quality.

H. National Technology Transfer and Advancement Act of 1995 (NTTAA)

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This proposed rule would provide an extension of deadline for use 
of certain analytical test methods for the RFG program until such time 
as a notice-and-comment rulemaking to establish performance-based 
analytical test methods is completed. Today's proposed action does not 
establish new technical standards or analytical test methods, although 
it does update existing alternative ASTM test methods to their current 
versions. To the extent that this proposed action would allow the use 
of standards developed by voluntary consensus bodies (such as ASTM) 
this action would further the objectives of the NTTAA. The Agency plans 
to address the objectives of the NTTAA more broadly in the upcoming 
rulemaking to establish performance-based analytical test methods.

I. Statutory Authority

    Sections 114, 211, and 301(a) the Clean Air Act as amended (42 
U.S.C. 7414, 7545, and 7601(a)).

List of Subjects in 40 CFR Part 80

    Environmental protection, Air pollution control, Incorporation by 
reference, Reformulated gasoline.

    Dated: August 15, 2000.
Carol M. Browner,
Administrator.
[FR Doc. 00-22381 Filed 8-31-00; 8:45 am]
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