[Federal Register Volume 68, Number 194 (Tuesday, October 7, 2003)]
[Proposed Rules]
[Pages 57851-57855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-25134]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[FRL-7566-7]


Use of Alternative Analytical Test Methods in the Reformulated 
Gasoline, Anti-Dumping, and Tier 2 Gasoline Sulfur Control Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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

SUMMARY: EPA proposes to allow the use of certain alternative 
analytical test methods for measuring sulfur in gasoline and butane 
under the Federal reformulated gasoline (RFG) and anti-dumping program 
and the Federal gasoline sulfur control program. We also propose to 
allow refineries to use any reasonable test method designed for 
measuring the sulfur content of butane until January 1, 2004. After 
that date, either the designated analytical test method or an allowed 
alternative analytical test method would have to be used. The purpose 
of today's proposal is to grant temporary flexibility until we issue a 
comprehensive performance-based analytical test methods rule and to 
fulfill the terms of a recent settlement agreement related to gasoline 
sulfur test methods.

DATES: Comments or a request for a public hearing must be received by 
November 6, 2003.

ADDRESSES: For more information or to request a public hearing, please 
contact Anne Pastorkovich, Attorney/Advisor, Transportation & Regional 
Programs Division, U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW. (6406J), Washington, DC 20460, or by e-mail to 
[email protected]. No confidential business information 
(CBI) should be submitted by e-mail.
    EPA has established a public docket for this proposed rule under 
Docket ID No. OAR-2003-0050, which is available for public viewing at 
the Air and Radiation Docket and Information Center (EPA/DC) in the EPA 
Docket Center, EPA West, Room B102, 1301 Constitution Avenue, NW., 
Washington, DC. The EPA Docket Center Public Reading Room is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Reading Room is (202) 566-1744, 
and the telephone number for the Air and Radiation Docket and 
Information Center is (202) 566-1742. An electronic version of the 
public docket is available through EPA Dockets (EDOCKET) at http://www.epa.gov/edocket. Use EDOCKET to submit or view public comments, 
access the index listings of the contents of the public docket, and to 
access those documents in the public docket that are available 
electronically. Once in the system, select ``search,'' then key in the 
docket ID number identified above.
    Any comments related to the proposed rule should be submitted to 
EPA within 30 days of this notice, and according to the following 
detailed instructions: Submit your comments to EPA online using EDOCKET 
(our preferred method) or by mail to EPA Docket Center, Environmental 
Protection Agency (6102T), 1200 Pennsylvania Avenue, NW., Washington, 
DC 20460.
    EPA's policy is the public comments, whether submitted 
electronically or in paper format, will be made available for public 
viewing in EDOCKET as EPA receives them and without change, unless the 
comment contains copyrighted material, CBI, or other information whose 
public disclosure is otherwise restricted by statue, is not included in 
the official public docket, and will not be available for public 
viewing in EDOCKET. For further information about the electronic 
docket, see EPA's Federal Register notice describing the electronic 
docket at 67 FR 38102 (May 31, 2002), or go to http://www.epa.gov/edocket.

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 or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Regulated Entities

    Entities potentially regulated by the action are those that use 
analytical test methods to comply with the RFG, anti-dumping, and 
gasoline sulfur control program. Regulated categories and entities 
include:

----------------------------------------------------------------------------------------------------------------
                                                         SIC codes
               Category                 NAICSs codes a       b        Examples of potentially regulated parties
----------------------------------------------------------------------------------------------------------------
Industry..............................          324110        2911  Petroleum refiners.

[[Page 57852]]

 
Industry..............................          422710        5171  Gasoline Marketers and Distributors.
                                                422720        5172
----------------------------------------------------------------------------------------------------------------
\a\ North American Industry Classification System (NAICS).
\b\ Standard Industrial Classification (SIC) system code.

    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. Background and Summary of Today's Proposed Rule

    Section 211(k) of the Clean Air Act (CAA) 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. The 
Administrator signed the final RFG and anti-dumping regulations on 
December 15, 1993,\1\ and these regulations became effective in January 
1995.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    In 2000, EPA issued regulations establishing lower sulfur content 
requirements for all gasoline \2\ and establishing stricter tailpipe 
emissions standards for all passenger vehicles, including sport utility 
vehicles (SUVs), minivans, vans and pick-up trucks. The gasoline sulfur 
control program begins phasing-in in 2004, and, in general, refiners 
must meet a refinery average sulfur standard of 30 ppm beginning in 
2005 and a per gallon cap standard of 80 ppm beginning in 2006 (with 
the exception of challenged refiners, and gasoline sold in certain 
western states subject to geographic phase-in).
---------------------------------------------------------------------------

    \2\ ``Control of Air Pollution From New Motor Vehicles: Tier 2 
Motor Vehicles Emissions Standards and Gasoline Sulfur Control 
Requirements--Final Rule,'' 65 FR 6698 (February 10, 2000). See also 
40 CFR part 80 subpart H for regulations applicable to gasoline 
sulfur.
---------------------------------------------------------------------------

    Under the RFG, anti-dumping and gasoline sulfur 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 the 
sulfur content of gasoline, 40 CFR 80.46(a)(1) specifies American 
Society for Testing and Materials (ASTM) standard method D-2622-98, 
entitled, ``Standard Test Method for Sulfur in Petroleum Products by 
Wavelength Dispersive X-Ray Fluorescence Spectrometry'' as the 
designated test method. In addition, the gasoline sulfur rulemaking 
required a test method for determining the sulfur content of butane 
blended into gasoline--ASTM standard method D 3246-96, entitled 
``Standard Test Method for Sulfur in Petroleum Gas by Oxidative 
Microcoulometry.''
    In the gasoline sulfur control rulemaking, we specifically 
requested comments on the designated test method. We also requested 
comments on other ASTM methods. After considering comments received 
from the regulated industry during the gasoline sulfur rulemaking 
process, including many comments supportive of ASTM D 2622-98 as the 
designated method, we decided to require the use of ASTM D 2622-98 for 
measuring sulfur content. We did not name any alternative analytical 
test methods because we anticipated that a comprehensive performance-
based analytical test method approach rule would be issued in the near 
future. A comprehensive performance based test methods approach would 
allow anyone to qualify additional analytical test methods for use in 
demonstrating compliance with program requirements. We now know that a 
comprehensive performance based test methods rulemaking will take more 
time to complete than originally anticipated. We feel that permitting 
specific ASTM test methods to be used as alternative analytical test 
methods now provides a bridge to a more comprehensive performance based 
test methods approach in the future and grants refiners, importers and 
blenders significant flexibility and potential cost savings in meeting 
their testing requirements.
    As discussed in a May 16, 2003, Federal Register notice,\3\ Antek 
Instruments, which manufactures testing equipment, filed a petition 
challenging the final gasoline sulfur control rule. EPA and Antek 
entered into negotiations and reached a proposed settlement agreement. 
The proposed settlement agreement outlined a proposed rule which would 
identify ASTM D 5453-00 e1 as an alternative test method 
refiners and importers could use to comply with the requirement to test 
gasoline for sulfur content, provided the test result is correlated 
with ASTM D 2622-98. In today's action, EPA is proposing to revise its 
regulations to include such a provision. The proposed settlement 
agreement was available for comment until June 16, 2003. No adverse 
comments were received.
---------------------------------------------------------------------------

    \3\ See ``Notice of Proposed Settlement Agreement; Request for 
Public Comment,'' 68 FR 26604 (May 16, 2003).
---------------------------------------------------------------------------

    For the reasons discussed above, we are proposing to revise 40 CFR 
80.46(a) to allow the use of ASTM D 5453-00 e1, entitled 
``Standard Test Method for Determination of Total Sulfur in Light 
Hydrocarbons, Motor Fuels and Oils by Ultraviolet Fluorescence,'' ASTM 
D 6428-99, entitled ``Test Method for Total Sulfur in Liquid Aromatic 
Hydrocarbons and Their Derivatives by Oxidative Combustion and 
Electrochemical Detection,'' and ASTM D 3120-96 (Reapproved 2002 
)e1, entitled ``Standard Test Method for Trace Quantities of 
Sulfur in Light Petroleum Hydrocarbons by Oxidative Microcoulometry.'' 
Refiners and importers would be able to choose which of these test 
methods best fits their needs for compliance measurements. We believe 
that

[[Page 57853]]

permitting the use of these test methods is desirable from the 
standpoint of permitting regulated parties more flexibility. A refiner 
or importer would be able to determine gasoline sulfur content using 
ASTM D 5453-00 e1 or any of the specified alternative 
analytical test methods named in the rule, provided that the refiner or 
importer result is correlated to ASTM D 2622-98.
    In order to ``correlate'' a test result from an alternative test 
method to the designated test method, a laboratory would have to 
develop and apply a ``correlation equation'' to the alternative test 
method result. Because the ``correlation equation'' is designed to 
provide a prediction of the designated test method result from the use 
of an alternative test method, the ``correlation equation'' eliminates 
bias between the designated test method and the alternative test 
method, so results may be compared between these methods. After 
applying the correlation equation, the results obtained from an 
alternative test method should be equivalent to the result you would 
obtain if you had used the designated test method. Users of a 
correlation equation should periodically verify its correlation to the 
designated test method.
    This notice of proposed rulemaking also proposes to permit the use 
of ASTM D 4468-85 (Reapproved 2000), ``Standard Test Method for Total 
Sulfur in Gaseous Fuels by Hydrogenolysis and Rateometric Colorimetry'' 
as an alternative test method for butane, because it is an ASTM 
approved method that some refiners may elect to use. If a refiner, 
importer, or blender chooses to measure butane levels with this 
alternative analytical test method, the results would have to be 
correlated to D 3246-96, ``Standard Test Method for Sulfur in Petroleum 
Gas by Oxidative Microcoulometry,'' which is the test method currently 
designated in the existing rule.
    Some refiners and butane suppliers expressed concern that the 
designated test method is not currently in wide use. When we issued the 
final gasoline sulfur control regulations, we did not intend to require 
the use of this method until January 1, 2004. However, the final 
regulation inadvertently did not specify that date and we are 
clarifying the effective date by this action. Until January 1, 2004, 
any test method may be used to determine the sulfur content of butane.
    We believe that this proposed rule, and our intent to establish a 
comprehensive performance based test method approach in the future, 
will advance the purposes of the ``National Technology Transfer and 
Advancement Act of 1995,'' (NTTAA) 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 for the use of alternative test methods for 
the measurement of sulfur in gasoline and butane under the RFG, anti-
dumping, and gasoline sulfur control programs. Allowing these test 
methods, which are widely available and approved by ASTM, a ``voluntary 
consensus body,'' is directly consistent with the goals of the NTTAA 
and OMB Circular A-119.
    Any environmental effects of today's proposed action would be 
minimal, as it would merely grant limited flexibility to regulated 
parties in their choice of test method for determining the sulfur 
content of gasoline and butane. The economic effects of today's 
proposed action are expected to be positive, since it permits regulated 
parties the flexibility to choose the test method they will use to 
comply with existing regulations.

III. Administrative Requirements

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.''
    This proposed rule is not a significant regulatory action within 
the meaning of the Executive Order. It would not have an annual effect 
on the economy of $100 million or more and is not expected to have any 
adverse economic effects as described in the Order. This proposed rule 
does not raise issues of consistency with the actions taken or planned 
by other agencies, would not materially alter the cited budgetary 
impacts, and does not raise any novel legal or policy issues as defined 
in the Order.

B. 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. Today's proposed rule would only permit more 
flexibility to parties in their choice of analytical test methods. OMB 
has approved the information collection requirements contained in the 
final reformulated gasoline (RFG) and anti-dumping rulemaking and 
gasoline sulfur control rulemaking has assigned OMB control number 
2060-0277.
    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.

C. Regulatory Flexibility Act

    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 proposed rule on 
small

[[Page 57854]]

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 would 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 proposed rule on small entities.'' 5 U.S.C. 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.
    We have therefore concluded that today's proposed rule will relieve 
regulatory burden for all small entities. By permitting alternative 
analytical test methods for the measurement of sulfur in gasoline and 
butane, smaller entities would be granted greater flexibility in 
performing compliance testing. 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.

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 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 proposed rule would 
impose no enforceable duty on any State, local or tribal governments or 
the private sector.

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 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. The proposed rule is limited to 
permitting flexibility in the choice of test methods. Thus, Executive 
Order 13132 does not apply to this proposed rule.

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 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 would apply to parties required to test gasoline and 
butane for gasoline and butane and does not impose any enforceable 
duties on communities of Indian tribal governments. Thus, Executive 
Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health & 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 proposed rule is not 
subject to Executive Order 13045, entitled ``Protection of Children 
from

[[Page 57855]]

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.

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.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This proposed rule advances the goals of the NTTAA by adopting test 
methods developed by voluntary consensus standards bodies.

J. 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)). 
Section 211(c) and 211(i) allows 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 proposed 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,
Acting Administrator.
[FR Doc. 03-25134 Filed 10-6-03; 8:45 am]
BILLING CODE 6560-50-P