

[Federal Register: December 15, 2005 (Volume 70, Number 240)]
[Proposed Rules]               
[Page 74581-74596]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15de05-30]                         


[[Page 74581]]

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Part IV





Environmental Protection Agency





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40 CFR Part 80



Regulation of Fuels and Fuel Additives: Modifications to Standards and 
Requirements for Reformulated and Conventional Gasoline Including 
Butane Blenders and Attest Engagements; Proposed Rule


[[Page 74582]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[OAR-2003-0019 FRL-8006-4]
RIN 2060-AK77

 
Regulation of Fuels and Fuel Additives: Modifications to 
Standards and Requirements for Reformulated and Conventional Gasoline 
Including Butane Blenders and Attest Engagements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to take action on certain modifications to 
the reformulated and conventional gasoline regulations. Based on 
experience gained since the promulgation of these regulations, EPA 
proposed these modifications along with various others in a Notice of 
Proposed Rulemaking (NPRM) published on July 11, 1997. In final rules 
published on December 31, 1997 and December 28, 2001, EPA took final 
action on several of the modifications proposed in the July 11, 1997 
NPRM. Today's action proposes to take action on many of the remaining 
modifications in the 1997 NPRM.
    The modifications in today's proposed rule would correct technical 
errors, clarify certain provisions, and codify guidance previously 
issued by the Agency. This rule also would make several minor technical 
corrections to the RFG rule which were not included in the July 11, 
1997 proposal, and make two minor technical corrections to the Tier 2 
gasoline sulfur rule. The emissions benefits achieved from the RFG and 
conventional gasoline programs would not be reduced as a result of this 
proposed rule.

DATES: Comments must be received on or before February 13, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2003-
0019 by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 

the on-line instructions for submitting comments.
    2. Agency Web site: http://www.epa.gov/edocket. EDOCKET, EPA's 

electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Follow the on-line instructions for submitting 
comments.
    3. E-mail: http://www.epa.gov/docket, attention ID No. OAR-2003-

0019.
    4. Mail: Air and Radiation Docket, Environmental Protection Agency, 
Mailcode: 6406J, 1200 Pennsylvania Ave., NW., Washington, DC 20460. 
Please include a total of 2 copies. In addition, please mail a copy of 
your comments on the information collection provisions to the Office of 
Information and Regulatory Affairs, Office of Management and Budget 
(OMB), Attn: Desk Officer for EPA, 725 17th St. NW., Washington, DC 
20503.
    5. Hand Delivery: EPA Docket Center, Environmental Protection 
Agency, 1301 Constitution Avenue, NW., Room B102, Mail Code: 6102T, 
Washington, DC 20460. 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. OAR-2003-0019. 
EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at http://www.epa.gov/edocket
, 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 EDOCKET, regulations.gov, or e-
mail. The EPA EDOCKET and the federal regulations.gov websites are 
``anonymous access'' systems, 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 EDOCKET or 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 information about EPA's public 
docket visit EDOCKET on-line or see the Federal Register of May 31, 
2002 (67 FR 38102).
    Docket: All documents in the docket are listed in the EDOCKET index 
at http://www.epa.gov/edocket. Although listed in the index, some 

information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in EDOCKET or in hard 
copy at the Air and Radiation Docket, EPA/DC, EPA West, Room B102, 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 and Radiation Docket is 
(202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Marilyn Bennett, Transportation and 
Regional Programs Division, Office of Transportation and Air Quality, 
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW. 
(6406J), Washington, DC 20460; telephone: (202) 343-9624; fax: (202) 
343-2803, e-mail address: mbennett@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    Entities potentially affected by this action include those involved 
with the production and importation of gasoline motor fuel. Regulated 
categories and entities affected by this action include:

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                                                                                        Examples of regulated
                 Category                     NAICS codes \a\      SIC codes \b\              entities
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Industry..................................              324110                2911  Petroleum Refiners,
                                                                                     Importers.
Industry..................................      422710, 422720          5171, 5172  Gasoline Marketers and
                                                                                     Distributors.
Industry..................................      484220, 484230          4212, 4213  Gasoline Carriers.
----------------------------------------------------------------------------------------------------------------
\a\ North American Industry Classification System (NAICS).
\b\ Standard Industrial Classification (SIC) system code.


[[Page 74583]]

    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 the types of entities that EPA is now aware 
could be potentially regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your entity is regulated by this action, you should carefully examine 
the applicability criteria of Part 80, Subparts D, E and F, of title 40 
of the Code of Federal Regulations. If you have questions regarding 
applicability of this action to a particular entity, consult the person 
listed 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 
EDOCKET, 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:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. 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.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. 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 in 40 CFR Part 2.

C. Outline of This Rule

I. General Information
II. Corrections of Typographical Errors and Minor Revisions
III. RFG and Anti-dumping Standards/Models
    A. Effective Dates for Standard Changes Due to Survey Failures
    B. Proper E300 Value for the Edge Target Fuel for Use in Complex 
Model Extrapolation
IV. RFG Compliance Requirements
    A. Clarification of Requirements to Test RFG and RBOB
    B. Transfer of Credits
    C. Compliance Survey Requirements
    D. Product Transfer Documentation (PTD)
    E. Exemption for Gasoline Used for Aviation and Racing Purposes
    F. References to Renewable Oxygenate Requirements
    G. Butane Blending
    H. Gasoline Treated as Blendstock (GTAB)
V. Anti-Dumping Requirements
    A. Imports of Gasoline by Truck
    B. Date for Submission of Attest Engagement Reports
VI. Attest Engagements
    A. Modification to Agreed-Upon Procedures in Sec. Sec.  80.128 
and 80.129, and Promulgation of Agreed-Upon Procedures in Sec. Sec.  
80.133 and 80.134
    B. Attest Procedures for GTAB, Previously Certified Gasoline 
(PCG), Truck Importers and Butane Blenders
VII. Public Participation
VIII. Statutory and Executive Order Reviews
IX. Statutory Provisions and Legal Authority

D. Modification of Provisions

    Some of the provisions in today's rule may be modified in a future 
rulemaking to reflect a recent Congressional mandate requiring the 
removal of the RFG oxygen requirement.\1\
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    \1\ Energy Policy Act of 2005, Pub. L. 109-58 (HR6), Sec.  1504, 
119 STAT 594, 1076-1077 (2005).
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II. Corrections of Typographical Errors and Minor Revisions

    In the July 7, 1997 Notice of Proposed Rulemaking (NPRM), EPA 
proposed the following corrections of typographical errors and minor 
revisions to the RFG and conventional gasoline regulations. EPA 
received either favorable or no comments on these changes. We are aware 
of no new information or circumstances arising since the proposal that 
would be likely to substantially change the impact or significance of 
these changes. Today's rule again proposes these changes.

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Sec.   80.2(ww)..............  Adds a definition of ``Gasoline Treated
                                as Blendstock'' or ``GTAB,'' which is
                                imported gasoline that is excluded from
                                the import facility's compliance
                                calculations, but is treated as
                                blendstock in a related refinery that
                                includes the GTAB in its refinery
                                compliance calculations.
Sec.   80.2(ee)..............  Revises the definition of reformulated
                                gasoline to delete the reference to a
                                gasoline marker under Sec.   80.82,
                                since the current regulations do not
                                include a requirement for a conventional
                                gasoline marker.
Sec.   80.49 (a).............  Corrects an incorrect reference to Sec.
                                80.43(c). The correct reference is Sec.
                                 80.49 (a)(5)(i).
Sec.   80.49(a)(1)...........  Corrects a typographical error in the
                                formula at the bottom of the new
                                parameter under Fuel 2. Change is from
                                ``C+B/2'' to ``(C+B)/2.''
Sec.   80.49(a)(3)...........  Corrects an incorrect reference to Sec.
                                80.43(c). The correct reference is to
                                Sec.   80.49 (a)(5)(i).
Sec.   80.49(b)..............  Corrects an incorrect reference to Sec.
                                80.43(c). The correct reference is Sec.
                                 80.49 (a)(5)(i).
Sec.   80.50 (a)(2)..........  Corrects an incorrect reference to Sec.
                                80.49(a). The correct reference is Sec.
                                 80.49(b).
Sec.   80.65 (e)(2)(ii)(B)...  Revises to correct an inadvertent
                                omission of the word ``importer'' in the
                                first sentence.
Sec.   80.65(g)..............  Revises to delete heading: ``Marking of
                                conventional gasoline,'' since the
                                regulations do not include provisions
                                for requiring a conventional gasoline
                                marker.
Sec.   80.68 (b)(2)(ii)......  Revises the word ``area'' to read
                                ``area(s)'' to clarify the application
                                of the equation to a situation in which
                                more than one area fails a survey or
                                survey series in a single year.

[[Page 74584]]


Sec.   80.69 (a)(4)..........  Revises to delete this provision. This
                                provision requires refiners and
                                importers to determine the properties of
                                reformulated gasoline blendstock for
                                oxygenate blending (RBOB) which are
                                sufficient to allow parties downstream
                                from the refinery or importer to
                                establish, through sampling and testing,
                                if the RBOB has been altered or
                                contaminated such that it will not meet
                                the applicable RFG standards subsequent
                                to the addition of the specified type
                                and amount of oxygenate. This provision
                                was intended to facilitate downstream
                                quality assurance programs, however,
                                since most RBOB is transported in a
                                fungible manner, we believe there is
                                little value to this requirement.
Sec.   80.69 (e)(2)(i)(A)....  Corrects a typographical error. The word
                                ``to'' was inadvertently omitted in the
                                final rule.
Sec.   80.69 (e)(2)(v).......  Corrects an incorrect reference to Sec.
                                80.70 (b)(2)(i). The correct reference
                                is Sec.   80.65 (e)(2)(i).
Sec.   80.75(a)..............  Revises to require refiners, importers,
                                and oxygenate blenders to include
                                notification to EPA of per-gallon versus
                                average election with the first
                                quarterly reports submitted each year,
                                in accordance with the provisions of
                                Sec.   80.65 (c)(3) which require
                                refiners, importers and oxygenate
                                blenders to designate whether, for a
                                given parameter, all batches of gasoline
                                are being subject to the per-gallon or
                                average standards.
------------------------------------------------------------------------

    The following technical corrections are also being proposed to be 
made to the fuels regulations in 40 CFR Part 80. These corrections are 
not substantive in nature and do not change the requirements of the 
fuels programs.

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

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Sec.   80.2(c)...............  Revises footnote 1 in Sec.   80.2(c) to
                                include the Northern Mariana Islands in
                                the definition of ``State'' under 40 CFR
                                Part 80, in accordance with the
                                definition of ``State'' in Sec.
                                3019(d) of the Clean Air Act. The
                                exclusion of the Northern Mariana
                                Islands from the list of U.S.
                                territories in footnote 1 is an
                                oversight in the current regulations.
Sec.   80.45(d)(1)(iv)(B)....  Reinstates regulatory text inadvertently
                                deleted from the Code of Federal
                                Regulations (CFR) when certain changes
                                were made to this section pursuant to a
                                rulemaking on December 31, 1997 (62 FR
                                6819).
Sec.   80.65(d)(2)(iii)......  Removes and reserves this section. This
                                section relates to the oxygenated fuels
                                program requirements (OPRG), which were
                                eliminated by rulemaking on November 6,
                                1997 (62 FR 50132).
Sec.   80.74(b)(2)...........  Deletes the requirement to retain results
                                of a test for the presence of a gasoline
                                marker. The current regulations do not
                                include a requirement for a gasoline
                                marker.
Sec.   80.74(f)..............  Revises to remove and reserve this
                                paragraph since the regulations do not
                                include provisions for requiring a
                                conventional gasoline marker.
Sec.   80.75(f)(2)(ii).......  Revises to delete references to OPRG
and (f)(2)(iii)..............   requirements which have been eliminated.
Sec.   80.76(b)..............  Revises to delete reference to
                                ``applicable blendstocks,'' since all
                                requirements relating to applicable
                                blendstocks have been eliminated.
Sec.   80.78(a)(1)(iii)......  Deletes this provisions since it relates
                                to OPRG requirements which have been
                                eliminated.
Sec.   80.78(a)(11)..........  Revises to correct an incorrect reference
                                to Sec.   80.78 (a)(8). The correct
                                reference is Sec.   80.78 (a)(7).
Sec.   80.78 (a)(3)..........  Deletes the prohibition against
                                manufacturing and selling or
                                distributing, or offering for sale or
                                distribution, dispensing, supplying, or
                                offering for supply, storing,
                                transporting or causing the
                                transportation of gasoline represented
                                as conventional gasoline which does not
                                contain a gasoline marker. The current
                                regulations do not include a requirement
                                for a gasoline marker.
Sec.   80.81 (c)(4)..........  Revises to delete this provision as it
                                pertains to a conventional gasoline
                                marker requirement and the regulations
                                do not include provisions for a gasoline
                                marker.
Sec.   80.101 (g)(9).........  Revises to delete references to the
                                blendstock tracking and accounting
                                requirements of Sec.   80.102, which
                                have been eliminated.
Sec.   80.410 (f)(4)(ii).....  Corrects an incorrect reference to Sec.
                                80.65 (e)(2)(iii). The correct reference
                                is Sec.   80.65 (f)(2)(iii).
Sec.   80.410 (r)(1)(iv).....  Corrects an incorrect reference to Sec.
                                80.410 (f)(3)(iii). The correct
                                reference is to Sec.   80.410
                                (f)(4)(iii).
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III. RFG and Anti-Dumping Standards/Models

A. Effective Dates for Standard Changes Due to Survey Failures

    Under Sec.  80.41(p), when a minimum or maximum per-gallon RFG 
standard is changed to be more stringent as a result of a survey 
failure, the effective date for the new standard is ninety days after 
EPA announces the new standard. In the NPRM, we determined that 
additional time is needed because of the lag time between the date 
refiners and importers begin producing gasoline to a new standard and 
the date this gasoline displaces the earlier gasoline through the 
distribution system. As a result, we proposed the following effective 
dates on which the new standard would be required after the date EPA 
announces the new standard: 60 days for gasoline produced at a refinery 
or imported by an importer; 120 days for facilities downstream of the 
refinery or importer other than retail outlets and wholesale purchaser-
consumers; and 150 days for retail outlets and wholesale purchaser-
consumers. Under this approach, refiners and importers would have 
approximately two months to begin meeting the new standard, downstream 
parties such as terminal operators would have about two months to 
transition to the new standard after shipments of gasoline meeting the 
new standard begin, and retailers and wholesale users would have about 
one month to transition after terminals must begin shipping gasoline 
meeting the new standard. We believed the times proposed for these 
stages were consistent with current industry practice for transitioning 
to new standards, such as the transition to meet the summertime high 
ozone season VOC standards each spring. However, as discussed below, in 
response to the comments on the proposal, we now believe that a 
somewhat longer transition time is needed.
    One commenter supported the proposal. However, two commenters said 
that the proposal does not allow sufficient time for parties to make 
the transition to a new standard following a survey failure. One of the 
commenters noted that prior EPA guidance allowed 90 days at the 
refinery gate and an additional 90 days at all downstream locations. 
See ``Surveys,'' RFG/Anti-dumping Questions and Answers, November 12, 
1996. Another commenter said that refiners need at least 90 days to 
allow time to plan, renegotiate supply contracts, and make refining/
distribution adjustments necessary to comply with the new standard.
    We agree with the commenters that additional time may be necessary 
for refiners to a make the transition to the new standard in the event 
of a standard

[[Page 74585]]

change due to a survey failure. Unlike the transition to the VOC 
standard which occurs each year, a new standard due to a survey failure 
may not be anticipated in sufficient time for refiners make necessary 
adjustments. As a result, we are proposing that the effective dates for 
standard changes due to a survey failure, expressed in the number of 
days after the date EPA announces the new standard, be as follows: 90 
days for gasoline produced at a refinery or imported by an importer; 
150 days for facilities downstream of the refinery or importer other 
than retail outlets and wholesale purchaser-consumers; and 180 days for 
retail outlets and wholesale purchaser-consumers. This structure is 
consistent with the prior guidance issued by EPA which allowed 90 days 
for refiners and importers and 180 days for downstream parties, but 
also provides for a 30 day transition period from the terminals to the 
retail outlets and wholesale purchase-consumers. We believe that a 30 
day period is necessary for retail outlets to turnover over their 
gasoline supply. Requiring a 30 day turnover period between terminals 
and retailers/wholesale purchaser consumers is consistent with the 
current provisions for transitioning to VOC controlled RFG each spring, 
which require terminals to meet the VOC control standard beginning on 
May 1 each year, and retailers and wholesale purchaser-consumers to 
meet the VOC control standard beginning on June 1.

B. Proper E300 Value for the Edge Target Fuel for Use in Complex Model 
Extrapolation

    The Complex Model as described in Sec.  80.45 includes provisions 
for extrapolations beyond the limits of the data upon which the model 
was based. The limits of the data define the ``allowable range'' which 
represents the range of fuel parameters within which the Complex Model 
equations are directly applicable, and outside of which extrapolation 
must be used up to the limits of the model \2\. These extrapolations 
take the form of intricate equations and a series of conditions for use 
of those equations. Among other things, the conditions associated with 
extrapolation direct Complex Model users to determine properties for an 
``edge target fuel.'' The edge target fuel is equivalent in all 
respects to the target fuel, except that no fuel parameters are allowed 
to exceed the limits of the allowable range. In effect, the edge target 
fuel represents the point in the multi-dimensional fuel parameter space 
where extrapolation begins.
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    \2\ The allowable range of the model is, in fact, a combination 
of the limits of the data and additional limitations that may be 
imposed by the existence of extreme, or curve turnover points.
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    The Complex Model equation for exhaust volatile organic compounds 
(VOCs) contained in Sec.  80.45(c)(1) includes a single interactive 
term. This term, the product of E300 and aromatics, necessitates that 
extrapolations involving E300 include a simultaneous evaluation of the 
aromatics level of the target fuel. Thus, in paragraph 
(c)(1)(iv)(C)(6), Complex Model users are directed to determine whether 
the mathematical phrase [80.32 + (-.390xARO)] is greater or less than 
94, and to set the E300 edge target fuel value accordingly. In so 
doing, users are determining whether the aromatics-dependent E300 
extrema (i.e. curve turnover) point falls beyond the limits of the 
available data in the Complex Model database.
    However, the language in paragraph (c)(1)(iv)(C)(6) is misleading. 
As currently written, the user is directed to set the E300 value of the 
edge target fuel at 94 vol% whenever the value of the phrase [80.32 + 
(0.390xARO)] is greater than 94. The Agency's intention, however, was 
that this step be taken only if the E300 term is being extrapolated. In 
other words, if the target fuel value for E300 falls below the higher 
limit for E300 in the allowable range as defined in Table 6, Sec.  
80.45(c)(1)(iv), then E300 is not being extrapolated, and the E300 
value of the edge target fuel should be equal to the E300 value of the 
target fuel.
    To correct this problem, we proposed to modify the provisions in 
Sec.  80.45(c)(1)(iv)(C)(6) and Sec.  80.45 (c)(1)(iv)(D)(6) to clarify 
that Complex Model users should only set the E300 value of the edge 
target fuel equal to 94 if the target fuel value for E300 exceeds the 
higher limit specified in Sec.  80.45(c)(1)(iv), Table 6.
    We previously received no comments on this change. Today's rule 
proposes to make this change.

IV. RFG Compliance Requirements

A. Clarification of Requirements To Test RFG and RBOB

    Section 80.65(e)(1) requires refiners and importers to determine 
the properties of each batch of RFG that is produced or imported. This 
determination is required for each parameter relevant to the RFG 
standards. We previously proposed to modify Sec.  80.65(e)(1) to add 
language to clarify that this section applies to RBOB as well as to 
RFG. We also proposed to add a cross reference to Sec.  80.69(a), which 
requires the certified properties of RBOB to be the properties of the 
RBOB subsequent to downstream blending with oxygenate, based on test 
results of a sample of the RBOB hand blended in the laboratory with the 
appropriate oxygenate type and amount. We believe the certification of 
RBOB already is implicit in Sec.  80.65(e), and that refiners and 
importers have been certifying and reporting the properties of RBOB 
based on the analysis results of a hand blend. In addition, we proposed 
to clarify that testing for RVP is necessary only for RFG and RBOB that 
is designated as VOC controlled, because RVP test results are relevant 
only to VOC controlled gasoline (for non-VOC controlled gasoline, the 
Complex Model uses an RVP value of 8.7 psi regardless of the actual RVP 
value of the gasoline.) Today's rule also clarifies that the volume as 
well as the properties of each batch of gasoline must be determined. We 
received no comments on these clarifications and today's rule again 
proposes these clarifications.

B. Transfer of Credits

    Section 80.67(h)(1)(iv) allows parties to transfer oxygen and 
benzene credits directly from the party who generates them to the party 
who uses the credits for compliance purposes. We received several 
inquiries with regard to whether transfers within the same company are 
covered under this section. We believe that a party may properly 
transfer legitimate credits within the company or outside of the 
company. As a result, we proposed to clarify that credit transfers may 
be either inter-company or intra-company. We received no comments on 
this clarification and today's rule again proposes this clarification.

C. Compliance Survey Requirements

1. Method of Computation for Averages in Survey Series
    The RFG rule affords refiners the flexibility to comply with the 
RFG standards on a refinery annual average basis, as opposed to 
requiring each refinery to comply based on the quality of its gasoline 
sold in a particular covered area. The RFG surveys are designed to 
ensure that this flexibility does not result in a covered area 
receiving gasoline that on average differs in quality from the average 
gasoline quality that would occur if averaging were required separately 
for each covered area. The surveys are conducted by an industry 
association according to a statistical sampling plan approved by EPA 
and involve sampling

[[Page 74586]]

gasoline from retail outlets. If the gasoline in an area fails to meet 
standards set forth in the regulations for a particular parameter, the 
standards for that parameter are made more stringent and the number of 
surveys that must be conducted in the following year is increased.
    Some of the gasoline characteristics evaluated by the survey are 
chiefly of interest because of their role in causing or contributing to 
ambient ozone levels. Surveys for these parameters (e.g., VOC surveys) 
are passed or failed based upon the average of results from a week-long 
survey. Other parameters (like benzene and toxics) are of concern 
because of their cumulative effects over a longer period of time. 
Surveys for these latter characteristics are passed or failed based 
upon the average of a year-long series of one-week surveys. The 
revisions to Sec.  80.68 proposed in today's rule relate to how the 
average of such a series of one-week surveys should be computed.
    Under the current regulations, determining the average for each 
survey series \3\ involves computation of a simple average \4\ of 
parameter values from each gasoline sample across all of the samples 
gathered during the year (without any consideration of which week-long 
survey the sample was a part). If all of the individual week-long 
surveys had equal sample sizes, this approach to computation would 
yield as good a representation of the fuel supply as the timing and 
distribution of the week-long surveys throughout the year permitted.\5\ 
Practical considerations involved in the design and conduct of an 
efficient overall survey operation, though, dictate some substantial 
variations in sample size among the week-long surveys. One such effect, 
and probably the most important one, stems from the fact that high-
ozone season surveys for ozone precursors must yield a confidence 
interval on the mean small enough to meet the precision requirements of 
the regulations (Sec.  80.68(c)(13)(iii)) for each individual survey. 
Since practical considerations dictate that surveys for the various 
parameters be conducted concurrently (i.e., each gasoline sample is 
analyzed for all parameters covered by the survey program), this 
situation results in larger-than-necessary sample sizes in the summer 
for non-ozone precursor parameters. Outside the summer ozone season 
there is no need to maintain precision standards for each individual 
survey, but only for the annual series of such surveys. In the interest 
of efficiency, the survey manager may be expected to cut back on sample 
sizes during these times at the beginning and end of the calendar year. 
As a result, the simple average substantially over-represents 
summertime gasoline.
---------------------------------------------------------------------------

    \3\ Section 80.68(c)(9)(i)(B) for toxics; (c)(10)(ii) for 
NOX; (c)(11) for benzene; and (c)(12) for oxygen.
    \4\ In the case of toxics, the computation introduces weights 
for the season (high-ozone season or outside of high-ozone season) 
since the statistical model used to compute the emissions is 
different in the two seasons. The weights substantially correct the 
overemphasis on summer that affects other non-ozone-related 
parameters, as discussed in the remainder of the text.
    \5\ While the design for each of the individual week-long 
surveys is probabilistic, a variety of considerations prevent EPA 
from distributing the surveys in a perfectly random manner with 
respect to time. The overall sampling approach for survey series 
thus departs, to some extent, from a purely probabilistic design.
---------------------------------------------------------------------------

    An additional reason for altering the prescribed approach to 
computing averages of series has to do with the weights attached to 
each sample to handle either lack of pre-survey information about an 
individual retail outlet's throughput or the situation where an outlet 
with unusually high throughput is located in a covered area with 
relatively few outlets and is consequently selected into the sample 
with certainty. For both situations the sample is not self-weighting 
and weights must be computed to properly represent the outlet's 
gallonage in the sample. The current approach, the simple average, 
requires that such weights be computed two different ways, once for the 
outlet's inclusion in the week-long survey for ozone-related parameters 
and then again for the annual average computation for non-ozone-related 
parameters. The latter set of weights cannot be computed until the 
year's data collection is complete, leaving some uncertainty up to the 
end of the year as to the status of survey results in areas where 
throughput data are not available for most outlets. This particular 
problem is a characteristic of the sample design approach currently 
being used by the industry survey organization, but that approach or 
some variant of it is likely to be used in any thorough attempt to meet 
the survey requirements in the regulations.
    Both the distortion and the difficulty in computing weights, as 
discussed above, can be eliminated by changing the method by which the 
average of each survey series is computed for a given parameter in a 
given RFG covered area. Instead of averaging all of the measurements on 
individual gasoline samples in the survey series, we proposed the 
following: (1) That the measurements for each week-long survey in an 
area be averaged, regardless of the sample size, to create a set of 
means of week-long surveys, and then (2) that all of the resulting 
individual survey averages for the area be averaged, themselves, across 
all of the surveys in the series. This approach removes a significant 
source of distortion, simplifies calculations, and improves the 
representativeness of the number that we use to make the important 
decision on whether the gasoline in an area has passed or failed a 
survey series. We received no comments on these proposed modifications 
to Sec.  80.68. Today's rule again proposes these modifications.
2. Clarification of Applicability of Survey Precision Requirements
    The intent of the survey precision requirements in Sec.  
80.68(c)(13)(iii) is to ensure that errors (in either direction) in 
survey or survey series pass/fail determinations would be unlikely. 
Without these requirements survey managers would be able to trade off 
risk of inappropriate survey failure against survey costs, and the 
environment would not be protected against the increased risk of errors 
in the other direction resulting from insufficient sampling.
    Therefore, the precision requirements should apply to the body of 
data that serves as the basis of each pass/fail determination. As 
currently written, the regulations attach the precision requirements 
exclusively to individual surveys without making it clear that for 
certain survey parameters the pass/fail determination is made against a 
year-long series of surveys rather than against a single survey. As a 
result, we proposed to clarify the regulations to attach the precision 
requirements to the appropriate body of data for each determination--to 
the individual survey where the parameters being evaluated are ozone-
related and to the survey series for other parameters. We received no 
comments on the proposed changes to Sec.  80.68(c)(13)(iii). Today's 
rule again proposes these changes.

D. Product Transfer Documentation (PTD)

1. Identification of the Gasoline
    In the NPRM, we proposed to add a reference to RBOB in Sec.  
80.77(c) (requiring the volume of gasoline to be included on PTDs) to 
clarify that this PTD requirement applies to RBOB as well as to 
gasoline. We also proposed to delete the reference to conventional 
gasoline in Sec.  80.77(f) (requiring title or custody PTDs to include 
identification of the gasoline as conventional or reformulated), since 
the requirements of Sec.  80.77 do not apply to conventional gasoline 
(there are separate PTD requirements that apply to conventional 
gasoline in Sec.  80.106), and we proposed

[[Page 74587]]

to add a reference to RBOB in Sec.  80.77(f) since the requirements of 
Sec.  80.77 do apply to RBOB. In addition, we proposed to delete the 
reference to RBOB in Sec.  80.77(g)(3), since this section requires 
parties to identify whether the product contains ethanol, and RBOB, by 
definition, does not contain oxygenate. We received no comments on 
these changes and today's rule again proposes these changes. In 
addition, today's rule proposes to revise Sec.  80.77(i) (listing the 
PTD requirements for RBOB) to remove the requirement in paragraph 
(i)(1) to identify RBOB as such on PTDs, since this requirement is now 
included in Sec.  80.77(f), as indicated above.
2. Elimination of PTD Requirements To Include Registration Numbers
    Sections 80.77(j) and 80.106(a)(1)(vi) require, in the case of 
transferors and transferees who are refiners, importers or oxygenate 
blenders, that the EPA assigned registration number of those persons be 
included on the PTDs for RFG and conventional gasoline, respectively. 
We believe that this requirement may be overly burdensome, particularly 
downstream of the refiner, importer or oxygenate blender, since such 
information may not be readily available. We also believe that other 
information which could identify the refiner, importer or oxygenate 
blender is likely to be available. As a result, we believe that this 
requirement has limited value as a means of identifying and tracking 
the gasoline, and that we will be able to adequately enforce the 
regulations without this requirement. As a result, we proposed to 
eliminate the requirement to include registration numbers on PTDs. We 
previously issued guidance indicating that EPA will not require 
compliance with this requirement. See Reformulated Gasoline and Anti-
dumping Questions and Answers (February 21, 1995).
    We received favorable comments on the proposal to delete the 
requirement to include EPA registration numbers on PTDs. Today's rule 
again proposes this change. Based on the same rationale for eliminating 
this requirement discussed above, we are also proposing to eliminate 
this same requirement under Sec.  80.81(g)(1)(vii) regarding California 
gasoline produced at a refinery located outside the State of 
California.

E. Exemption for Gasoline Used for Aviation and Racing Purposes

    Section 211(k)(5) of the CAA prohibits the sale or dispensing by 
any person of conventional gasoline to ultimate consumers in any 
covered area. This statutory prohibition on the sale or dispensing of 
conventional gasoline in RFG covered areas is not restricted to 
gasoline used to fuel motor vehicles, but rather applies to all 
gasoline sold or dispensed within an RFG covered area to any consumer, 
regardless of the use. The prohibition, therefore, includes gasoline 
sold or dispensed for uses such as in motor vehicles, boats, 
construction equipment, recreational vehicles, and lawn and garden 
equipment.
    We proposed that persons may be exempted from the prohibitions at 
Sec.  80.78(a)(1) against distributing, transporting, storing, selling 
or dispensing aviation and racing gasoline if they clearly identify the 
gasoline as gasoline not for use in RFG areas. We proposed that the 
racing vehicle exemption would apply only in the case of vehicles that 
are used exclusively as racing vehicles in races that are sanctioned by 
generally recognized race sanctioning bodies.\6\ In addition, the 
exception would apply only in the case of vehicles that do not meet the 
definition of ``motor vehicle'' under Clean Air Act Sec.  216(2) and 
Sec.  85.1703 \7\ and that are not registered or licensed for use on or 
operated on public roads or highways. The racing vehicle exemption 
applies to use of racing vehicles during practice and qualifying for, 
and competition in sanctioned races, and applies to motorcycles and 
boats used exclusively in sanctioned races.
---------------------------------------------------------------------------

    \6\ Examples of generally recognized race sanctioning bodies 
include the National Association for Stock Car Auto Racing, the 
Sports Car Club of America, the National Hot Rod Association, the 
American Motorcyclist Association, and the American Power Boat 
Association.
    \7\ Under Sec.  85.1703 a vehicle is a ``motor vehicle'' if it 
is self propelled and capable of transporting a person or materials, 
unless the vehicle meets one or more of the following criteria: (1) 
A maximum speed of not more than 25 miles per hour; (2) the absence 
of features customary for street use, such as a reverse gear, a 
differential, and required safety features; or (3) the presence of 
features that render the vehicle highly unsuitable for street use, 
such as tracks.
---------------------------------------------------------------------------

    The exemption for aviation gasoline used to fuel aircraft was 
proposed for safety considerations. Aviation gasoline must satisfy 
performance criteria that are relevant to the safe operation of 
aircraft, and this safety consideration outweighs the very limited 
potential for adverse environmental effects from conventional gasoline 
used in this manner. The exemption for racing gasoline is based on the 
special performance requirements for true race vehicles and the limited 
volumes of gasoline involved. We believe that the environmental impact 
from these exemptions is minimal, and the burden from refusing these 
exemptions is potentially significant. As a result, we believe the 
exemptions are warranted under these limited circumstances. See Alabama 
Power Company v. Costle, 636 F.2d 323, 357 (D.C. Cir. 1979). We have 
allowed these exemptions under guidance previously issued by the 
Agency. See Reformulated Gasoline and Anti-dumping Questions and 
Answers (January 17, 1995).
    We received no comments on the proposal to exempt racing vehicle 
and aviation gasoline. These provisions are contained in Sec.  
80.78(a)(12). Today's rule again proposes these provisions.

F. References to Renewable Oxygenate Requirements

    On August 2, 1994, we published regulations that would have 
required the use of ``renewable'' oxygenates to meet a portion of the 
oxygenate standard for RFG. See 59 FR 39290 (August 2, 1994). However, 
implementation of the renewable oxygenate requirements was stayed 
effective September 13, 1994, as a result of a legal challenge filed in 
the United States Court of Appeals for the DC Circuit. 59 FR 60715 
(November 28, 1994). The Court of Appeals ultimately held that the 
renewable oxygenate requirements for RFG are invalid. See American 
Petroleum Institute v. EPA, 52 F.3rd 1113 (D.C. Cir. 1995).
    In the NPRM, we proposed revisions to the RFG regulations to remove 
the language relating to the renewable fuels requirement. These 
revisions, and other references to renewable fuels, are shown in the 
following table. Today's rule again proposes these revisions.

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

------------------------------------------------------------------------
Sec.   80.65(d)(2)(vi).......  Paragraphs are deleted because they apply
(C) through (E)..............   only to renewable oxygenate
                                requirements.
Sec.   80.81.................  References to renewable oxygenate
                                requirements at Sec.   80.83 are deleted
                                in paragraphs (c)(2), (c)(5), (c)(6),
                                and (c)(10).
Sec.   80.83.................  Current section is deleted because it
                                applies only to renewable oxygenate
                                requirements. A new section 80.83 is
                                being added which provides procedures
                                for handling gasoline treated as
                                blendstock.
Sec.   80.128(e)(2)..........  Paragraph is revised to delete language
                                that applies only to renewable oxygenate
                                requirements.

[[Page 74588]]


Sec.   80.128(e)(6)..........  Paragraph is deleted because it applies
                                only to renewable oxygenate
                                requirements.
Sec.   80.129(a).............  Paragraph is revised to delete language
                                that applies only to renewable oxygenate
                                requirements.
Sec.   80.129(d)(3)(iii).....  Paragraph is deleted because it applies
                                only to renewable oxygenate
                                requirements.
------------------------------------------------------------------------

G. Butane Blending

    Under the RFG and conventional gasoline regulations, the addition 
of blendstock, including butane, to RFG or RBOB or conventional 
gasoline constitutes the production of gasoline. As a result, a butane 
blender is considered to be a refiner, subject to all standards and 
requirements that apply to refiners under the regulations. These 
requirements include meeting the standards applicable to RFG and 
conventional gasoline, sampling and testing each batch of gasoline 
produced, recordkeeping, and reporting.
    Butane is a blendstock that historically has been blended with 
gasoline, particularly in the wintertime. Butane usually is not blended 
with gasoline that will be used during the summertime because the 
increased volatility of gasoline blended with butane could violate the 
Federal or State volatility standards that apply during that period.
    We believe that the requirement that refiners sample and test each 
batch of gasoline produced is a significant impediment to blending 
butane. This sampling and testing requirement interferes with butane 
blending because butane typically arrives at blend terminals and is 
blended in relatively small quantities. Under the current regulations, 
a butane blending operation may be required to sample at a frequency 
that could be restrictive for some parties. As a result, we proposed to 
allow butane to be blended with conventional gasoline under an 
alternative sampling and testing option in which compliance would be 
based on the butane specifications provided by the butane supplier, 
subject to certain conditions specified in the proposal.
1. Butane Blending With Conventional Gasoline
    In the NPRM, we proposed that a butane blender who has 
documentation from the butane supplier indicating that the butane is of 
commercial grade (as defined in the regulations) may include the butane 
in anti-dumping compliance calculations based on the properties 
specified in the regulations for commercial grade butane. A butane 
blender that has documentation from the butane supplier indicating that 
the butane is of non-commercial grade (as defined in the regulations) 
may include the butane in compliance calculations based on the 
properties specified in the regulations for non-commercial grade 
butane, provided that the butane blender conducts a quality assurance 
program of sampling and testing to ensure that the butane has the 
properties specified in the regulations. A party that blends butane 
into gasoline under this alternative sampling and testing option would 
continue to be classified as a refiner and would be subject to all 
other refiner requirements.
    When butane is blended into conventional gasoline outside the high 
ozone season, we believe there is little adverse environmental impact 
as a result of this sampling and testing option, as long as the butane 
is of sufficient purity. As a result, we proposed that this alternative 
sampling and testing option for butane blended with conventional 
gasoline apply during the period outside the high ozone control period 
(May 1 through September 15). We have allowed butane to be blended with 
conventional gasoline in a manner that is consistent with this approach 
in guidance included in Reformulated Gasoline and Anti-dumping 
Questions and Answers (October 3, 1994). Our experience has been that 
this approach facilitates butane blending, and that certification 
mechanisms are appropriate.
    Although we proposed to allow use of this sampling and testing 
option for the entire period outside the high ozone control period, we 
requested comment on whether this sampling and testing option also 
should not apply during the ``shoulder periods'' immediately preceding 
and following the ozone control period. Most of the commenters 
recommended that the proposed flexibility not be disallowed during the 
shoulder periods. Some commenters indicated that the use of butane to 
allow optimum control of RVP levels in the shoulder periods would 
improve performance during these periods. One commenter believed there 
would be no adverse environmental effect from blending butane with 
conventional gasoline during the shoulder periods because blending low 
RVP gasoline with butane is limited by other gasoline specs (e.g., 
distillation), and because the shoulder periods have lower RVP gasoline 
from the high ozone period. One commenter, however, believed that 
butane blending could have a detrimental effect on the environment 
during the shoulder periods, since refiners start producing low vapor 
pressure gasoline well below the summer limit to change over the 
distribution system by the required dates, and adding butane to the low 
RVP gasoline in the spring would increase VOCs and slow the system 
changeover. In the fall, butane blending would effect a more 
instantaneous increase to the maximum RVP limit, increasing VOCs in 
this season.
    The anti-dumping requirements for conventional gasoline were 
included in the RFG rule to ensure that overall emissions of exhaust 
toxics and NOX will not increase over 1990 exhaust toxics 
and NOX emissions. After consideration of all the comments 
received and upon further analysis by EPA, we believe that, although 
gasoline blended with butane during the shoulder periods may have a 
somewhat higher RVP than non-butane blended gasoline, blending butane 
into conventional gasoline is unlikely to degrade the overall 
conventional gasoline pool from 1990 gasoline to any significant 
degree, since butane blending is likely to reduce winter complex model 
exhaust toxics and NOX emissions. See ``Butane Blending 
Technical Analysis,'' Memo to Docket. As a result, today's action again 
proposes the provisions for blending butane into conventional gasoline 
as previously proposed, and as currently allowed under the Question and 
Answer guidance, with no further limitations with regard to the time 
period in which the flexibility is allowed.\8\
---------------------------------------------------------------------------

    \8\ Note that today's rule regarding the sampling and testing 
requirements for butane blenders under the RFG and anti-dumping rule 
does not in any way alter or modify the sampling and testing 
requirements contained in 40 CFR 80.340 regarding butane blending 
into gasoline under the gasoline sulfur rule in Subpart H.
---------------------------------------------------------------------------

    One commenter indicated that, under certain circumstances, a 
refinery may wish to blend butane into conventional gasoline during the 
high ozone season, and that this practice should be allowed. The 
provisions for blending butane into conventional gasoline in today's 
rule would not prohibit a refiner from blending butane into 
conventional gasoline during the high ozone season. Butane blending 
into conventional gasoline may occur during the high ozone season, 
however, the butane blender must demonstrate, through sampling and 
testing, that the gasoline blended with the butane meets the volatility 
standards specified at Sec.  80.27. This would necessitate sampling and

[[Page 74589]]

testing each batch of the blended gasoline for RVP using the regulatory 
test method in Sec.  80.46.
    One commenter said the frequency of quality assurance sampling and 
testing for non-commercial grade butane should be one sample for every 
500,000 gallons or every three months, whichever is more frequent, 
instead of one sample for every 50,000 gallons or every three months, 
as proposed. The commenter indicated this would be consistent with the 
existing Question and Answer guidance. The guidance requires the 
frequency of quality control sampling and testing to be one sample for 
every 65 truckloads or every 17 rail cars of butane, or every three 
months, whichever is more frequent. EPA estimates that the average 
truckload contains approximately 8,000 gallons of butane. Under the 
existing guidance, 65 truckloads would be approximately 500,000 
gallons. Therefore, we agree with the commenter and believe that the 
proposed requirement to sample for every 50,000 gallons was in error. 
As a result, today's rule would require quality assurance sampling and 
testing for every 500,000 gallons of butane received, or every three 
months, whichever is more frequent.
    One commenter opposed the additional flexibility for butane 
blending which allows compliance with the gasoline standards on the 
basis of the butane specifications provided by the butane supplier with 
no further obligation to sample and test the finished product. This 
commenter believes that, in the case of a violation downstream, it 
would not be known whether the batch was off-spec as received by the 
butane blender, or whether the butane blender added something other 
than butane which caused the violation. Although the commenter raises a 
valid concern, we believe that violations of this nature will be rare, 
and that the approach in today's action today is adequate to address 
such violations. First, the annual average exhaust toxics and 
NOX emissions performance standards for conventional 
gasoline are met by the refiner. As discussed above, we believe that 
adding butane of the purity required by the regulations downstream from 
the refiner will not result in an increase of the exhaust toxics or 
NOX emissions performance of the gasoline. Under the 
regulations, the butane blender must have documentation of the purity 
of the butane added, and conduct quality assurance sampling and testing 
when blending butane that is not of commercial grade. Second, the only 
downstream standard for conventional gasoline is the summertime RVP 
standard. Although butane blending may raise the RVP of the gasoline, 
under the regulations, a party that blends butane into conventional 
gasoline during the high ozone season is required to test for RVP to 
ensure compliance with the RVP standard. In addition, under the current 
regulations, parties upstream from the facility at which a violation is 
detected are presumed liable (as well as the facility where the 
violation was detected). To successfully defend against a presumption 
of liability, a party must demonstrate that the violation was not 
caused by him (or his employee or agent). Such demonstration must 
include a reasonably specific showing, by direct or circumstantial 
evidence, that the violation was caused or must have been caused by 
another party. See Sec.  80.79(b). Therefore, for violations found 
downstream from the butane blender, the butane blender would likely be 
required to demonstrate that another party contaminated the gasoline 
after it left the butane blending facility.
    One commenter recommended that the proposed properties for ``non-
commercial'' grade butane be changed to reflect the conventional 
gasoline baseline values. As discussed above, the rule provides that a 
refiner that blends butane for which the refiner has documents from the 
butane supplier demonstrating that the butane has the properties for 
non-commercial grade butane may demonstrate compliance based on these 
properties provided that the refiner conducts a quality assurance 
sampling and testing program of the butane. We believe that butane must 
at least be of the quality reflected in the rule for non-commercial 
grade butane for EPA to be assured, in the absence of every-batch 
testing, that the butane blending will not result in any environmental 
degradation.
    One commenter suggested that EPA consider not requiring butane 
blenders to run the Complex Model equations for each batch of butane 
blended. The provisions for butane blenders contain maximum values for 
olefins, aromatics, benzene and sulfur for commercial and non-
commercial grade butane. In the NPRM, we proposed that butane blender-
refiners use these values in compliance calculations. We believe, 
however, that the Complex Model normally will yield results that are in 
compliance using the maximum parameter values prescribed in the rule. 
As a result, today's rule would require batch reporting of the volume 
and properties of the butane, but does not require parties to calculate 
emissions using the Complex Model for each batch of butane blended with 
conventional gasoline. However, if a refiner wishes to include butane 
blended with conventional gasoline in the annual average compliance 
calculations for the refinery, the refiner would be required to 
calculate the equivalent emissions performance of the butane using the 
provisions in Sec.  80.101(g)(3). Given the difficulty associated with 
testing butane, and recognizing that the parameter values prescribed in 
the rule provide a worst case scenario, the rule also would provide 
that the parameter values specified in the rule may be used in 
calculating the equivalent emissions performance under Sec.  
80.101(g)(3). A refiner who chooses to include the butane in annual 
average compliance calculations would be required to include all butane 
blended during the annual averaging period in compliance calculations.
2. Butane Blending With RFG
    In the proposal, we requested comment on whether EPA should allow 
this sampling and testing option for butane blended with RFG. Several 
commenters said that butane blending would improve the performance of 
RFG. One commenter recommended that the sampling and testing 
flexibility be extended to butane blending with RFG, but be limited to 
certain periods of the year and certain areas of the country.
    At the time the provisions for butane blending were proposed, we 
were unable to establish with any reasonable degree of certainty 
whether adding butane to RFG would result in any increase in emissions 
of toxics or NOX emissions. Because of the additional level 
of environmental concern associated with RFG, we believed that the 
flexibility to demonstrate compliance based on butane specifications 
provided by the butane supplier rather than on sampling and testing 
each butane blend should not be extended to RFG in the absence of data 
indicating that there would be no increase in these emissions. However, 
based on our recent analysis, we have concluded that, although the 
increase in RVP associated with butane blending may cause some increase 
in NOX emissions, any negative effect on emissions is not 
likely to be significant enough to cause the gasoline to be in 
noncompliance with the wintertime RFG emissions standards. See ``Butane 
Blending Technical Analysis,'' Memo to Docket. As a result, today's 
action would allow butane to be blended into RFG in the wintertime 
under the provisions in the rule. The sampling and testing provisions 
for blending

[[Page 74590]]

butane into conventional gasoline and RFG are contained in new Sec.  
80.82.\9\
---------------------------------------------------------------------------

    \9\ Section 80.82 is currently reserved under the heading 
``Conventional gasoline marker.'' At the time the RFG final rule was 
promulgated, we elected not to include provisions for a conventional 
gasoline marker requirement, but reserved this section in order to 
include such provisions at a later date. See 59 FR at 7775 (February 
16, 1994). Since we have no current plans to promulgate a 
requirement for a conventional gasoline marker, we are using this 
section to include the provisions relating to butane blending.
---------------------------------------------------------------------------

    Today's rule does not propose to allow use of this sampling and 
testing option for blending butane into RFG during the high ozone 
control period or during the shoulder periods immediately preceding and 
immediately following the high ozone control period. The increase in 
RVP associated with butane blending causes an increase of VOC 
emissions. As a result, blending butane into gasoline that is sold 
during the ozone control period or during some period prior to the 
beginning of the control period may cause the gasoline to be in 
noncompliance with the VOC minimum standard. As discussed above, the 
RVP increase associated with butane blending may also result in some 
increase in NOX emissions. Both VOC and NOX 
emissions contribute to higher ozone levels. When the RFG rule was 
promulgated, it was anticipated there would be ozone benefits during 
the shoulder periods, as well as during the ozone control period, as a 
result of the turnover to and from VOC controlled gasoline at the 
beginning and end of the ozone control period.\10\ In many RFG areas, 
and particularly in areas with warmer climates, ozone may be of some 
concern during these shoulder periods. Blending butane into RFG could 
compromise the ozone benefits derived from having lower RVP gasoline in 
the distribution system before and after the ozone control period. As a 
result, today's rule would provide that the sampling and testing option 
for parties who blend butane into RFG applies only to the period 
October 1 through March 31.
---------------------------------------------------------------------------

    \10\ See 56 FR 31282-3 (August 19, 1987).
---------------------------------------------------------------------------

    For the reasons discussed above regarding butane blended with 
conventional gasoline, today's rule does not propose to require parties 
that blend butane with RFG or RBOB in accordance with the provisions of 
Sec.  80.82 to calculate emissions using the Complex Model. However, 
refiners who wish to include gasoline batches produced by blending 
butane with RFG or RBOB in annual averaging compliance calculations 
would need to determine compliance with the RFG standards using the 
Complex Model. As discussed above, today's rule would provide that the 
equivalent emissions performance of butane blended with conventional 
gasoline may be determined using the provisions in Sec.  80.101(g)(3). 
The provisions in Sec.  80.101(g)(3), however, apply specifically to 
blendstock blended with conventional gasoline, and are not applicable 
to blendstock blended with RFG or RBOB. As a result, today's rule 
proposes to provide that, where butane is blended with RFG or RBOB, and 
where the refiner wishes to include the butane in annual average 
compliance calculations, the relaxed sampling and testing approach 
under Sec.  80.82 may not be used. The emissions performance of 
gasoline produced by blending butane with RFG or RBOB may be calculated 
in accordance with the provisions for using previously certified 
gasoline in Sec.  80.65(i). Although this requires sampling and testing 
of the previously certified gasoline and the gasoline subsequent to 
blending the butane, we believe it is necessary to ensure that the 
integrity of the RFG program will not be compromised where butane is 
included in a refinery's annual average compliance calculations for RFG 
or RBOB. A refiner who chooses to include butane blended with RFG or 
RBOB in annual average compliance calculations would be required to 
include all butane blended during the annual averaging period in 
compliance calculations.
    Today's rule also proposes to add specific recordkeeping and 
reporting provisions for refiners who blend butane with RFG or RBOB or 
conventional gasoline. These provisions represent modest changes to the 
recordkeeping and reporting requirements for butane blenders. They 
require retention of documents and reporting of information necessary 
to verify that the requirements of Sec.  80.82 have been met.

H. Gasoline Treated as Blendstock (GTAB)

    Today's rule includes provisions for treating imported gasoline as 
a blendstock under the RFG rule. These provisions would allow an 
importer to conduct remedial blending of off-spec imported gasoline. 
Under the provisions of today's rule, the volume and properties of the 
imported product, called gasoline treated as blendstock, or GTAB, would 
not be included in the party's importer compliance calculations, but 
instead would be included in the party's refinery compliance 
calculations for the finished product.
    Under the RFG and anti-dumping regulations, if imported gasoline is 
blended with additional blendstock, the blending constitutes a refinery 
operation for which all refiner RFG/anti-dumping requirements must be 
met, including compliance with refinery standards, batch sampling and 
testing, independent sampling and testing (for RFG), recordkeeping, 
reporting, and attest engagements. The RFG or anti-dumping standards 
for such an operation must be met solely on the basis of the 
blendstocks used, and the imported gasoline which was previously 
accounted for by the importer may not be included. This is true 
regardless of whether the blending-refining is conducted by the 
original importer of the gasoline or by another party. As a result, 
under the current regulations, it is difficult for importers to conduct 
remedial blending of imported gasoline that does not meet 
specifications (i.e, is ``off-spec'') prior to certification as RFG or 
conventional gasoline.
    In the case of RFG, for example, the importer cannot import off-
spec RFG and then add blendstocks to meet RFG specifications, and the 
gasoline cannot be imported as conventional and converted to RFG after 
remedial blending. The importer, therefore, must downgrade off-spec RFG 
to conventional gasoline, which can have significant financial 
consequences to the importer. A refiner who produces a batch of RFG or 
conventional gasoline that is off-spec prior to the gasoline leaving 
the refinery or being fungibly mixed at the refinery, on the other 
hand, can delay designating the gasoline as a batch of RFG, reblend the 
batch to correct the off-spec condition, and designate the reblended 
gasoline as a batch for refinery compliance calculations.
    To correct this situation, we proposed provisions which would allow 
importers to conduct remedial blending of off-spec imported gasoline by 
treating the imported conventional gasoline or RFG as blendstock. This 
allowance would be subject to certain requirements and limitations. For 
example, to prevent the marketing of gasoline that has not been 
certified, the proposal prohibits GTAB to be sold or transferred by the 
importer to another company prior to the completion of remedial 
blending. The company that imports the gasoline and classifies it as 
GTAB in its importer capacity also must conduct the remedial blending 
and report the blended gasoline in its refiner capacity. We believe 
that without this constraint gasoline could be lost in the fungible 
distribution system without ever having been certified.
    In addition, for conventional gasoline standards, which are based 
on a company's individual baseline, we

[[Page 74591]]

proposed to require the company each year to calculate an adjusted 
refinery compliance baseline for the refinery where the GTAB is used to 
produce gasoline. This adjusted compliance baseline would be calculated 
separately each calendar year averaging period in which GTAB is used to 
produce gasoline, and consist of the volume-weighted combination of the 
company's importer baseline at the GTAB volume for the year, and the 
refinery's individual baseline at the refinery's gasoline volume 
exclusive of GTAB for the year. This requirement is intended to prevent 
a company with an individual refinery baseline that is less stringent 
than the company's importer baseline from using the GTAB option as a 
way to apply the less stringent refinery baseline to imported gasoline.
    EPA has allowed use of this GTAB option under guidance included in 
Reformulated Gasoline and Anti-Dumping Questions and Answers (February 
6, 1995). We believe this guidance has been effective in providing 
importers with flexibility to correct off-spec imported gasoline, and 
that the conditions and limitations have been effective in preventing 
compliance difficulties.
    We received several favorable comments on the proposal for GTAB. 
One commenter, however, recommended that EPA eliminate a proposed 
provision which would prohibit GTAB from being placed in a storage tank 
containing other gasoline unless the gasoline in the storage tank has 
the same designations under Sec.  80.65(d) as the gasoline to be 
produced using the GTAB. The commenter believes that this prohibition 
was intended to prevent an importer from using conventional gasoline in 
the production of RFG and from reclassifying RFG with regard to VOC 
control in violation of Sec.  80.78(a)(1). The commenter believes that 
this prohibition should be eliminated in light of the greater 
flexibility given to refiners for using previously certified gasoline 
(PCG).
    The PCG provisions referred to in the comment were proposed 
finalized on December 28, 2001. 66 FR 67098. These provisions allow a 
refiner to use PCG in the production of a new batch of gasoline by 
entering the PCG batch in the refinery's compliance calculations as a 
negative batch in the category of its original designation. We do not 
believe that the GTAB provisions are in conflict with the provisions 
for using PCG. GTAB itself is not considered to be PCG, since it was 
not previously certified by the importer and included in the importer's 
compliance calculations. Instead, as discussed above, the GTAB is 
treated as a blendstock. In some cases, the PCG provisions may be used 
in the same blending operation that uses the GTAB approach. In such 
cases, the importer/refiner would determine the volume and properties 
of the GTAB and report the GTAB batch in its importer report to EPA, 
but would not include the volume and properties of the GTAB in its 
importer compliance calculations. The GTAB could then be put into a 
storage tank with PCG of a different designation, assuming the volume, 
properties and designation of the PCG were determined before the 
products were commingled. The importer/refiner could then blend the 
GTAB and PCG, with or without other blendstock, to produce a new batch. 
The PCG volume and properties would be entered as a negative batch in 
the refinery's compliance calculations in the category of the PCG 
batch's original designation. The entire batch would then be sampled 
and tested and included in the refinery's compliance calculations 
(using the appropriate GTAB equation). Today's action includes language 
to clarify that the PCG provisions and the GTAB provisions may be used 
in the same blending operation. However, where the PCG procedures are 
not used, GTAB may not be placed in a storage tank containing other 
gasoline unless the other gasoline has the same designations under 
Sec.  80.65(d).
    The commenter also recommended that Sec.  80.83(e) be rewritten to 
clarify that the provisions for determining an adjusted baseline do not 
apply to GTAB used to produce RFG after January 1, 1998, since there 
are no RFG standards based on individual baselines after that date. We 
agree with the commenter and today's action would change the regulatory 
language to clarify that the provisions for determining an adjusted 
baseline do not apply to GTAB used to produce RFG after January 1, 
1998.
    One commenter recommended that EPA clarify whether importers are 
required to use their independent lab for GTAB imports, and whether the 
reports of GTAB should be sent on an annual basis.
    We believe the regulations as proposed are clear with regard to 
both the independent lab requirement and the reporting requirements. 
Section 80.83(f)(1) requires independent lab sampling and testing for 
GTAB used to produce RFG. Section 80.83(f)(3) requires any GTAB that is 
used to produce RFG to be treated as imported RFG for purposes of 
sampling and testing, which would include the independent lab 
requirement.
    We previously proposed to add provisions to the recordkeeping and 
reporting requirements for RFG regarding GTAB. These provisions would 
require refiners and importers to keep records that reflect the 
physical movement of the GTAB from the point of importation to the 
point of blending to produce RFG, and require GTAB to be identified as 
such on quarterly RFG reports. We also proposed similar recordkeeping 
requirements for GTAB under the anti-dumping regulations for 
conventional gasoline. We received no negative comments on these 
provisions and they are again being proposed. The previous proposal, 
however, did not include a requirement that parties identify GTAB 
batches on their anti-dumping annual reports. Today's action proposes 
to include this requirement, which we believe is a logical outgrowth of 
the previous proposal.
    One commenter pointed out that the GTAB provisions as proposed fail 
to define certain terms in the equations. Today's rule would correct 
this oversight by including definitions for all terms in the equations.
    Today's rule also again proposes the definition of GTAB which was 
previously proposed. The definition is at Sec.  80.2(f).
    Finally, today's rule would add a new Sec.  80.211 to allow the 
GTAB provisions to be used for purposes of compliance with the gasoline 
sulfur requirements in Subpart H. The rationale for allowing use of the 
GTAB provisions under the RFG/anti-dumping regulations also applies to 
use of the GTAB provisions under the gasoline sulfur regulations. We 
believe that application of the GTAB provisions to the gasoline sulfur 
regulations would provide consistency in the fuels regulations 
regarding the way off-spec imported gasoline may be treated. We believe 
that this provision is a logical outgrowth of the proposal for use of 
GTAB under the RFG/anti-dumping regulations.

V. Anti-dumping Requirements

A. Imports of Gasoline by Truck

    The requirements that apply to imported gasoline under Sec. Sec.  
80.65 (b) and (c), and 80.101(d) and (i), apply to each batch of 
imported gasoline regardless of the mode of transportation. These 
requirements include batch sampling and testing, independent sampling 
and testing for RFG, record keeping, reporting and attest engagements. 
Therefore, an importer who imports gasoline into the United States by 
truck is required to meet these requirements, including sampling and 
testing for each batch of gasoline. For a

[[Page 74592]]

truck importer, a batch could consist of the gasoline contained in the 
truck if homogeneous, or in each truck compartment if the truck's 
gasoline is not homogeneous.
    We believe that the every-batch requirements may be difficult to 
meet when gasoline is imported by truck, because of the relatively 
small batch volumes involved. As a result, we proposed a limited 
alternative method by which importers could meet the requirements for 
conventional gasoline that is imported into the United States by truck. 
This approach is limited to imported conventional gasoline, and does 
not apply in the case of imported RFG because of the additional level 
of environmental concern associated with RFG.
    The proposed approach was based on the importer meeting the 
conventional gasoline standards on a per-gallon basis, rather than the 
current regulatory approach of meeting conventional gasoline standards 
on average. Per-gallon compliance was proposed so that the importer 
would not have to sample and test each truck load of imported gasoline, 
which we believed would be necessary for demonstrating compliance with 
a standard on average. Under the proposal, the importer instead would 
be allowed to rely on sampling and testing conducted by the operator of 
the truck loading terminal to verify that the gasoline meets all 
conventional gasoline standards that apply to the importer.
    Because the terminal operator in most cases would not be subject to 
United States laws, the proposal contained safeguards intended to 
ensure that the gasoline in fact meets the applicable standards. Under 
the proposal, the importer would be required to conduct an independent 
program of quality assurance sampling and testing of the gasoline 
dispensed to the importer. This sampling and testing would be at a rate 
specified in the proposal, and the sampling would be unannounced to the 
terminal operator. In addition, EPA inspectors would be given access to 
conduct inspections at the truck loading terminal and at any laboratory 
where samples collected pursuant to this approach are analyzed.
    We have allowed conventional gasoline to be imported by truck in a 
manner that is consistent with the approach proposed in the NPRM under 
guidance include in Reformulated Gasoline and Anti-dumping Questions 
and Answers, August 29, 1994. Our experience has been that this 
approach facilitates imports of conventional gasoline by truck, and 
that the sampling and testing requirements are appropriate enforcement 
safeguards. As a result, today's rule again proposes the provisions for 
imports of gasoline by truck as previously proposed, except for the 
addition of certain provisions as discussed below. The provisions are 
contained in Sec.  80.101(i)(3).
    Two issues regarding this sampling and testing approach for truck 
importers have arisen since the publication of the NPRM. The first 
issue involves whether truck importers would be able to meet the 
Complex Model exhaust toxics and NOX emissions standards on 
a per-gallon basis. The Complex Model, which was required to be used 
for demonstrating compliance with the emissions standards beginning on 
January 1, 1998, calculates higher emissions for gasoline used in the 
winter due to the extra emissions that result from cold engine start-
up, as compared to emissions calculated for gasoline used in the 
summer. The annual average exhaust toxics and NOX standards 
were established by combining higher winter emissions with relatively 
lower summer emissions. Importers, therefore, are able to meet 
conventional gasoline standards on average by offsetting the higher 
emissions of winter gasoline with the lower emissions of summer 
gasoline. The issue for truck importers under the current guidance and 
NPRM, which require compliance on a per-gallon basis, is that gasoline 
produced during the winter may not meet the emissions standards on a 
per gallon basis. As a result, we modified the August 29, 1994 
guidance, which allows truck importers to fulfill the sampling and 
testing requirements based on test results from the truck loading 
terminal, to also allow truck importers of conventional gasoline to 
comply with the conventional gasoline standards on an annual average 
basis. See Letter to Gregory M. Scott, Society of Independent Gasoline 
Marketers of America, from Steven A. Herman, dated January 2, 1998.
    Our experience since 1998 has indicated that, under this approach, 
the quality of gasoline imported by truck meets the anti-dumping 
standards without environmental detriment, and that this approach is 
necessary for truck importers to comply with the Complex Model 
standards. As a result, today's action proposes to include a provision 
in Sec.  80.101(i)(3) which would allow truck importers of conventional 
gasoline who use the modified sampling and testing approach to comply 
with the conventional gasoline standards on an annual average basis.
    The second issue involves the requirement that truck importers who 
rely on test results from the foreign terminal must conduct quality 
assurance sampling and testing to verify the terminal's testing. Under 
the guidance and NPRM, the quality assurance testing may be conducted 
by either the importer or an independent laboratory. In some instances, 
however, every-batch sampling and testing is conducted at the terminal 
by an independent laboratory. In these situations, i.e., where an 
independent laboratory samples and tests each batch of gasoline at the 
truck-loading terminal supplying the importer's trucks, we believe that 
additional quality assurance sampling and testing by the importer or 
independent laboratory is redundant. As a result, we believe that a 
truck importer may satisfy the sampling and testing requirements, 
including the quality assurance requirement, using results from 
sampling and testing conducted by an independent laboratory at the 
truck-loading terminal, provided that the sampling and testing is 
conducted subsequent to each receipt of gasoline into the storage tank 
supplying the importer's truck, or immediately prior to each transfer 
of gasoline into the importer's truck. See Letter to Kevin J. Kyle, Pal 
Energy Corporation, from Charles N. Freed, dated April 23, 1998. 
Today's rule proposes to include provisions in Sec.  80.101(i)(3) to 
clarify this approach.
    We received comments on the original proposal for truck importers 
from three parties. One commenter said that the quality assurance 
requirement is particularly difficult for small importer companies and 
that such companies should be exempt from the quality assurance 
sampling and testing so long as independent laboratory tests are being 
performed by other larger import companies and the gasoline is pulled 
from the same terminal and the same tankage. While we do not believe 
that an exemption from the quality assurance sampling and testing is 
warranted, we believe that the provisions in today's rule would not 
prohibit a smaller truck importer from entering into an arrangement 
with a larger importer to use tests results obtained from an 
independent laboratory that conducts sampling and testing on the same 
terminal tankage for the larger importer.
    Two commenters recommended that EPA expand the provisions for truck 
importers to include rail tank cars. We proposed these provisions 
specifically for truck importers based on information we had received 
regarding the particular difficulties that truck importers have 
conducting every batch sampling and testing due to the small batch 
sizes transported in tank truck compartments. We believe that every 
batch sampling and testing does not

[[Page 74593]]

impose similar burdens on importers who import gasoline by rail tank 
cars and the NPRM did not seek notice and comment on these provisions 
being applied to such importers. As a result, today's rule does not 
propose to extend the provisions for tank truck importers to importers 
who import gasoline by rail.

B. Date for Submission of Attest Engagement Reports

    Section 80.105(c) requires that attest engagement reports involving 
conventional gasoline must be submitted by May 30 each year. However, 
Sec.  80.75(m) requires that attest engagement reports for RFG must be 
submitted by May 31 each year. This inconsistency in reporting 
deadlines was inadvertent when these sections were promulgated, and, as 
a result, we proposed to conform the dates by adopting May 31 as the 
deadline for submitting conventional gasoline attest reports. We 
received no comments on this change and it is again being proposed.

VI. Attest Engagements

    Under Sec. Sec.  80.65(h), 80.75(m), and 80.105(c) refiners and 
importers, and reformulated gasoline oxygenate blenders who achieve 
compliance on average, are required to commission an audit each year to 
review compliance with certain requirements of the reformulated 
gasoline and anti-dumping regulations. The audit requirements are 
specified in 40 CFR Part 80, Subpart F. Under these regulations, the 
auditor evaluates compliance with the specified requirements by 
completing audit procedures, called ``agreed upon procedures,'' that 
are included in the regulations for each requirement; i.e., the auditor 
``attests'' to the results of the agreed upon procedures. As a result, 
the overall audit is called an ``attest engagement.''
    In the NPRM, we proposed a number of changes to the attest 
engagement requirements. Certain of these proposed changes are included 
in today's rule and are discussed below.

A. Modification To Agree Upon Procedures in Sec. Sec.  80.128 and 
80.129, and Promulgation of Agreed Upon Procedures in Sec. Sec.  80.133 
and 80.134

    First, today's rule would amend the attest provisions in Subpart F 
to include new attest procedures. The agreed upon procedures for 
refiners and importers currently are specified in Sec.  80.128, and for 
oxygenate blenders in Sec.  80.129. Since promulgation of these 
procedures, we received comments from industry, and from auditors who 
conducted attest engagements under this program, that the agreed upon 
procedures in Sec. Sec.  80.128 and 80.129 should be modified in order 
to be more efficient. A group of auditors working in this area convened 
under the auspices of the American Institute of Certified Public 
Accountants (AICPA) to develop new attest procedures. This group 
submitted modified attest procedures to EPA in January 1996, and asked 
EPA to approve these procedures for use. On March 15, 1996, by letter 
to Ian A. MacKay, AICPA, EPA approved use of the attest procedures 
AICPA submitted, with certain modifications, under the authority of 
Sec.  80.128. In the NPRM, EPA proposed to amend the attest provisions 
in Subpart F to include these modified attest procedures. Today's rule 
re-proposes these procedures. The modified attest procedures for 
refiners and importers are contained in Sec.  80.133. The modified 
attest procedures for oxygenate blenders are contained in Sec.  80.134.
    The modified attest procedures do not differ significantly in 
substance from the procedures in Sec. Sec.  80.128 and 80.129. The 
principal difference between the modified attest procedures and the 
procedures in Sec. Sec.  80.128 and 80.129 is that the modified 
procedures include criteria for identifying when certain attest 
procedures, or categories of attest procedures, are unnecessary for a 
particular attest engagement. These modified attest procedures have 
been used successfully by numerous auditors for attest engagements 
since the 1995 reporting period.
    The modified attest procedures submitted by AICPA included certain 
terms not included in the original procedures. Today's rule proposes 
definitions for certain of these terms which were previously proposed. 
These definitions do not change the substance of the original 
procedures.
    We received several comments on the modified attest provisions. One 
commenter said that Sec.  80.133 lumps importers with refiners even 
though the items noted in the proposed language do not always apply to 
importers. The commenter recommends that importer procedures be 
separately defined and should consider the logistical aspects of 
terminal operation. Another commenter indicated that the attest 
provisions are inappropriate in situations where an importer brings 
GTAB into a terminal used by other refiner/importers.
    We understand that importers, including importer-refiners who blend 
GTAB, may use different tanks at different times, and as a result, 
inventory reconciliation cannot always be done in the same way it is 
done by crude oil refiners with fixed tanks. Therefore, we believe that 
the inventory reconciliation for importers, including GTAB importer-
refiners, can be done with other data, such as Customs records and 
other commercial documents, if full inventory reconciliation is not 
available due to non-continuous use of tanks.
    One commenter said that the results in Sec.  80.133(h)(3) will not 
agree due to test variances and oxygenate purity. The commenter 
recommended that EPA allow the acceptable ranges at Sec.  80.65(e) for 
this procedure and also to fulfill the requirements at Sec.  
80.133(h)(4)(ii)(B). We agree with the comment and are proposing to add 
a provision to allow the acceptable ranges set forth in the chart at 
Sec.  80.65(e).
    In addition, the commenter recommended that EPA provide an 
acceptable range for total weight percent oxygen to fulfill the 
requirements under Sec.  80.133(h)(4)(i), since an oxygenate weight 
percent of exactly 2.0 would not be likely due to the variables 
associated with the laboratory testing, ethanol purity and specific 
gravities. This provision, however, requires the attest auditor to 
compare only records relating to RBOB for which the refiner designated 
a specific type and amount of oxygenate to be blended by the oxygenate 
blender. The auditor must agree the refiner's oversight test results of 
the type of oxygenate used and the oxygenate content to the 
instructions for type and amount of oxygenate designated on the product 
transfer documents for the RBOB. The results must be within the 
acceptable range for the oxygenate given in Sec.  80.65(e)(2)(i). This 
provision does not require the auditor to compare results of oxygenate 
weight percent testing. A range for total weight percent oxygen, 
therefore, is unnecessary and irrelevant to the attest requirements 
under Sec.  80.133(h)(4)(i). Today's rule would modify the proposed 
regulatory language to clarify this requirement.
    We also proposed that the original attest procedures in Sec. Sec.  
80.128 and 80.129 would continue to be available as alternatives to the 
proposed attest procedures prior to the 1998 reporting period, and that 
the attest procedures in Sec. Sec.  80.133 and 80.134 would be required 
for subsequent reporting periods. We proposed to phase out the original 
attest procedures because we believed the modified attest procedures 
are superior and ultimately should be used for all attest engagements. 
In addition, we believed that oversight of the attest requirement, 
including reviews of attest reports, would be more efficient if all 
attest engagements were based on the same agreed upon procedures. We

[[Page 74594]]

proposed that during the period when both the original and the modified 
attest procedures are available, parties would be required to use 
either the original attest procedures for refiners and importers under 
Sec.  80.128 in its entirety, or the modified attest procedures for 
refiners and importers under Sec.  80.133 in its entirety. A party 
would not be allowed to use a mixture of attest procedures from Sec.  
80.128 and Sec.  80.133. Similarly, an oxygenate blender would be 
required to use the attest procedures in Sec.  80.129 or in Sec.  
80.134, and could not mix attest procedures from both sections. The 
reason for this constraint is that the different attest procedure 
sections contain different requirements that are organized differently, 
and, at least in part, the logic of the sections would be lost if these 
sections are not completed in their entirety.
    We received no negative comments on the proposal to phase out the 
old attest procedures. We continue to believe it is appropriate to 
phase out the original procedures. As a result, today's rule proposes 
to allow use of the attest procedures at Sec. Sec.  80.128 and 80.129 
as alternatives to the procedures at Sec. Sec.  80.133 and 80.134 
through the attest for the 2005 reporting period. Beginning with the 
attest engagements for the 2006 reporting period, only the attest 
procedures at Sec. Sec.  80.133 and 80.134 may be used.
    Section 80.125 contains the general requirement for attest audits. 
Today's rule again proposes modifications to Sec.  80.125, which would 
require use of the new attest procedures in Sec. Sec.  80.133 and 
80.134, and allow the use of Sec. Sec.  80.128 and 80.129 as 
alternatives until 2006.

B. Attest Procedures for GTAB, Previously Certified Gasoline (PCG), 
Truck Importers and Butane Blenders

    As discussed above, today's rule would finalize procedures by which 
importers may treat imported gasoline as blendstock (GTAB) (Sec.  
80.83), modified sampling and testing procedures for importers who 
import conventional gasoline by truck (Sec.  80.101(i)(3)), and 
procedures for butane blenders (Sec.  80.101(i)(4)). As a result, we 
are also proposing attest procedures that would apply in the case of 
parties who utilize these options. These attest procedures follow the 
general model of the attest procedures included in Sec. Sec.  80.128, 
80.129, 80.133 and 80.134.\11\
---------------------------------------------------------------------------

    \11\ On December 28, 2001, we finalized procedures for using 
previously certified gasoline (PCG), and related attest procedures 
for PCG. 66 FR 67098. These attest procedures currently are 
contained in Sec.  80.131. Today's rule renumbers these PCG attest 
procedures in Sec.  80.131 and adds the attest provisions for GTAB, 
truck importers and butane blenders. The substance of the attest 
provisions for PCG is unchanged.
---------------------------------------------------------------------------

    One commenter said that inventory accounting records usually 
distinguish only between conventional gasoline and RFG, and do not 
distinguish between imports and domestic receipts or GTAB, unfinished 
gasoline, etc. As a result, these records cannot be used as an 
independent verification of the total import volume, total GTAB, etc. 
The commenter recommended that EPA allow the use of other documents to 
reconcile under Sec.  80.133(a)(1). This commenter also recommended 
that EPA add ``or tank containing blendstock'' to Sec.  
80.131(a)(3)(iii), since the refiner/importer may discharge GTAB to a 
blending tank containing blendstocks. We agree with the comments and 
have proposed to modify Sec.  80.131(a)(1) of the GTAB attest section 
to allow the use of alternative documents to agree the volumes if the 
yield accounting documents are not sufficient. We have also proposed to 
modify Sec.  80.131(a)(3)(iii) to include the phrase ``or tank 
containing blendstock.'' In addition, today's rule would add a 
provision to the attest requirements for PCG which parallels Sec.  
80.131(a)(1), including the change discussed above. This provision, 
which was proposed and received no negative comments, was inadvertently 
omitted from attest requirements in the final PCG rule.
    Today's rule also again proposes a provision in Sec.  80.125 which 
reflects the requirement for GTAB attest engagements, with a 
modification which adds the requirement for attest engagements for 
truck importers, PCG and butane blenders.

VII. Public Participation

    We solicited comments on the need to take the actions proposed in 
the July 11, 1997 NPRM, including the actions in today's proposal. We 
reviewed and considered all written comments on these changes to the 
RFG and conventional gasoline regulations. All comments received by EPA 
are located in the EPA Air Docket, Docket A-97-03 (See ADDRESSES).

VIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

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

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document prepared by EPA has been 
assigned EPA ICR number 1591.16.
    This proposed rule would make certain revisions to the RFG and 
conventional gasoline regulations which provide regulated parties with 
additional flexibility to comply with the regulations. Some of the 
revisions in today's action would lessen the information collection 
burdens on certain regulated parties; for example, the rule reduces the 
sampling and testing requirements for importers who import gasoline by 
truck. Most of the revisions in today's action would not result in any 
additional reporting or recordkeeping burdens. Some of the provisions 
that provide additional flexibility for regulated parties necessitate 
modest recordkeeping and reporting requirements.
    The estimated total annual hour burden on industry for this 
rulemaking is approximately 1398 hours. This estimate is based on an 
average of 1 hour per respondent x 40 respondents for GTAB 
recordkeeping and reporting, 33.40 hours per respondent x 40 
respondents for GTAB sampling and testing, and 1.08 hours per 
respondent x 20 respondents for butane blending recordkeeping and 
reporting. The

[[Page 74595]]

estimated total annual cost burden on industry for this rulemaking is 
$83,860. This estimate is based on an annual cost of $60 per respondent 
x 40 respondents for GTAB recordkeeping and reporting, $2,004 per 
respondent x 40 respondents for GTAB sampling and testing, and $65 per 
respondent x 20 respondents for butane blending recordkeeping and 
reporting.
    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 in 40 CFR are listed in 40 CFR part 9.
    To comment on the Agency's need for this information, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing respondent burden, including the use of automated collection 
techniques, EPA has established a public docket for this rule, which 
includes this ICR, under Docket ID number OAR-2003-0019. Submit any 
comments related to the ICR for this proposed rule to EPA and OMB. See 
ADDRESSES section at the beginning of this notice for where to submit 
comments to EPA. Send comments to OMB at the Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 17th Street, 
NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is 
required to make a decision concerning the ICR between 30 and 60 days 
after December 15, 2005, a comment to OMB is best assured of having its 
full effect if OMB receives it by January 17, 2006. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.

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 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. This 
proposed rule involves technical corrections, clarifications and 
codification of certain Agency guidance intended to promote successful 
implementation of the requirements for reformulated and conventional 
gasoline and does not include additional regulatory requirements on 
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.

D. Unfunded Mandates Reform Act

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

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 rule proposes certain 
technical and minor changes to the RFG rule, clarifies provisions, and 
codifies certain guidance previously issued by the Agency. Thus, 
Executive Order 13132 does not apply to this proposed rule.

[[Page 74596]]

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.'' This proposed rule does not 
have tribal implications as specified in Executive Order 13175. This 
rule applies to gasoline refiners, importers, blenders and marketers. 
Today's rule proposes to modify the Federal RFG and conventional 
gasoline requirements, 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 and Safety Risks

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

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

    This proposed 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, 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 action does not involve any new technical standards. 
Therefore, EPA did not consider the use of any voluntary consensus 
standards.

J. 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(a).

IX. 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 
conventional gasoline and requires EPA to promulgate regulations 
establishing these requirements. Additional support for the procedural 
aspects of the fuels controls in today's rule comes from sections 
114(a) and 301(a) of the CAA. Today's action is a rulemaking subject to 
the requirements of CAA section 307(d).

List of Subjects in 40 CFR Part 80

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

    Dated: December 2, 2005.
Stephen L. Johnson,
Administrator.
[FR Doc. 05-23806 Filed 12-14-05; 8:45 am]

BILLING CODE 6560-50-P
