Use of Alternative Analytical Test Methods in the Reformulated Gasoline Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of proposed rulemaking.

SUMMARY:

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

DATES:

Comments must be submitted by October 2, 2000.

ADDRESSES:

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

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

I. Regulated Entities

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

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

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

Section 211(k) of the Clean Air Act directs EPA to establish standards requiring the greatest reduction in emissions of ozone forming volatile organic compounds (VOCs) and toxic air emissions achievable through the reformulation of conventional gasoline, considering cost, other health and environmental factors and energy requirements. The Act requires that RFG meet certain content standards for oxygen, benzene, and heavy metals. RFG must be used in certain ozone nonattainment areas, called “covered areas.” The CAA also requires EPA to establish anti-dumping standards applicable to conventional gasoline used in the rest of the country. We issued final RFG and anti-dumping regulations on December 15, 1993 and these regulations became effective in January 1995.

Under the RFG and anti-dumping program, refiners, importers, and oxygenate blenders are required to test RFG and conventional gasoline for certain parameters, including sulfur levels, aromatic content, benzene content, and oxygen content. Test methods for determining these parameters are specified in the regulation. For oxygen and oxygenate content, 40 CFR 80.46(g)(1) through (8), (9)(ii), and (h) specify the use of the gas chromatographic procedure using an oxygenate flame ionization detector, or the “GC-OFID method.” For aromatics content, 40 CFR 80.46(f)(1) and (2) specifies the gas chromatography method.

Based upon comments received from the regulated industry during the RFG and anti-dumping rulemaking process, we concluded that it would be appropriate to temporarily allow the use of test methods not specified in the regulation for measuring oxygen and aromatics content. These comments tended to indicate that the designated test methods for oxygen and aromatics content were costly and relatively new, so we agreed to permit industry to use two specified alternative analytical test methods until January 1, 1997. The alternative analytical test method for oxygen is ASTM D 4815-93, entitled “Standard Test Method for Determination of MTBE, ETBE, TAME, DIPE, tertiary-Amyl Alcohol and C1 to C4 Alcohols in Gasoline by Gas Chromatography,” and the alternative analytical test method for aromatics is ASTM D 1319-93, entitled “Standard Test Method for Hydrocarbon Types in Liquid Petroleum Products by Flourescent Indicator Adsorption.” These alternative analytical test methods are specified in § 80.46(g)(9)(i) and (f)(3), respectively.

We later extended the deadline for use of the two alternative analytical test methods to September 1, 1998 and September 1, 2000. In granting these further extensions, we determined that permitting continued use of the specified alternative test methods would grant refiners, importers, and blenders significant flexibility and would not result in any environmental detriment. We continue to believe that the flexibility associated with alternative test methods will not result in any environmental detriment and that it is appropriate to allow these methods to be used. In the earlier notices, we discussed our intent to engage in a notice and comment rulemaking to establish performance-based analytical test methods. A performance-based approach would apply to the measurement of all RFG parameters listed at § 80.46 and would not be limited to oxygen and aromatics content. A performance-based approach would allow regulated parties additional flexibility in choosing analytical test methods since, rather than specifying the exact test method and equipment to be used, a performance-based approach would define the degree of precision and accuracy methods must meet and sets forth procedures to qualify methods for use.

By today's action, we are proposing to extend the time period during which the alternative test methods may be used to September 1, 2004 or until such time as a performance-based test methods approach rulemaking can be completed, whichever is sooner. Today's proposed rule only applies to the test methods for aromatics and oxygen content. As part of this proposed rule, we would update the two alternative test methods that may be used to measure oxygen and aromatics content to their current versions. The current version of the alternative analytical test method for aromatics is ASTM D 1319-99, entitled, “Standard Test Method for Hydrocarbon Types in Liquid Petroleum Products by Flourescent Indicator Adsorption.” The current version of the alternative analytical test method for oxygen and oxygenate content is ASTM D 4815-99, entitled, “Standard Test Method for Determination of MTBE, ETBE, TAME, DIPE, tertiary-Amyl Alcohol and C1 to C4 Alcohol in Gasoline by Gas Chromatography.” These two alternative test methods have been updated from ASTM D 1319-93 and ASTM D 4815-93, respectively. The updated methods incorporate minor technical revisions to help the person using the test method achieve more accurate results and do not require different or additional testing apparatus. Therefore, we believe it is appropriate to designate the current versions of these ASTM methods as the allowable alternative test methods. Doing so would not affect our earlier determination that there would be no environmental detriment, since these changes are minor This decision is not expected to be controversial, since the full flexibility associated with the use of alternative analytical test methods will be maintained.

Today's action only proposes to continue the existing flexibility in the use of these two alternative test methods. Consideration of test methods other than the specified alternative test methods for oxygen and aromatics is beyond the limited scope of this proposed rule. The performance-based test methods approach will establish criteria for qualifying other test methods for use. We do invite comment on the usefulness of other specific alternative test methods, not covered by this proposal, and on the appropriateness of considering such methods in future rulemaking actions.

We believe that this proposed rule, and our intent to establish a performance-based test method approach, may help advance the purposes of the “National Technology Transfer and Advancement Act of 1995,” section 12(d) of Public Law 104-113 and Office of Management and Budget (OMB) Circular A-119. Both of these documents are designed to encourage the adoption of standards developed by “voluntary consensus bodies” and to reduce reliance on government-unique standards where such consensus standards would suffice. This proposed rule would provide an extension of the deadline for using certain alternative test methods until September 1, 2004. We reasonably expect to complete rulemaking on the performance-based test methods approach prior to September 1, 2004. The performance-based test methods approach will address the use of these and other test methods.

III. Administrative Requirements

A. Executive Order 12866

Under Executive Order 12866 (58 FR 51735 (October 4, 1993), the Agency must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a Serious inconsistency or otherwise interfere with an action taken or planned by another Agency;

(3) Materially alter the budgetary impact of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

The Agency has determined that this proposed regulation would result in none of the economic effects set forth in Section 1 of the Order because it generally relaxes the requirements of the RFG program and provides regulated parties with more flexibility with respect to compliance with the RFG requirements. Pursuant to the terms of Executive Order 12866, OMB has waived review of this action.

B. Executive Order 13132 (Federalism)

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

If EPA complies by consulting, Executive Order 13132 requires EPA to provide to the Office of Management and Budget (OMB), in a separately identified section of the preamble to the rule, a federalism summary impact statement (FSIS). The FSIS must include a description of the extent of EPA's prior consultation with State and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met. Also, when EPA transmits a draft final rule with federalism implications to OMB for review pursuant to Executive Order 12866, EPA must include a certification from the agency's Federalism Official stating that EPA has met the requirements of Executive Order 13132 in a meaningful and timely manner.

This proposed rule would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This proposed rule would provide regulatory relief for refiners who choose to use alternative test methods and does not impose any substantial direct effects on the states. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

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

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's proposed rule would not significantly or uniquely affect the communities of Indian tribal governments. Today's proposed rule would not create a mandate for any tribal governments. This proposed rule would apply to gasoline refiners, importers, and blenders. Today's action would make some changes that would generally provide flexibility within the Federal RFG requirements, and would not impose any enforceable duties on communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this proposed rule.

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

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business that has not more than 1,500 employees (13 CFR 121.201); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. Sections 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. Today's proposed rule would provide regulatory relief by extending the deadline for use of alternative test methods for RFG. We have therefore concluded that today's proposed rule would relieve regulatory burden for all small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.

E. Paperwork Reduction Act

This proposed rule would not add any new requirements involving the collection of information as defined by the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The Office of Management and Budget (OMB) has approved the information collection requirements contained in the final RFG/anti-dumping rulemaking (See 59 FR 7716, February 16, 1994) and has assigned OMB control number 2060-0277 (EPA ICR No. 1591.07).

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

F. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

Today's proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local or tribal governments or the private sector. The proposed rule would impose no enforceable duty on any State, local or tribal governments or the private sector. This proposed rule would apply to gasoline refiners, blenders and importers. Today's proposed action suggests changes that would provide regulated parties with more flexibility with respect to compliance with the RFG requirements.

G. Executive Order 13045: Children's Health Protection

Executive Order 13045: Protection of Children from Environmental health Risks and Safety Risks (62 FR 19885, April 23, 1997) applies to any rule that: (1) is determined to be economically significant as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This proposed rule is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it does not involve decisions on environmental health risks or safety risks that may disproportionately affect children. This proposed rule would merely extend the deadline for use of alternative test methods under the RFG program and would not have an adverse effect on air quality.

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

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This proposed rule would provide an extension of deadline for use of certain analytical test methods for the RFG program until such time as a notice-and-comment rulemaking to establish performance-based analytical test methods is completed. Today's proposed action does not establish new technical standards or analytical test methods, although it does update existing alternative ASTM test methods to their current versions. To the extent that this proposed action would allow the use of standards developed by voluntary consensus bodies (such as ASTM) this action would further the objectives of the NTTAA. The Agency plans to address the objectives of the NTTAA more broadly in the upcoming rulemaking to establish performance-based analytical test methods.

I. Statutory Authority

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

List of Subjects in 40 CFR Part 80

• Environmental protection
• Air pollution control
• Incorporation by reference
• Reformulated gasoline