[Federal Register Volume 76, Number 20 (Monday, January 31, 2011)]
[Proposed Rules]
[Pages 5319-5323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2046]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[EPA-HQ-OAR-2008-0558; FRL9260-8]
RIN 2060-AP17


Regulation of Fuel and Fuel Additives: Alternative Test Method 
for Olefins in Gasoline

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
allow refiners and laboratories to use an alternative test method for 
olefin content in gasoline. This proposed rule will provide flexibility 
to the regulated community by allowing an additional test method for 
compliance measurement while maintaining environmental benefits 
achieved from our fuels programs.

DATES: Comments or a request for a public hearing must be received on 
or before March 2, 2011.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-HQ-
OAR-2008-0558, by one of the following methods:
    [cir] http://www.regulations.gov: Follow the on-line instructions 
for submitting comments.
    [cir] E-mail: [email protected].
    [cir] Fax: (202) 566-9744.
    [cir] Mail: ``EPA-HQ-OAR-2008-0558, Environmental Protection 
Agency,

[[Page 5320]]

    [cir] Mailcode: 2822T, 1301 Constitution Ave., NW., Washington, DC 
20460.''
    [cir] Hand Delivery: EPA Headquarters Library, Room 3334, EPA West 
Building, 1301 Constitution Ave., NW., Washington, DC. 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 Number EPA-HQ-OAR-
2008-0558. EPA's policy is that all comments will be included in the 
public docket without change and may be made available online at http://www.regulations.gov, http://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 
http://www.regulations.gov or e-mail. The http://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 http://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 or viruses. For additional instructions on submitting 
comments, go to Unit 1.B of the SUPPLEMENTARY INFORMATION section of 
this document: http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://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 http://www.regulations.gov or in hard copy at the Air Docket, EPA 
Headquarters Library, Mail Code: 2822T, EPA West Building, 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 holidays. 
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding holidays. The telephone number for the Public 
Reading Room is (202) 566-1742, and the facsimile number for the Air 
Docket is (202) 566-9744.

FOR FURTHER INFORMATION CONTACT: Joe Sopata, Chemist, Environmental 
Protection Agency, 1200 Pennsylvania Ave. (6406J), NW., Washington, DC 
20460; telephone number: (202) 343-9034; fax number: (202) 343-2801; e-
mail address: [email protected].

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

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments for EPA?
II. Proposed Rule Change
    A. Alternative Test Method for Olefins in Gasoline
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 of 1995 (UMRA)
    E. Executive Order 13123: 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 Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice and Minority Populations and Low-Income 
Populations
IV. Statutory Provisions and Legal Authority

I. General Information

A. Does this action apply to me?

    Regulated categories and entities potentially affected by this 
proposed action include those involved with the production, 
importation, distribution, sale and storage of gasoline motor fuel and 
diesel motor fuel.
    The table below is not intended to be exhaustive, but rather 
provides a guide for readers regarding entities likely to be regulated 
by this proposed action. This table lists the types of entities that 
EPA is now aware could be potentially regulated by this proposed 
action. Other types of entities not listed in the table could also be 
regulated. To determine whether an entity is regulated by this proposed 
action, one should carefully examine the existing regulations in 40 CFR 
part 80. If you have questions regarding the applicability of this 
proposed action to a particular entity, consult the person listed in 
the preceding FOR FURTHER INFORMATION CONTACT section.

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                   Category                     NAICSs Codes \a\    SIC Codes \b\                 Examples of potentially regulated parties
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Industry......................................            324110              2911  Petroleum Refiners.
Industry......................................             54138              8734  Testing Laboratories.
Industry......................................    422710, 422720        5171, 5172  Gasoline Marketers and Distributors.
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\a\ North American Industry Classification System (NAICS).
\b\ Standard Industrial Classification (SIC) system code.

B. What should I consider as I prepare my comments for EPA?

    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to EPA through EDOCKET, regulations.gov or e-mail. Clearly 
mark the part of 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:

[[Page 5321]]

    i. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Follow directions--The agency may ask you to respond to 
specific questions or organize comments referencing a Code of Federal 
Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. Proposed Rule Change

A. Alternative Test Method for Olefins in Gasoline

    Refiners, importers and oxygenate blenders producing gasoline are 
required to test Reformulated Gasoline (RFG), and conventional gasoline 
(CG) for various fuel parameters including olefin content. American 
Society for Testing and Materials (ASTM) D1319 is currently the 
designated test method for measuring the olefin content of gasoline.\1\
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    \1\ 40 CFR 80.46(b).
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    On July 6, 2006, the American Petroleum Institute (API) petitioned 
the Agency to allow ASTM D6550 as an alternative test method for 
measuring the olefin content of gasoline.\2\ The Agency agreed with 
this request, viewed API's petition as non-controversial, and because 
no adverse comments were anticipated published a direct final rule,\3\ 
along with a corresponding proposed rule,\4\ on December 8, 2008, that 
would allow ASTM D6550 as an alternative test method provided no 
adverse comment was received by January 7, 2009, which was the close of 
the comment period. Before the close of the comment period, however, 
the Agency received an adverse comment \5\ on the proposal for the 
allowance of ASTM D6550 as an alternative test method. On February 6, 
2009, the Agency published a partial withdrawal notice \6\ for the 
allowance of ASTM D6550 as an alternative test method. Since then, the 
American Petroleum Institute (API) and the New York State Department of 
Environmental Conservation (NYSDEC) have provided additional comments 
concerning the use of this alternative test method. These comments have 
been summarized and our responses to them are in the Response to 
Comments Document that has been placed in the docket for this 
rulemaking (Docket ID Number EPA-HQ-OAR-2008-0558).
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    \2\ See Air Docket  EPA-HQ-OAR-2008-0558-0002.
    \3\ 73 FR 74350, December 8, 2008.
    \4\ 73 FR 74403, December 8, 2008.
    \5\ See Air Docket  EPA-HQ-OAR-2008-0558-0005.
    \6\ 74 FR 6233, February 6, 2009.
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    EPA is proposing to allow ASTM D6550-05 (SFC) as an alternative to 
the designated test method, ASTM D1319-03[egr]1 (FIA), for 
measuring olefin content of gasoline, provided the results are 
correlated to ASTM D1319-03[egr]1 using a site-specific 
correlation of FIA (volume percent) versus SFC (weight percent). The 
Agency is also proposing that correlation be completed on a site-
specific basis. The Agency believes it is in a test facility's best 
interest to ensure that the gasoline fuel set used to develop the 
correlation spans the range of olefin properties representative of that 
refinery's or importer's gasoline production. This gasoline fuel set 
would be analyzed by the test facility's laboratory using both ASTM 
D1319-03[egr]1 (also known as FIA, or the designated test 
method) and ASTM D6550-05. A resulting correlation equation would then 
be developed in terms of ASTM D1319-03[egr]1 in volume 
percent and ASTM D6550-05 in weight percent. Thus, the applicable range 
of the resulting correlation from a facility's site specific 
correlation would be consistent with that specific facility's olefin 
content range. Furthermore, the requirement of correlating SFC test 
methods results to the FIA designated test method produces an SFC-FIA 
equivalent result that is suitable for input into the Complex Model or 
for meeting fuel reporting requirements.
    EPA originally proposed a 0.857 factor to convert from mass percent 
to volume percent when using ASTM D6500-05. NYSDEC commented this 
conversion factor was not intended for universal use and may not be 
appropriate for all gasoline. API commented that there is no need to 
use the 0.857 conversion factor when developing a correlation between 
ASTM D6500-05 and ASTM D1319-03.[egr]1 The Agency agrees 
with API's recommendation that there is no need to convert olefin 
content measured by ASTM D6550-05 in weight percent to volume percent. 
In today's proposal, EPA is omitting the initial conversion of olefin 
content measured by ASTM D6500-05 in weight percent to volume percent 
using the 0.857 factor, as earlier proposed on December 8, 2008.
    NYSDEC commented that a bias in test measurement results may occur 
between ASTM D1319-03[egr]1 and ASTM D6550-05. The Agency 
agrees with NYSDEC that a bias in gasoline olefin measurement results 
may exist between ASTM D1319-03[egr]1 and ASTM D6550-05. In 
order to compensate for any bias that may exist between these two 
analytical test methods, EPA is proposing to require ASTM D6550-05 to 
be correlated to ASTM D1319-03,[egr]1 its respective 
designated test method. Refiners or importers that choose to use ASTM 
D6550-05 for the measurement of olefin content in gasoline must report 
the correlated result, on a site-specific basis, with the designated 
method, ASTM D1319-03,[egr]1 when using the proposed EPA-
allowed alternative test method, ASTM D6550-05. The olefin result as 
determined by SFC (ASTM D6550-05) would be correlated to FIA (ASTM 
D1319-03[egr]1) based on a specific site's production and 
never used directly for compliance or as an input into the Complex 
Model.
    The Agency believes today's proposal is consistent with past Agency 
practice with our allowance of other alternative test methods as 
specified in 40 CFR 80.46. The Agency currently allows eight 
alternative test methods for the measurement of gasoline or butane 
properties provided their results are correlated to the fuel 
parameter's respective EPA designated test method. These alternative 
test methods are: ASTM D5453, ASTM D6920, ASTM D3120 and ASTM D7039 for 
sulfur in gasoline,\7\ ASTM D4468 and ASTM D3246 for sulfur in 
butane,\8\ ASTM D1319 for aromatics in gasoline,\9\ and ASTM D4815 for 
oxygenate content of gasoline.\10\ In addition, ASTM D4294, ASTM D6920 
and ASTM D5453 are approved alternative test methods for measuring the 
sulfur content of 500 ppm diesel fuel provided its test results are 
correlated to the designated test method, ASTM D2622.\11\ The Agency 
has evaluated ASTM D6550 as an alternative test method for olefins in 
gasoline and agrees with API's

[[Page 5322]]

request.\12\ EPA invites comments on today's proposal to allow ASTM 
D6550-05 as an alternative test method for olefin content of gasoline. 
Comments must be received on or before March 2, 2011.
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    \7\ See 40 CFR 80.46(a)(3)(i) through 80.46(a)(3)(iv).
    \8\ See 40 CFR 80.46(a)(4)(i) through 80.46(a)(4)(ii).
    \9\ See 40 CFR 80.46(f)(3)(i).
    \10\ See 40 CFR 80.46(g)(2)(i).
    \11\ See 40 CFR 80.580(c)(2).
    \12\ See EPA-HQ-OAR-2008-0558-0010.
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    Although not the subject of today's proposed rule, EPA intends to 
establish a performance-based test method approach (PBTM) rule which 
would provide criteria for the qualification of alternative test 
methods.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

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

B. Paperwork Reduction Act

    This proposed rule does not impose any new information collection 
burden. However, the Office of Management and Budget (OMB), under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., has 
approved the information collection requirements contained in the final 
RFG and anti-dumping rulemaking and has assigned OMB control number 
2060-0277. The OMB control numbers for EPA's regulations in 40 CFR are 
listed in 40 CFR part 9.

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 direct final rule 
on small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administrations' 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.
    After considering the economic impacts of today's direct final 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 USC 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.
    This proposed rule does not impose a regulatory burden on anyone, 
including small businesses. Instead, this proposed rule will have a 
positive impact by the allowance of ASTM D 6550-05 which will provide 
additional flexibility to the regulated community, including small 
businesses, in meeting olefins in gasoline testing requirements. We 
have therefore concluded that today's proposed rule will relieve 
regulatory burden for all affected small entities.

D. Unfunded Mandates Reform Act of 1995 (UMRA)

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 
U.S.C. 1531-1538, requires Federal agencies, unless otherwise 
prohibited by law, to assess the effects of their regulatory actions on 
State, local, and tribal governments and the private sector. Federal 
agencies must also develop a plan to provide notice to small 
governments to have meaningful and timely input in the development of 
EPA regulatory proposals with significant Federal intergovernmental 
mandates and must inform, educate, and advise small governments on 
compliance with the regulatory requirements.
    This 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. 
The proposed allowance of ASTM D 6550-05 will provide additional 
flexibility to the regulated community in meeting olefins in gasoline 
testing requirements. Thus, this rule is not subject to the 
requirements of sections 202 and 205 of the UMRA. This action is also 
not subject to the requirements of section 203 of UMRA because it 
contains no regulatory requirements that might significantly or 
uniquely affect small governments.

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. The proposed allowance of ASTM D 
6550-05 will provide additional flexibility to the regulated community 
in meeting olefins in gasoline testing requirements. Thus, Executive 
Order 13132 does not apply to this direct final rule.

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

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 6, 2000). This action 
applies to gasoline refiners, blenders and importers that supply 
gasoline. The proposed allowance of ASTM D6500-05 will provide 
additional flexibility to the regulated community in meeting olefins in 
gasoline testing requirements. Thus, Executive Order 13175 does not 
apply to this action.

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

    EPA interprets EO 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.

[[Page 5323]]

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

    This action is not subject to Executive Order 13211(66 FR 18355 
(May 22, 2001)) because it is not a significant regulatory action under 
Executive Order 12866.

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 proposed rule involves a technical standard. EPA is proposing 
to adopt an ASTM standard as described in Units II.A of the 
SUPPLEMENTARY INFORMATION section of this document. The technical 
standard included in today's rule is a standard developed by ASTM, a 
voluntary consensus standards body, and thus raises no issues under the 
NTTAA. The ASTM standard in today's action may be obtained from ASTM 
International at 100 Barr Harbor Drive, PO 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 and Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 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 proposed 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. The proposed allowance of ASTM D6500-05 will provide 
additional flexibility to the regulated community in meeting olefins in 
gasoline testing requirements. This proposed rule amendment does not 
relax control measures on sources regulated by the rule and therefore 
will not cause emission increases from these sources.

IV. Statutory Provisions and Legal Authority

    Statutory authority for today's proposed rule comes from sections 
211(c) and 211(k) of the CAA (42.U.S.C. 7545(c) and (k)). Section 
211(c) 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 
CG 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.
Regulation of Fuel and Fuel Additives: Alternative Test Method for 
Olefins in Gasoline

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: January 25, 2011.
Lisa P. Jackson,
Administrator.
    For the reasons set forth in the preamble, part 80 of title 40, 
chapter I of the Code of Federal Regulations is proposed to be amended 
as follows:

PART 80--REGULATION OF FUELS AND FUEL ADDITIVES

    1. The authority citation for part 80 continues to reads as 
follows:

    Authority:  42 U.S.C. 7414, 7521(l), 7545 and 7601(a).

Subpart D--[Amended]

    2. Section 80.46 is amended by adding paragraphs (b)(2) and 
(h)(1)(iii) to read as follows:


Sec.  80.46  Measurement of reformulated gasoline fuel parameters.

* * * * *
    (b) * * *
    (2)(i) Any refiner or importer may determine olefin content using 
ASTM standard method ASTM D6550 (incorporated by reference, see 
paragraph (h) of this section) for purposes of meeting any testing 
requirement involving olefin content; provided that
    (ii) The refiner or importer test result is correlated with the 
method specified in paragraph (b)(1) of this section on a site-specific 
basis.
* * * * *
    (h) * * *
    (1) * * *
    (iii) ASTM standard method D6550-05 (``ASTM D6550''), Standard Test 
Method for Determination of Olefin Content of Gasolines by 
Supercritical-Fluid Chromatography, approved November 1, 2005.
* * * * *
[FR Doc. 2011-2046 Filed 1-28-11; 8:45 am]
BILLING CODE 6560-50-P