[Federal Register Volume 73, Number 81 (Friday, April 25, 2008)]
[Rules and Regulations]
[Pages 22277-22281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8944]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 79

[EPA-HQ-OAR-2007-0071; FRL-8557-8]
RIN 2060-AN94


Regulation of Fuels and Fuel Additives: Revised Definition of 
Substantially Similar Rule for Alaska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final interpretive rule.

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SUMMARY: EPA is taking direct final action to revise an interpretive 
rule defining the term ``substantially similar'' for unleaded gasoline 
as that phrase is used in section 211(f) of the Clean Air Act (the 
Act). To meet the current definition, fuel or fuel additives must 
possess, at the time of manufacture, all of the physical and chemical 
characteristics of an unleaded gasoline as specified in ASTM Standard D 
4814-88 for at least one of the Seasonal and Geographical Volatility 
Classes specified in the standard. EPA is amending the definition to 
allow some additional flexibility for the vapor/liquid ratio 
specification for fuel introduced into commerce in the state of Alaska 
in order to improve cold starting for vehicles during the winter months 
in Alaska.

DATES: This rule is effective on June 24, 2008 without further notice, 
unless EPA receives adverse comment by May 27, 2008. If EPA receives 
adverse comment, we will publish a timely withdrawal in the Federal 
Register informing the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2007-0071, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     E-mail: [email protected].
     Fax: (202) 566-9744
     Mail: Air and Radiation Docket, Environmental Protection 
Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 
20460.
     Hand Delivery: EPA Docket Center, Room 3334, EPA West 
Building, 1301 Constitution Avenue, NW., Washington, DC, Attention Air 
Docket ID No. EPA-HQ-OAR-2007-0071. Such deliveries are only accepted 
during the Docket's normal hours of operation, and special arrangements 
should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2007-0071. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects

[[Page 22278]]

or viruses. For additional information about EPA's public docket visit 
the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air Docket, EPA/DC, EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The 
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 Public 
Reading Room is (202) 566-1744, and the telephone number for the Air 
Docket is (202) 566-1742).

FOR FURTHER INFORMATION CONTACT: Jaimee Dong, Compliance and Innovative 
Strategies Division, Office of Transportation and Air Quality, Office 
of Air and Radiation, Environmental Protection Agency, Mail Code 6406J, 
1200 Pennsylvania Avenue, Washington, DC 20460; telephone number: (202) 
343-9672; fax number: (202) 343-2800; e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Why is EPA Using a Direct Final Rule?

    EPA is publishing this rule without a prior proposed rule \1\ 
because we view this as a noncontroversial action and anticipate no 
adverse comment. However, in the ``Proposed Rules'' section of today's 
Federal Register, we are publishing a separate document that will serve 
as the proposed rule to amend the definition of ``substantially 
similar.'' If adverse comments are received on this direct final rule, 
we will not institute a second comment period on this action. Any 
parties interested in commenting must do so at this time. For further 
information about commenting on this rule, see the ADDRESSES section of 
this document.
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    \1\ EPA is not statutorily obligated to conduct notice and 
comment rulemaking when amending this interpretive rule. See APA 
section 553(b)(A); CAA section 307(d). However, as it has done when 
previously amending this rule, EPA desires to provide an opportunity 
for the public to comment on this amendment.
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    If EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that this 
direct final rule will not take effect. We would address all public 
comments in any subsequent final rule based on the proposed rule.

II. General Information

A. Does This Action Apply to Me?

    Entities potentially affected by this action include those involved 
with the production or importation of unleaded gasoline for use in 
Alaska. Categories and entities affected by this action include:

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                   Category                     NAICS codes \a\    SIC codes \b\                 Examples of potentially regulated entities
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Industry.....................................            324110              2911  Petroleum refiners.
Industry.....................................            422710              5171  Gasoline marketers and distributors.
                                                         422720              5172
Industry.....................................            484220              4212  Gasoline carriers.
                                                         484230             4213
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\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 affected by this 
action; however, other types of entities not listed in the table could 
also be affected. To determine whether your entity is affected by this 
action, you should examine the applicability criteria of Parts 79 and 
80 of title 40 of the Code of Federal Regulations. If you have any 
question regarding applicability of this action to a particular entity, 
consult the person in the preceding FOR FURTHER INFORMATION CONTACT 
section.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.
    3. Docket Copying Costs. You may be charged a reasonable fee for 
photocopying docket materials, as provided by 40 CFR Part 2.

III. Statutory Background

    Section 211(f)(1) of the Act makes it unlawful for any manufacturer 
of a fuel or fuel additive to first introduce into commerce, or to 
increase the concentration in use of, any fuel or fuel additive for use 
in motor vehicles manufactured after model year 1974 which is not 
substantially similar to any fuel or fuel additive utilized in the

[[Page 22279]]

certification of any model year 1975, or subsequent model year, vehicle 
or engine under section 206 of the Act. An EPA interpretive rule, 
published at 46 FR 38582 (July 28, 1981) and amended at 56 FR 5352 
(February 11, 1991), defines the term ``substantially similar'' for 
unleaded gasoline. Under this definition, unleaded gasoline that meets 
several conditions, including complying with the physical and chemical 
specifications of ASTM Standard D 4814-88 for at least one of the 
Seasonal and Geographical Volatility classes specified in the standard, 
is considered substantially similar. Further conditions are described 
in the interpretive rule and its amendment.

IV. Need for Action

    Discussions with an Alaskan refiner have highlighted the need for 
an amendment to the definition of ``substantially similar'' for 
unleaded gasoline. Currently, manufacturers of gasoline for Alaska may 
not use a temperature below 41 degrees Celsius when testing the vapor-
liquid (V/L) ratio of the fuel and still be within the current 
definition of ``substantially similar.'' This amendment will allow 
manufacturers producing unleaded gasoline for use only in Alaska during 
the winter months to use a minimum test temperature of 35 degrees 
Celsius when testing for a maximum V/L ratio of 20 instead of requiring 
a V/L test temperature of 41 degrees Celsius.
    ASTM D 2533 is a test method that covers a procedure for measuring 
the volume of vapor formed at atmospheric pressure from a given volume 
of gasoline. The ratio of these volumes is expressed as the V/L ratio 
of the gasoline at the temperature of the test. The tendency of a fuel 
to vaporize in common automobile fuel systems is indicated by the V/L 
ratio of that fuel at conditions approximating those in critical parts 
of the fuel system. Allowing a lower test temperature means that the 
vapor fraction of the fuel may be higher.
    The extreme cold of Alaska during the winter months increases the 
risk that engines using typical gasoline blends will suffer from 
difficulty in cold starting. A higher vapor fraction improves mixing of 
the fuel with air, which in turn improves cold starting. Because the 
automotive fuel system is closed, the lower test temperature of 35 
degrees Celsius compared to 41 degrees Celsius in the winter months is 
unlikely to significantly increase evaporative emissions. In addition, 
Alaska presently does not possess ozone non-attainment areas, most 
likely due to the cold temperatures observed in Alaska. Therefore, in 
the Agency's judgment, the impact on emissions will not be significant 
and this increased flexibility will allow refiners to provide a fuel 
more suitable to the climatic conditions of Alaska.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). No information is collected as a 
result of this amendment to the ``substantially similar'' interpretive 
rule.

C. Regulatory Flexibility Act

    This interpretive rule is not subject to the Regulatory Flexibility 
Act (RFA) which generally requires an agency to prepare a regulatory 
flexibility analysis for any rule that will have a significant economic 
impact on a substantial number of small entities. The RFA applies only 
to rules subject to notice and comment rulemaking requirements under 
the Administrative Procedure Act (APA) or any other statute. This rule 
is not subject to notice and comment requirements under the APA or any 
other statute because it is an interpretive rule. See APA section 
553(b)(A); CAA section 307(d)).
    Although this interpretive rule is not subject to the RFA, EPA 
nonetheless has assessed the potential of this rule to adversely impact 
small entities subject to the rule. Small entity is defined as: (1) A 
small business as defined by the Small Business Administration's (SBA) 
regulations at 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. The 
impact of concern is any significant adverse economic impact on small 
entities since the primary purpose of the regulatory flexibility 
analysis is to identify and address regulatory alternatives ``which 
minimize any significant economic impact of the rule on small 
entities.'' 5 U.S.C. 603 and 604.
    After considering the economic impacts of today's direct final 
interpretive rule on small entities, the Agency does not believe that 
this action is likely to have an adverse economic impact on small 
entities. This final action amends the ``substantially similar'' 
interpretive rule by allowing a minimum test temperature of 35 degrees 
Celsius for a maximum V/L ratio of 20 from September 16 to May 31 for 
unleaded gasoline for use only in Alaska. This change is intended to 
improve cold starting in automobiles during the winter months in Alaska 
by allowing production and sale in Alaska during the winter season of 
unleaded gasoline with a higher volatility. This amendment to the 
interpretive rule does not impose a regulatory burden on anyone, 
including small businesses. Instead, this final action will have a 
positive impact, enabling all manufacturers, including small 
manufacturers, to produce and market this gasoline in Alaska. We 
therefore believe that today's final interpretive rule should have a 
positive economic impact on small entities.

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

[[Page 22280]]

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.
    EPA has determined that this interpretive rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and tribal governments, in the aggregate, or the 
private sector in any one year. This final action will amend the 
``substantially similar'' interpretive rule by allowing a minimum test 
temperature of 35 degrees Celsius for a maximum V/L ratio of 20 from 
September 16 to May 31 for unleaded gasoline for use only in Alaska, 
instead of requiring a test temperature of 41 degrees Celsius. Thus, 
today's interpretive rule is not subject to the requirements of 
sections 202 and 205 of the UMRA.

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 final interpretive 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 final action 
will amend the ``substantially similar'' interpretive rule by allowing 
a minimum test temperature of 35 degrees Celsius for a maximum V/L 
ratio of 20 from September 16 to May 31 for unleaded gasoline for use 
only in Alaska. The requirements of this amendment will be enforced by 
the federal government at the national level. Thus, Executive Order 
13132 does not apply to this interpretive 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 9, 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.'' This final interpretive rule 
does not have tribal implications, as specified in Executive Order 
13175. This interpretive rule will apply to gasoline refiners and 
importers of gasoline. This final action changes the volatility 
standards for gasoline in Alaska, and will not impose any enforceable 
duties on communities of Indian tribal governments. Thus, Executive 
Order 13175 does not apply to this interpretive rule.

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

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action 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: Energy Effects

    This interpretive rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it 
is not a significant regulatory action under Executive Order 12866.

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 interpretive rulemaking involves technical standards. This 
final action will amend the ``substantially similar'' interpretive rule 
by allowing a minimum test temperature of 35 degrees Celsius for a 
maximum V/L ratio of 20 from September 16 to May 31 for unleaded 
gasoline for use only in Alaska. The test temperature of 35 degrees 
Celsius may be found in Table 3, Vapor Lock Protection Class 6, of ASTM 
D4814-04a. All technical standards included in today's amendment to the 
``substantially similar'' interpretive rule are standards developed by 
ASTM, a voluntary consensus standards body, and thus raise no issues 
under the NTTAA. ASTM D4814-04a may be obtained from ASTM International 
at 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-
2959, 610-832-9585 (phone), 610-832-9555 (fax), or [email protected] (e-
mail); or through the ASTM Web site (http://www.astm.org).

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final interpretive rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This direct final interpretive rule will amend the 
``substantially similar'' interpretive rule by allowing a minimum test 
temperature of 35 degrees Celsius for a maximum V/L ratio of 20 from 
September 16 to May 31 for unleaded gasoline for use only in Alaska. 
This interpretive rule amendment does not relax the control measures on 
sources regulated by the rule and therefore will not cause emissions 
increases from these sources.

[[Page 22281]]

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit 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 United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective June 24, 2008.

    Dated: April 17, 2008.
Stephen L. Johnson,
Administrator.

0
For the reasons set forth above, EPA is amending the definition of 
substantially similar as follows:

Definition--Substantially Similar

    EPA will treat a fuel or fuel additive for general use in light-
duty vehicles manufactured after model year 1974 as substantially 
similar to any fuel or fuel additive utilized in the certification of 
any model year 1975, or subsequent model year vehicle or engine, under 
section 206 of the Act, i.e., ``substantially similar,'' if the 
following criteria are met.
    (1) The fuel must contain carbon, hydrogen, and oxygen, nitrogen, 
and/or sulfur, exclusively,\2\ in the form of some combination of the 
following:
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    \2\ Impurities which produce gaseous combustion products (i.e., 
products which exist as a gas at Standard Temperature and Pressure) 
may be present in the fuel at trace levels. An impurity is that 
substance which is present through contamination, or remains 
naturally, after processing of the fuel is completed.
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    (a) Hydrocarbons;
    (b) Aliphatic ethers;
    (c) Aliphatic alcohols other than methanol;
    (d)(i) Up to 0.3 percent methanol by volume;
    (ii) Up to 2.75 percent methanol by volume with an equal volume of 
butanol, or higher molecular weight alcohol;
    (e) A fuel additive \3\ at a concentration of no more than 0.25 
percent by weight which contributes no more than 15 ppm sulfur by 
weight to the fuel.
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    \3\ For the purposes of this interpretive rule, the term ``fuel 
additive'' refers only to that part of the additive package which is 
not hydrocarbon.
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    (2) The fuel must contain no more than 2.0 percent oxygen by 
weight, except fuels containing aliphatic ethers and/or alcohols 
(excluding methanol) must contain no more than 2.7 percent oxygen by 
weight.
    (3) The fuel must possess, at the time of manufacture, all of the 
physical and chemical characteristics of an unleaded gasoline as 
specified in ASTM Standard D 4814-88 for at least one of the Seasonal 
and Geographical Volatility Classes specified in the standard, with the 
exception of fuel introduced into commerce in the state of Alaska. For 
fuel introduced into commerce in the state of Alaska, all of the 
requirements of this section (3) apply, with the exception of the test 
temperature for a maximum Vapor/Liquid Ratio (V/L) of 20, which shall 
be a minimum of 35 [deg]C (95 [deg]F) for the period from September 16 
through May 31.
    (4) The fuel additive must contain only carbon, hydrogen, and any 
one or all of the following elements: Oxygen, nitrogen, and/or 
sulfur.\4\
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    \4\ Impurities which produce gaseous combustion products may be 
present in the fuel additive at trace levels.

 [FR Doc. E8-8944 Filed 4-24-08; 8:45 am]
BILLING CODE 6560-50-P