[Federal Register Volume 68, Number 191 (Thursday, October 2, 2003)]
[Rules and Regulations]
[Pages 56805-56809]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24908]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[FRL-7566-4]


Regulation of Fuel and Fuel Additives: Gasoline and Diesel Fuel 
Test Method Update

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to take 
action to make certain fuel testing requirements more consistent and 
up-to-date by having refiners and laboratories use the most current 
version of an American Society of Testing and Materials (ASTM) 
analytical test method.
    Specifically, we are proposing to update an ASTM designated 
analytical test method, ASTM D 1319 to the most recent 2002a version 
which if adopted will supersede earlier versions of this method in 
EPA's motor vehicle fuel

[[Page 56806]]

regulations. This method is designated in EPA regulations for measuring 
chemical compositions in reformulated gasoline (RFG), conventional 
gasoline (CG), and diesel fuel, specifically aromatics and olefins in 
CG and RFG and aromatics in diesel fuel. These updates allow for more 
consistent use of the same methodology across EPA motor vehicle fuel 
regulations and incoporate improvements in the test method procedures 
that will ensure better operation.

DATES: The Agency must receive comments or a request for public hearing 
by November 3, 2003.

ADDRESSES: If you wish to submit comments or request a public hearing, 
you should send any written materials to the docket address listed and 
to Joe Sopata, Chemist, Transportation & Regional Programs Division, 
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW. 
(6406J), Washington, DC 20460; or by e-mail to [email protected]. All 
comments and materials relevant to today's action are contained in 
Public Docket No. A-2002-15 and docket A-2001-21 located at the 
following address: EPA Docket Center (EPA/DC), Public Reading Room, 
Room B102, EPA West Building, 1301 Constitution Avenue, NW., 
Washington, DC. Dockets may be inspected from 8:30 a.m. to 4:30 p.m., 
Monday through Friday, except on government holidays. You may reach the 
Air Docket by telephone at (202) 566-1742 and by facsimile at (202) 
566-1741. You may be charged a reasonable fee for photocopying docket 
materials, as provided in 40 CFR part 2.

FOR FURTHER INFORMATION CONTACT: If you would like further information 
about this rule or to request a hearing, contact Joe Sopata, Chemist, 
Transportation & Regional Programs Division, (202) 564-9034.

SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed 
in the following outline.

I. Regulated Entities
II. Rule Changes
    A. Updating ASTM D 1319 Test Method to 2002a Year Version
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health & Safety Risks
    H. Executive Order 13211: Actions that Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
IV. Statutory Provisions and Legal Authority

I. Regulated Entities

    Entities potentially affected by this action include those involved 
with the production, importation, distribution, sale and storage of 
gasoline motor fuel and diesel motor fuel.
    The table below gives some examples of entities that may have to 
comply with the regulations. However, since these are only examples, 
you should carefully examine these and other existing regulations in 40 
CFR part 80. If you have any questions, please call the person listed 
in the FOR FURTHER INFORMATION CONTACT section above.

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                                                                             Examples of potentially regulated
                Category                   NAICSs codes      SIC codes                    parties
----------------------------------------------------------------------------------------------------------------
Industry................................           32411            2911  Petroleum refiners.
Industry................................           54138            8734  Testing Laboratories.
----------------------------------------------------------------------------------------------------------------
\a\ North American Industry Classification System (NAICS).
\b\ Standard Industrial Classification (SIC) system code.

II. Rule Changes

A. Updating ASTM D 1319 Test Method to 2002a Year Version

    Refiners, importers and oxygenate blenders producing gasoline and 
diesel motor vehicle fuel are required to test Reformulated Gasoline 
(RFG), Conventional Gasoline (CG) and diesel fuel for various fuel 
parameters including olefins, and aromatics. ASTM test method D1319 is 
currently a designated test method for measuring olefins \1\ in 
gasoline and aromatics \2\ in diesel fuel and is also allowed as an 
alternative test method for measuring aromatics \3\ in gasoline. 
Because rules were adopted at different points in time, the regulations 
currently cite three different versions of D 1319 (published in three 
different years) for these applications.
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    \1\ 40 CFR 80.46(b).
    \2\ 40 CFR 80.2(z).
    \3\ 40 CFR 80.46(f)(3).
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    On February 26, 2002, the Agency published a final rule entitled 
``Regulation of Fuel and Fuel Additives: Reformulated Gasoline 
Transition.'' \4\ Among other things, this final rule updated certain 
ASTM test methods for RFG and CG, designated in EPA regulations, to 
their most recent ASTM version. Several designated test methods were 
updated to their most recent version including methods covering oxygen 
content, distillation properties, RVP, and aromatics. The designated 
test method for olefins, ASTM D 1319, was updated by EPA only to its 
1998 version and not to the most recent version. This was because the 
1999 version of ASTM D 1319 (the most recent version at that time) had 
mistakenly left out an important reference to use of another ASTM 
method. ASTM D 5599-00, the missing test method, measures oxygenate 
concentration when present in the gasoline sample. Measurement of 
oxygenate content when oxygenates are present is a required procedure 
when determining olefin content. Therefore, since ASTM D 5599-00 is 
EPA's designated method for oxygenate determination, omission of this 
procedure in the 1999 version of ASTM 1319 meant that it would not be 
appropriate for EPA to adopt that version of ASTM 1319. We explained in 
our response to comments that ``unless a determination is made that 
ASTM D 5599-00 can be appropriately included as a method for measuring 
oxygen and oxygen content with ASTM D 1319-99, EPA will retain the 1998 
version of D 1319 as the designated test method for olefins.'' \5\
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    \4\ February 26, 2002, (67 FR 8729).
    \5\ See Air Docket A-2001-21, Document V-C-01.
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    Recently, David Bradley, the ASTM Director of Committee D02 for 
Petroleum Products and Lubricants, said in a letter to EPA that ASTM 
has updated test method D1319 to a 2002 year version.\6\ Mr. Bradley 
also pointed out that this most recent version of ASTM D 1319 now 
includes the reference to ASTM D 5599 thus resolving the problem 
associated with omission of EPA's designated test method for oxygen and 
oxygen content. The American Petroleum Institute (API)

[[Page 56807]]

also submitted comments to EPA in support of this test method update of 
ASTM D 1319 to the 2002 year version.\7\ Thus, both ASTM and API 
support revising our motor vehicle fuels regulations to allow the use 
of D1319-02a for testing of olefins.
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    \6\ See Air Docket A-2002-15, Document II-D-
01.
    \7\ See Air Docket A-2002-15, Document II-D-
02.
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    In addition to updating our regulations to allow for the use of 
ASTM D 1319-02a for determining olefins in gasoline (discussed above), 
we are also today proposing to allow use of the newest version of D1319 
for determination of aromatics content in RFG and CG (as an alternative 
method) and in determining aromatics content in diesel motor fuel. 
Previous versions of ASTM D1319 were allowed for determining aromatic 
content under previous rulemakings.
    Table 1 lists the designated analytical test methods and 
alternative analytical test methods which are being updated for 
parameters measured under RFG, CG, and diesel fuels program in today's 
action. We have reviewed the 2002a version of ASTM test method D 1319 
and we are in agreement with its revisions. We believe that the 
revisions in ASTM D 1319-02a are not significant changes that would 
cause a user of an older version of the same method to incur 
significant costs. All of the revisions were deemed necessary by ASTM 
so that improvements in the test method's procedures would ensure 
better operation for the user of the test method. By updating ASTM D 
1319 to the 2002a version for all three of these applications, the 
required analytical methodologies will be more consistent, making it 
easier for manufacturers of gasoline and diesel fuel to utilize the 
ASTM technique for all fuels and properties being tested.

Table 1.--Designated & Alternative Analytical Test Methods Under RFG, CG
                         & Diesel Fuel Programs
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             Fuel parameter                   Analytical test method
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Olefins................................  ASTM D 1319-02a, entitled,
                                          ``Standard Test Method for
                                          Hydrocarbon Types in Liquid
                                          Petroleum Products by
                                          Fluorescent Indicator
                                          Absorption.''
Aromatics (gasoline and diesel)........  ASTM D 1319-02a, entitled,
                                          ``Standard Test Method for
                                          Hydrocarbon Types in Liquid
                                          Petroleum Products by
                                          Fluorescent Indicator
                                          Absorption'', for diesel fuel,
                                          this method is the designated
                                          test method, for gasoline,
                                          this method is an alternative
                                          test method and if used as an
                                          alternative method, its
                                          results, must be correlated to
                                          ASTM D 5769-98.
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    In the ``Final Rules'' section of today's Federal Register, we are 
publishing a direct final rule that matches the substance of this 
proposed rule. If the Agency receives adverse comment or a request for 
public hearing by November 3, 2003, we will withdraw the direct final 
rule by publishing a timely withdrawal notice in the Federal Register. 
If the Agency receives no adverse comment or a request for public 
hearing by November 3, 2003, these test method changes will be 
effective sixty (60) days after publication of the final rule in the 
Federal Register. We are confident that sixty(60) days is sufficient 
lead time for industry to become familiar and implement this most 
recent ASTM test method for the applications mentioned above.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.''
    Pursuant to the terms of Executive Order 12866, we have determined 
that this proposed rule is not a significant regulatory action.

B. Paperwork Reduction Act

    This action does 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. 1591.14). The OMB 
has approved the information collection requirements contained in the 
final Tax Exempt (Dyed) Highway Diesel Fuel rulemaking (See 66 FR 
64817, December 14, 2001) and has assigned OMB control number 2060-0308 
(EPA ICR No. 1718.03).
    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. 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.

[[Page 56808]]

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (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 proposed 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, we believe that this action will not have a significant 
economic impact on a substantial number of small entities. We have 
determined that no small entities will experience an impact from this 
proposal. ASTM test method D 1319 is currently a designated test method 
for measuring olefins in gasoline and aromatics in diesel fuel and is 
also allowed as an alternative test method for measuring aromatics in 
gasoline (see citations above in Section II.A). Because rules were 
adopted at different points in time, the regulations currently cite 
three different versions of ASTM D 1319 (published in three different 
years) for these applications. Currently, if a small entity produces 
both gasoline and diesel fuel, and it relies on ASTM D 1319 for 
determining compliance with the fuel parameters mentioned above, it 
must maintain three different versions of ASTM D 1319. These proposed 
updates allow for more consistent use of the same methodology across 
EPA motor vehicle fuel regulations, thus increasing flexibility for 
small entities who manufacture gasoline or diesel fuel. Thus this 
proposed rule is expected to reduce operating costs for all parties, 
including small entities.
    Although this proposed rule will not have a significant impact on a 
substantial number of small entities, EPA has nonetheless tried to 
reduce the impact of this rule on small entities. If the Agency 
receives no adverse comment or request for public hearing on this 
proposed rule, these test method changes will be effective sixty (60) 
days after publication of this proposed rules corresponding direct 
final rule in the Federal Register. We are confident that sixty (60) 
days is sufficient lead time for small entities to become familiar and 
implement this ASTM test method for its applications. We continue to be 
interested in the potential impacts of the rule on small entities and 
welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's 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 rule would impose no 
enforceable duty on any State, local or tribal governments or the 
private sector. This rule applies to gasoline refiners, blenders and 
importers that supply gasoline or diesel fuel.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This proposed rule updates an 
ASTM test method to its most recent version. Thus, Executive Order 
13132 does not apply to this proposed rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and

[[Page 56809]]

Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes, as specified in 
Executive Order 13175. This proposed rule applies to gasoline refiners, 
blenders and importers that supply gasoline or diesel fuel. Today's 
action updates an ASTM test method to its most recent version, and does 
not impose any enforceable duties on communities of Indian tribal 
governments. Thus, Executive Order 13175 does not apply to this 
proposed rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

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

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed rule is not an economically ``significant energy 
action'' as defined in Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355 (May 22, 2001)) because it does not have a 
significant adverse effect on the supply, distribution, or use of 
energy. EPA is allowing additional flexibility and streamlining the 
regulations by updating an ASTM test method to its most current version 
for three applications under its motor vehicle programs.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This rule will update an ASTM test method which is a designated 
analytical test method for two applications and an alternative test 
method for one application to its most recent ASTM version. Today's 
action does not establish new technical standards or analytical test 
methods, although it does update an ASTM test method to its most 
current version. To the extent that this action would allow the use of 
standards developed by voluntary consensus bodies (such as ASTM) this 
action would further the objectives of the NTTAA.

IV. Statutory Provisions and Legal Authority

    Statutory authority for today's proposed rule comes from sections 
211(c), 211(i) and 211(k) of the CAA (42 U.S.C. 7545(c) and (k)). 
Sections 211(c) and 211(i) allow EPA to regulate fuels that contribute 
to air pollution which endangers public health or welfare, or which 
impairs emission control equipment. Section 211(k) prescribes 
requirements for RFG and conventional gasoline and requires EPA to 
promulgate regulations establishing these requirements. Additional 
support for the fuels controls in today's rule comes from sections 
114(a) and 301(a) of the CAA.

List of Subjects in 40 CFR Part 80

    Environmental protection, Air pollution control, Fuel additives, 
Gasoline, Diesel, Imports, Incorporation by reference, Motor vehicle 
pollution, Reporting and recordkeeping requirements.

    Dated: September 24, 2003.
Marianne Lamont Horinko,
Administrator.
[FR Doc. 03-24908 Filed 10-1-03; 8:45 am]
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