

[Federal Register: April 3, 2006 (Volume 71, Number 63)]
[Proposed Rules]               
[Page 16535-16541]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03ap06-24]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[EPA-OAR-2005-0048; FRL-8051-9]
RIN 2060-AM42

 
Regulation of Fuel and Fuel Additives: Gasoline and Diesel Fuel 
Test Methods

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Proposed Rulemaking

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
allow refiners and laboratories to use more current and improved fuel 
testing procedures for five American Society for Testing and Materials 
(ASTM) analytical test methods. Once these test method changes are 
adopted, they will supersede the corresponding earlier versions of 
these test methods in EPA's motor vehicle fuel regulations. EPA is also 
proposing to take action to change the designated test method for 
sulfur in butane. EPA is proposing to replace an approved ASTM 
Committee D.16 sulfur test method with the ASTM Committee D.02 version 
of the test method for gasoline and diesel fuel, and proposing to allow 
an additional ASTM test method for sulfur in gasoline. EPA is also 
proposing to remove a September 1, 2004 sunset provision for two 
alternative ASTM test methods for gasoline. Finally, EPA is proposing 
to add a new section to the motor vehicle fuels regulations. This new 
section would reference the rounding method in an ASTM standard 
practice as the procedure to follow for rounding a test result when 
determining compliance with EPA's motor vehicle fuels standards listed 
in the regulations. In the Rules and Regulations section of this 
Federal Register, we are taking direct final rule action on the 
proposed amendments because we view these amendments as 
noncontroversial and anticipate no adverse comments. We have explained 
our reasons for the amendments in the preamble to the direct final 
rule.

DATES: Comments or a request for a public hearing must be received on 
or before May 3, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2005-0048, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 

instructions for submitting comments.
     E-mail: a-and-r-Docket@epa.gov
     Fax: (202) 566-1741
     Mail: ``EPA-HQ-OAR-2005-0048, Environmental Protection 
Agency, Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 
20460.''
     Hand Delivery: EPA/DC, EPA West, Room B102, 1301 
Constitution Ave., NW., Washington, DC. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2005-0048. EPA's policy is that all comments will be included in the 
public docket without change and may be made available online at http://www.regulations.gov
, including any personal information provided, 

unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an ``Aanonymous 

access'' system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through http://www.regulations.gov
 your e-mail address will be automatically captured 

and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. For additional instructions on submitting comments, go to Unit 
1.B of the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov
 index. Although listed in the index, some 

information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Docket, EPA/

DC, EPA West,

[[Page 16536]]

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 holidays. The Public Reading Room is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the Air Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Joe Sopata, Chemist, Transportation 
and Regional Programs Division, Office of Transportation and Air 
Quality (6406J), Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460; telephone number: (202) 343-9034; fax 
number: (202) 343-2801; e-mail address: sopata.joe@epa.gov.

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

I. General Information
    A. Does This Action Apply to Me?
    B. What Should I Consider as I Prepare My Comments for EPA?
II. Proposed Rule Changes
    A. Updating ASTM Test Methods to Their Most Recent Version
    B. Replacing ASTM D 6428-99 With ASTM D 6920-03
    C. Test Method for Sulfur in Butane
    D. Additional Alternative Test Method for Sulfur in Gasoline
    E. Removal of Sunset Provision for Alternative Test Methods
    F. Using Rounding When Determining Conformance With a Fuels 
Standard
III. Administrative Requirements
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
VI. Statutory Provisions and Legal Authority

I. General Information

A. Does This Action Apply to Me?

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

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

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

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

II. Proposed Rule Changes

A. Updating ASTM Test Methods to Their Most Recent Version

    Refiners, importers and oxygenate blenders producing gasoline and 
diesel motor vehicle fuel are required to test reformulated gasoline 
(RFG), conventional gasoline (CG) and diesel fuel for various fuel 
parameters including sulfur, olefins, aromatics, and oxygenate content. 
American Society for Testing and Materials (ASTM) test method D2622 is 
currently a designated test method for measuring sulfur \1\ in 
gasoline. ASTM test method D 3120 and ASTM D 5453 are currently 
alternative test methods for measuring sulfur \2\ \3\ in gasoline. ASTM 
test method D 1319 is currently a designated test method for measuring 
olefins \4\ in gasoline and aromatics \5\ in diesel fuel and is also 
allowed as an alternative test method for measuring aromatics \6\ in 
gasoline.

[[Page 16537]]

ASTM test method D 4815 is currently an alternative test method for 
measuring oxygenate content \7\ in gasoline.
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    \1\ 40 CFR 80.46(a)(1).
    \2\ 40 CFR 80.46(a)(3)(iii).
    \3\ 40 CFR 80.46(a)(3)(i).
    \4\ 40 CFR 80.46(b).
    \5\ 40 CFR 80.2(z).
    \6\ 40 CFR 80.46(f)(3).
    \7\ 40 CFR 80.46(g)(2).
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    The American Petroleum Institute (API) recommended in a letter to 
EPA that EPA update the ASTM test methods mentioned above to their most 
recent ASTM version.\8\ API asked EPA to refer to the 2003 year version 
of ASTM test method D 2622 in all references involving gasoline and 
diesel fuels because this version of ASTM D 2622 includes an updated 
precision statement as determined in a recent ASTM sulfur round robin. 
API also recommended EPA adopt in the motor vehicle fuels regulations 
the 2003a version of ASTM 3120, the 2003a version of ASTM D 5453, the 
2003 version of ASTM D1319, and the 2003 year version of ASTM D 4815.
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    \8\ See Air Docket  EPA-HQ-OAR-2005-0048-0002.
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    Table 1 lists the designated analytical test methods and 
alternative analytical test methods which are being proposed to be 
updated for parameters measured under RFG, CG, and diesel fuels program 
in today's action. The Agency has reviewed these updated ASTM test 
methods and we are in agreement with the revisions contained in them 
which will result in improvements in the utilization of these test 
methods for the regulated industry. We believe that the revisions in 
the test method changes in today's proposed action are not significant 
changes that would cause a user of an older version of the same method 
to incur significant costs. All of the revisions were deemed necessary 
by ASTM so that improvements in the test method's procedures would 
ensure better operation for the user of the test method. Thus, EPA is 
proposing today to update the regulations for the following ASTM test 
methods: (1) ASTM D 2622-03, the designated test method for measuring 
sulfur in RFG, and CG, (2) ASTM D 3120-03a and ASTM D 5453-03a 
alternative test methods for sulfur in gasoline, (3) ASTM D 1319-03, 
designated test method for measuring olefins in gasoline and aromatics 
in diesel fuel, as well as the alternative test method for measuring 
aromatics in gasoline, and (4) ASTM 4815-03, alternative test method 
for measuring oxygenate content in gasoline.

 Table 1.--Designated and Alternative ASTM Analytical Test Methods Under
             RFG, CG and Diesel Motor Vehicle Fuel Programs
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             Fuel parameter                ASTM analytical test method
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Sulfur (gasoline)......................  ASTM D 2622-03, entitled
                                          ``Standard Test Method for
                                          Sulfur in Petroleum Products
                                          by Wavelength Dispersive X-Ray
                                          Fluorescence Spectrometry''.
Sulfur (gasoline)......................  ASTM D 5453-03a, entitled,
                                          ``Standard Test Method for
                                          Determination of Total Sulfur
                                          in Light Hydrocarbons, Motor
                                          Fuels and Oils by Ultraviolet
                                          Fluorescence''.
Sulfur (gasoline)......................  ASTM D 3120-03a, entitled,
                                          ``Standard Test Method for
                                          Trace Quantities of Sulfur in
                                          Light Petroleum Hydrocarbons
                                          by Oxidative
                                          Microcoulometry''.
Oxygen content (gasoline)..............  ASTM D 4815-03, entitled
                                          ``Standard Test Method for
                                          Determination of MTBE, ETBE,
                                          TAME, DIPE, tertiary-Amyl
                                          Alcohol and C1 to C4 Alcohols
                                          in Gasoline by Gas
                                          Chromatography''.
Olefins (gasoline).....................  ASTM D 1319-03, entitled
                                          ``Standard Test Method for
                                          Hydrocarbon Types in Liquid
                                          Petroleum Products by
                                          Fluorescent Indicator
                                          Adsorption''.
Aromatics (gasoline and diesel)........  ASTM D 1319-03, entitled,
                                          ``Standard Test Method for
                                          Hydrocarbon Types in Liquid
                                          Petroleum Products by
                                          Fluorescent Indicator
                                          Absorption'', for diesel fuel,
                                          this method is the designated
                                          test method, for gasoline,
                                          this method is an alternative
                                          test method and if used as an
                                          alternative method, its
                                          results, must be correlated to
                                          ASTM D 5769-98.
------------------------------------------------------------------------

B. Replacing ASTM D 6428-99 With ASTM D 6920-03

    Refiners, importers and oxygenate blenders producing gasoline and 
diesel motor vehicle fuels are required to test RFG, CG and diesel fuel 
for various fuel parameters including sulfur content. ASTM test method 
D 6428-99 is currently the designated test method for measuring the 
sulfur content of on-highway diesel fuel at the 15 ppm level\9\, an 
alternative test method for measuring the sulfur content on-highway 
diesel fuel at the 500 ppm level\10\, and an alternative test method 
for measuring the sulfur content of gasoline.\11\
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    \9\ 40 CFR 80.580(a)(2).
    \10\ 40 CFR 80.580(a)(3)(ii).
    \11\ 40 CFR 80.46(a)(3)(ii).
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    ASTM D 6428-99 was developed by the ASTM D.16 Committee for 
Aromatic Hydrocarbons and Related Chemicals. ASTM D 6428-99 does not 
contain a precision statement in the test method for its use with 
gasoline and diesel fuel. ASTM D.02, the Committee for Petroleum 
Products and Lubricants, recently determined the precision for this 
method with respect to gasoline and diesel fuels, and named the new 
method containing the precision statement ASTM D 6920-03. Since ASTM D 
6920-03 contains precision statements for the method as it applies to 
gasoline and diesel, API requested that EPA refer to ASTM D 6920-03 in 
all references with respect to gasoline and diesel fuel involving test 
method ASTM D 6428-99.\12\ The Agency has evaluated API's request and 
agrees that since ASTM D 6920-03 contains precision estimates for use 
of the method with gasoline and diesel fuels, ASTM D 6920-03 is more 
practical for use with our gasoline and diesel fuels programs compared 
to ASTM D 6428-99. Thus, EPA is proposing to change the regulations by 
replacing ASTM D 6428-99 with ASTM D 6920-03 for the alternative test 
method for measuring the sulfur content of diesel fuel at the 500 ppm 
level, and the alternative test method for measuring the sulfur content 
of gasoline.
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    \12\ See Air Docket EPA-HQ-OAR-2005-0048-0002.

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[[Page 16538]]

    The regulations state that until December 27, 2004, for 15 ppm 
diesel fuel, regulated parties may use ASTM D 6428-99, the designated 
test method, or ASTM D 5453-03a or ASTM D 3120-03a, two alternative 
test methods, provided the alternative test method results are 
correlated to the designated test method. After December 27, 2004, 
regulated parties measuring motor vehicle diesel fuel and fuel 
additives subject to the 15 ppm diesel sulfur standard must qualify 
their test method on a site specific basis under the precision and 
accuracy criteria specified in the regulations at 40 CFR 80.584. Once 
they have completed this testing, they must submit their precision and 
accuracy results to the Agency for approval to use their test method as 
specified in the regulations at 40 CFR 80.585. Thus, after December 27, 
2004, regulated parties may only use test methods that have been 
qualified on a site specific basis that meet the accuracy and precision 
criteria specified in the regulations at 40 CFR 80.584 and that have 
been approved under the process specified in the regulations at 40 CFR 
80.585. The December 27, 2004, date, provided regulated parties 180 
days of lead time to qualify their test methods for use at each site 
for measuring 15 ppm sulfur diesel fuel. Since today's proposed rule 
will be effective after December 27, 2004, the Agency is proposing to 
revise the regulations by removing the now irrelevant designated and 
alternative test method paragraphs that allow the use of ASTM D 6428-
99, ASTM D 5453-03a, and ASTM D 3120-03a for 15 ppm sulfur diesel fuel 
(i.e., 40 CFR 80.580(b)(1) and 40 CFR 80.580(c)(1)). The regulations 
will then only reflect the present situation that all test methods must 
qualify under the precision and accuracy criteria in the regulations.

C. Test Method for Sulfur in Butane

    Certain parties blend butane into gasoline which has already been 
manufactured and certified under EPA regulations. Effective January 1, 
2004, the parties that blend butane into already made gasoline were 
required to test the butane for sulfur content.\13\ Currently, ASTM D 
3246-96 is the designated test method for measuring the sulfur content 
of butane.
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    \13\ 40 CFR 80.46(a)(2).
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    Recently, API said in a letter to EPA that ASTM D 6667 is more 
readily available, more reliable, and a better test method than ASTM D 
3246.\14\ Thus, API requested EPA to change the designated test method 
for measuring sulfur in butane to ASTM D 6667-01, and to continue to 
allow ASTM D 3246-96 as an alternative test method. EPA has evaluated 
API's request on this test method issue and agrees. Thus, EPA is 
proposing to change the regulations making ASTM D 6667-01 the 
designated test method for measuring the sulfur content of butane. 
Additionally, EPA proposes to continue to allow ASTM test method D 
3246-96 as an alternative test method, provided its test results are 
correlated to ASTM D 6667-01, the new designated test method for sulfur 
in butane.
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    \14\ See Air Docket EPA-HQ-QAR-2005-0048-0002.
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    In the future, EPA intends to establish a performance-based test 
method approach (PBTM) rule which would provide criteria for the 
qualification of alternative test methods. Once a PBTM rule has been 
established by the Agency, ASTM D 3246-96 may qualify under the PBTM 
rule's criteria as an alternative test method.

D. Additional Alternative Test Method for Sulfur in Gasoline

    Refiners, importers and oxygenate blenders producing gasoline and 
diesel motor vehicle fuel are required to test RFG, CG and diesel fuel 
for various fuel parameters including sulfur. Test methods for 
determining sulfur content are specified in the regulation.
    Recently, X-Ray Optical Systems, Incorporated (XOS[supreg]) 
requested in a letter to EPA that ASTM D 7039-04 be designated by EPA 
as an alternative test method in the regulations for sulfur in 
gasoline.\15\ EPA has evaluated XOS[supreg]'s request on this test 
method issue and agrees. Thus, EPA is proposing to allow ASTM D 7039-04 
as an alternative test method in the regulations for sulfur in 
gasoline, provided that its results are correlated to ASTM D 2622. The 
allowance of this additional alternative test method for sulfur in 
gasoline will provide the regulated community additional flexibility in 
meeting their testing requirements.
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    \15\ See Air Docket EPA-HQ-OAR-2005-0048-0003.
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    As stated above, EPA plans to establish a PBTM rule for the 
qualification of alternative test methods. Once this PBTM rule is 
effective, ASTM D 7039 may qualify as an alternative test method under 
the PBTM's criteria.

E. Removal of Sunset Provision for Alternative Test Methods

    As explained previously, ASTM D 1319 is an alternative test method 
for measuring total aromatics in gasoline, and ASTM D 4815 is an 
alternative test method for measuring oxygenates in gasoline. Both of 
these alternative methods have sunset provisions under which their use 
as an alternative test method expired on September 1, 2004. On June 16, 
2004, EPA issued an enforcement discretion letter allowing the use of 
these two alternative test methods until December 31, 2005, or until 
such time that a rulemaking was promulgated by the Agency to continue 
to allow the use of these two alternative test methods, whichever is 
earlier.\16\
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    \16\ See Air Docket EPA-HQ-QAR-2005-0048-0004.
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    Recently, API requested in a letter that the sunset provisions for 
these two alternative test methods be removed until a PBTM approach for 
qualifying analytical test methods is promulgated by EPA.\17\ Since EPA 
believes the use of these two alternative test methods has been 
effective, we are proposing to continue to allow their use until the 
PBTM rule mentioned previously is promulgated by the Agency. Once a 
PBTM rule has been established, these two alternative test methods may 
qualify under the PBTM rule's criteria. The proposed rule change that 
is the subject of this notice would remove the current sunset provision 
of September 1, 2004, for both ASTM D 1319 and ASTM D 4815 and allow 
their use as alternative test methods until a PBTM rule is established 
by the Agency.
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    \17\ See Air Docket EPA-HQ-OAR-2005-0048-0005.
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F. Using Rounding When Determining Conformance With a Fuels Standard

    Refiners, importers and oxygenate blenders producing gasoline and 
diesel motor vehicle fuel are required to test RFG, CG and diesel fuel 
for various fuel parameters to determine compliance with EPA's motor 
vehicle fuels standards. These fuels standards are listed in the 
regulations at 40 CFR part 80.
    Each of EPA's motor vehicle fuel standards indicates the number of 
significant digits which should be present in an observed measurement 
number to be compared to the standard for the purpose of demonstrating 
compliance. The appropriate number of significant digits to determine 
compliance with a fuel standard regulation or to report on a reporting 
form should be determined from the method outlined in section 3.1 of 
the ASTM standard practice E 29-02[isin]1, entitled, 
``Standard Practice for Using Significant Digits in Test Data to 
Determine Conformance with Specifications''. Regulated parties 
measuring a fuel parameter to determine compliance with a fuel standard 
must

[[Page 16539]]

report their test result out to the number of significant digits 
specified in the applicable fuel standard. However, a test method used 
to measure a certain fuel parameter may provide more significant digits 
in its output than specified in the standard. When this situation 
occurs, the regulated party should round their test result to determine 
if they are in compliance with the standard. The American Society for 
Testing and Materials (ASTM) has developed the standard practice, ASTM 
E 29-02[isin]1, for this situation. The rounding method 
[isin]1 \18\ in this standard practice provides a procedure 
for rounding a test result to the number of significant digits 
specified in some standard. After using the rounding method specified 
in ASTM E 29-02[isin]1, the regulated party may compare the 
resulting number to the standard to determine whether they are in 
compliance.
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    \18\ The Rounding Method in ASTM E 29-02[isin]1 
applies where it is the intent that a limited number of digits in an 
observed value or calculated value are to be considered significant 
for purposes of determining conformance to the number of figures 
listed in a fuels standard. The rounded value should be compared to 
the specified limit in the fuels standard, and conformance or non-
conformance with the specification in the fuels standard should be 
based on this comparison.
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    The Agency has reviewed the rounding method referenced in the 
standard practice ASTM E 29-02[isin]1, and we are in 
agreement with its use for this purpose. The Agency believes 
referencing the Arounding'' method (as contrasted with the Aabsolute'' 
method) in this ASTM standard practice in EPA's regulations will help 
to avoid confusion in the fuels distribution system. Therefore, EPA is 
proposing to add a new section to the motor vehicle fuels regulations 
at 40 CFR 80.9. This new section would reference the rounding method in 
ASTM E 29-02[isin]1. The rounding method is the procedure to 
follow for rounding a test result when determining compliance with 
EPA's motor vehicle fuels standards listed at 40 CFR Part 80.
    In the ``Final Rules'' section of today's Federal Register, we are 
publishing a direct final rule that matches the substance of this 
proposed rule. If the Agency receives adverse comment or a request for 
public hearing by May 3, 2006, we will withdraw the direct final rule 
by publishing a timely withdrawal notice in the Federal Register. If 
the Agency receives no adverse comment or a request for public hearing 
by May 3, 2006, these test method changes will be effective sixty (60) 
days after publication of the final rule in the Federal Register. We 
are confident that sixty(60) days is sufficient lead time for industry 
to become familiar and implement these ASTM test methods for the 
applications mentioned above.

III. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.''
    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

    This proposed rule does not impose any new information collection 
burden. However, the Office of Management and Budget (OMB), under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., has 
approved the information collection requirements contained in the final 
RFG and anti-dumping rulemaking and gasoline sulfur control rulemaking, 
and has assigned OMB control number 2060-0277, EPA ICR number 1591.14. 
OMB, under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq., has also approved the information collection requirements 
contained in the final Tax Exempt (Dyed) Highway Diesel Fuel 
rulemaking, and has assigned OMB control number 2060-0308, EPA ICR 
number 1718.03. Copies of the OMB approved Information Collection 
Requests (ICR) may be obtained from Susan Auby, Collection Strategies 
Division; U.S. Environmental Protection Agency (2822T); 1200 
Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-
1672.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administrations' regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action would not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory

[[Page 16540]]

alternatives ``which minimize any significant economic impact of the 
rule on small entities.'' 5 U.S.C. 603 and 604. Thus, an agency may 
conclude that a rule will not have a significant economic impact on a 
substantial number of small entities if the rule relieves regulatory 
burden, or otherwise has a positive economic effect on all of the small 
entities subject to the rule.
    All of the test method updates in today's proposed action will 
improve the performance and/or utilization by industry of the test 
methods. For the two alternative test methods, ASTM D 1319 and ASTM D 
4815, today's action will continue to provide flexibility to the 
regulated community. The allowance of ASTM D 7039-04 will provide 
additional flexibility to the regulated community in meeting sulfur in 
gasoline testing requirements. Referencing the rounding method in ASTM 
E 29-02[isin]\1\ provides consistent guidance for the regulated 
community when determining whether a test result is in conformance with 
our motor vehicle fuels standards. Finally, for the measurement of 
sulfur in butane, today's action will provide industry with a more 
reliable, more readily available and better test method. We have 
therefore concluded that today's proposed rule will relieve regulatory 
burden for all small entities. We continue to be interested in the 
potential impacts of this 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.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the states, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It would 
not have substantial direct effects on the states, on the relationship 
between the national government and the states, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. All of the test method updates 
in today's action will improve the performance and/or utilization by 
industry of the test methods. For the two alternative test methods, 
ASTM D 1319 and ASTM D 4815, today's action will continue to provide 
flexibility to the regulated community. The allowance of ASTM D 7039-04 
will provide additional flexibility to the regulated community in 
meeting sulfur in gasoline testing requirements. Referencing the 
rounding method in ASTM E 29-[isin]\1\ provides consistent guidance for 
the regulated community when determining whether a test result is in 
conformance with our motor vehicle fuels standards. Finally, for the 
measurement of sulfur in butane, today's action will provide industry 
with a more reliable, more readily available and better test method. 
Thus, Executive Order 13132 does not apply to this proposed rule.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' are defined in the Executive Order to include 
regulations that have ``substantial direct effects on one or more 
Indian tribes, on the relationship between the Federal government and 
the Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
This proposed rule applies to gasoline refiners, blenders and importers 
that supply gasoline or diesel fuel. All of the test method updates in 
today's action will improve the performance and/or utilization by 
industry of the test methods. The allowance of ASTM D 7039-04 will 
provide additional flexibility to the regulated community in meeting 
sulfur in gasoline testing requirements. For the two alternative test 
methods, ASTM D 1319 and ASTM D 4815, today's action will continue to 
provide flexibility to the regulated community. Referencing the 
rounding method in ASTM E 29-02[isin]1 provides consistent 
guidance for the regulated community when determining whether a test 
result is in conformance with our motor vehicle fuels standards. 
Finally, for the measurement of sulfur in butane, today's action will 
provide industry with a more reliable, more readily available and 
better test method. Thus, Executive Order 13175 does not apply to this 
proposed rule.

[[Page 16541]]

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 that 
may disproportionately affect children.

H. Executive Order 13211: Actions 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 Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
proposed rulemaking involves technical standards. EPA proposes to use 
ASTM standards as described in Units II.A, II.B, II.C, II.D and II.F of 
the SUPPLEMENTARY INFORMATION section of this document. All technical 
standards included in today's proposed rule are standards developed by 
ASTM, a voluntary consensus standards body, and thus raises no issues 
under the NTTAA. EPA welcomes comments on this aspect of the proposed 
rulemaking and, specifically, invites the public to identify 
potentially-applicable voluntary consensus standards and to explain why 
such standards should be used in this regulation.

IV. Statutory Provisions and Legal Authority

    Statutory authority for today's proposed rule comes from sections 
211(c), 211(i) and 211(k) of the CAA (42 U.S.C. 7545(c) and (k)). 
Section 211(c) and 211(i) allows EPA to regulate fuels that contribute 
to air pollution which endangers public health or welfare, or which 
impairs emission control equipment. Section 211(k) prescribes 
requirements for RFG and CG and requires EPA to promulgate regulations 
establishing these requirements. Additional support for the fuels 
controls in today's rule comes from sections 114(a) and 301(a) of the 
CAA.

List of Subjects in 40 CFR Part 80

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

    Dated: March 24, 2006.
Stephen L. Johnson,
Administrator.
[FR Doc. 06-3132 Filed 3-31-06; 8:45 am]

BILLING CODE 6560-50-P
