35310 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 80

[AMS-FRL–5528–5]

RIN 2060–AG06

Regulation of Fuels and Fuel

Additives: Certification Standards for

Deposti Control Gasoline Additives

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: This action establishes a

certification program for detergent

additives used to control the formation

of port fuel injector deposits (PFID) and

intake valve deposits (IVD) in gasoline

engines. In accordance with Clean Air

Act section 211(l), an interim detergent

program has been in effect since January

1, 1995, requiring the use of detergents

in virtually all gasoline used in the U.S.

This final rule contains standardized

test procedures and performance

standards to ensure that such detergent

gasoline will provide an effective level

of protection against PFID and IVD. The

regulations include a variety of

certification options and compliance

alternatives, affording cost-effective

flexibility to regulated parties.

The effective control of deposits in

gasoline engine and fuel supply systems

has been shown to reduce the emission

of nitrogen oxides, hydrocarbons, and

carbon monoxide in engine exhaust,

while enhancing fuel economy.

Accordingly, the intent of the detergent

certification program is to help achieve

the primary public health and

environmental protection goals of the

Clean Air Act.

DATES: Effective Date: This rule is

effective September 3, 1996.

The information collection

requirements in 40 CFR 80.157(f)(5),

80.160(b)(2), 80.164(b)(3), 80.170(f)(5),

and 80.173(b)(2) have not been

approved by the Office of Management

and Budget (OMB) and will not be

effective until OMB has approved them,

and EPA publishes a document

announcing their approval.

The incorporation by reference of

certain publications listed in the

regulations are approved by the Director

of the Federal Register as of September

3, 1996.

Compliance Dates: Compliance with

the requirements of the detergent

certification program is mandatory for

detergent manufacturers, detergent

blenders, and gasoline distributors on

July 1, 1997, and on August 1, 1997 for

gasoline retailers and wholesale

purchaser-consumers, and any other

party selling or transferring gasoline to

the ultimate consumer.

ADDRESSES: Materials relevant to this

final rule are contained in Public Docket

No. A–91–77 at the following address:

Air Docket Section (LE–131), room M–

1500, 401 M Street SW., Washington,

DC 20460; phone (202) 260–7548; fax

(202) 260–4000. The docket is open for

public inspection from 8:00 a.m. until

5:30 p.m., except on government

holidays. As provided in 40 CFR Part 2,

a reasonable fee may be charged for

copying docket materials. Electronic

copies of major documents associated

with this rulemaking are available from

the EPA internet site and via dial-up

modem on the Office of Air Quality

Planning and Standards (OAQPS)

Technology Transfer Network Bulletin

Board System (TTNBBS). Details on

how to access these sources are

included in Section X of this preamble.

FOR FURTHER INFORMATION CONTACT: For

information related to qualification of

detergent additives for use in complying

with gasoline detergency requirements

contact: Jeffrey A. Herzog, U.S. EPA

(FED), Fuels and Energy Division, 2565

Plymouth Road, Ann Arbor, MI 48105;

Telephone: (313) 668–4227, Fax: (313)

741–7869. For information related to the

registration of fuels and fuel additives

under 40 CFR Part 79 contact: James W.

Caldwell, U.S. EPA (6406J), Fuels and

Energy Division, 401 M Street SW.,

Washington, DC 20460; Telephone:

(202) 233–9303, Fax: (202) 233–9556.

For information related to enforcement

contact: Judith Lubow, U.S. EPA, Office

of Enforcement and Compliance

Assurance, Western Field Office, 12345

West Alameda Parkway Suite 214,

Lakewood, CO 80228; Telephone: (303)

969–6483, FAX: (303) 969–6490.

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially regulated by this

action are those involved with the

production, distribution, and sale of

gasoline and gasoline detergent

additives. Regulated categories and

entities include:

Category Examples of regulated entities

Industry ...................... Detergent manufacturers, Detergent transporters, Gasoline refiners and importers, Gasoline terminals, Detergent blenders, Gasoline truckers, and Gasoline retailers and wholesale purchaser-consumers.

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

types of entities that EPA is now aware

could potentially be regulated by this

action. Other types of entities not listed

in the table could also be regulated. To

determine whether your organization is

regulated by this action, you should

carefully examine the applicability

requirements in § 80.161(a), the

detergent certification requirements in

§ 80.161(b), the program controls and

prohibitions in § 80.168, and other

related program requirements in subpart

G, title 40, of the Code of Federal

Regulations (CFR). If you have any

questions regarding the applicability of

this action to a particular entity, consult

the persons listed in the preceding FOR

FURTHER INFORMATION CONTACT section.

Table of Contents

I. Background

A. Rulemaking History

B. Statutory Provisions and Legal

Authority

C. Overview of this Action

D. Applicability

E. Program Start-Up and Compliance Dates

II. Combustion Chamber Deposit Control

A. CCD Impacts on Vehicle Emissions

B. CCD Energy Impacts

C. CCD Interference

D. Unwashed Gum Levels and CCD

E. Other Potential Adverse Side Effects of

Detergent Overuse

III. Basic Information Requirements

A. Detergent Additive Information

Requirements

1. Compositional Data

2. Minimum Effective Concentration

3. Certification Letter

B. Information Requirements for Fuel

Manufacturers

IV. Certification Options

A. Background

B. Single-Tier Certification System

C. Geographic Certification Options

1. National Certification

2. PADD Certification

3. U.S. Territories

4. Certification Sub-Options

a. Nonoxygenated Gasoline Certification

Option

b. Oxygenate-Specific Certification Option

c. Premium Grade Certification Option

d. Reformulated Gasoline Certification

Option

5. Recertification Requirements

D. Fuel-specific Certification Option

1. General Description

2. Variants
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35311

1 EPA uses the term ‘‘detergent’’ to refer broadly

to the additives required to meet the deposit control

requirements established in this program. It is not

meant to specify a design standard or to limit the

kind of engine or fuel supply system deposits that

are, or would properly be, the subject of regulation

under sections 211(l) or 211(c).

3. Monitoring and Recertification

Requirements

V. CARB Certifications

A. Background

B. Applicability of CARB Equivalent

Certification

VI. Certification Test Fuels

A. National and PADD Certification Test

Fuels

1. Proposed Test Fuel Requirements

2. Final Test Fuel Requirements

a. Test Fuel Source and Screening

Requirements

b. Test Fuel Severity Factors

c. Number and Severity of Test Fuels

d. Other Issues

B. Fuel-Specific Certification Test Fuels

C. Summary of Test Fuel Requirements

D. Test Fuels for Leaded Gasoline

Certification

E. Measurement of Gasoline Fuel

Parameters

VII. Certification Tests and Performance

Requirements.

A. Certification Test Procedures

B. Deposit Control Test Standards

1. PFID-Control Test Standard

2. IVD-Control Test Standard

C. Alternate Performance Requirements for

Leaded Gasoline

D. Confirmatory Testing By EPA

VIII. Enforcement Provisions

A. Overview

1. Certification Conformity

2. Compliance with Volumetric Additive

Reconciliation (VAR) Requirements

3. Equipment Calibration

4. Product Transfer Documents (PTDs)

5. Liability and Defenses

6. Exemptions

B. Enforcement Aspects of the Certification

Program, Including Clarifications of, and

Changes to, the Interim Program

1. VAR Requirements

a. Automated Detergent Blender

Compliance Periods

b. VAR Formula Records per Detergent

Storage System

c. Brands and Grades of Gasoline on VAR

Records

d. Recording of Detergent LAC and Actual

Concentration

e. VAR Recording of Use-Restricted LACs

f. Diluted Detergent

g. VAR Recording of Gasoline Which is

Overadditized for the Anticipated

Addition of Ethanol or Other PRC

h. VAR Recording of Transfers of

Unadditized Gasoline

i. Supporting Documentation of VAR

Volumes for Hand-Blending Facilities

j. Electronic VAR Formula and Supporting

Records

k. Detergent Tank Transitioning

l. Automated Additization Equipment

Calibration

m. Detergent Blender Record Retention

2. Affirmative Defense and Liability Issues

a. Detergent Manufacturer Affirmative

Defense Modification

b. Extension of Liability for VAR Violations

c. Defense Against Liability Where More

Than One Party May Be Liable for VAR

Violations

d. Defense to Liability for Gasoline

Nonconformity Violations Based Solely

on the Addition of Misadditized Ethanol

or Other PRC to Gasoline

e. Liability for the Sale of Nonconforming

Gasoline or PRC when the Gasoline or

PRC Also Violates VAR Requirements

f. Detergent Blender Affirmative Defense

Clarification, and Clarification of

Presumptive Liability Arising from

Detergent Blending

g. Liability Clarification

3. Inclusion of Importers of Additized

Gasoline Within the Definition of

Detergent Blender

4. Certification Use Restrictions

5. PTD Changes

a. Elimination of PTD Retention

Requirement for Additized Gasoline for

Wholesale Purchaser-Consumers (WPCs)

b. Elimination of PTD Requirements for

Transfer of Small Loads of Additized

Gasoline to Ultimate Consumers

c. Address of the Transferee/Transferor

d. PTD Identification of Oxygenates and

PRC Added to Gasoline

e. Detergent Package Use Restriction

Designations

f. Fuel-Specific Gasoline Designations

g. PADD Designation on PTDs for

Additized Gasoline or PRC

h. Identification of Oxygenate and PRC Use

Restrictions on PTDs for Additized

Gasoline

i. Base Gasoline Identification

j. Use of Product Codes on PTDs

k. PTD Requirements for Gasoline

Overadditized for the Later Addition of

Ethanol or Other PRC

6. Extension of the Agency’s Right of Entry

into Facilities of Detergent

Manufacturers, Distributors, and Carriers

7. Exemptions

a. Research, Development, and Testing

Exemption

b. Racing and Aviation Fuel Exemptions

c. California Gasoline Exemptions

C. Proposed Changes not Incorporated in

the Certification Rule

IX. Administrative Requirements

A. Administrative Designation and

Regulatory Analysis

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

D. Unfunded Mandates Reform Act

E. Submission to Congress and the General

Accounting Office

X. Electronic Copies of Rulemaking

Documents

A. Technology Transfer Network Bulletin

Board System (TTNBBS)

B. Internet

I. Background

A. Rulemaking History

Section 211(l) of the Clean Air Act

(CAA) specifies that, beginning January

1, 1995, all gasoline sold or transferred

to the consumer must contain additives

to prevent the accumulation of deposits

in engines or fuel supply systems. The

CAA charged EPA with the task of

establishing specifications for such

deposit control (detergent) additives.1

As described below, today’s final rule is

the fourth in a series of rulemaking

actions which EPA has taken to develop

a gasoline detergent program that is both

effective and reasonable, and to ensure

ample opportunity for public

participation in the regulation

development process.

On December 6, 1993, EPA published

a Notice of Proposed Rulemaking

(NPRM, 58 FR 64213) which proposed

that all gasoline, with limited

exceptions, must contain additives to

control port fuel injector deposits (PFID)

and intake valve deposits (IVD). When

fully implemented, the proposed

program would establish a detergent

additive certification program,

including vehicle-based test procedures,

specified test fuels, deposit control

performance standards, and related

enforcement provisions. However,

recognizing that the regulated industry

would need adequate lead time to

complete such certification

requirements, simpler interim

requirements were proposed for use at

the start of the program. While gasoline

would be required to contain properly

registered detergent additives beginning

January 1, 1995, the procedures and

criteria established to qualify a

detergent additive for use in the interim

program would be less rigorous than the

standardized performance requirements

envisioned for the full detergent

certification program.

Rules governing the two phases of the

program were not finalized at the same

time. The rules for the Interim Detergent

Program were published on October 14,

1994 (59 FR 54678), while today’s rule

establishes the final detergent

certification program. EPA took these

actions in two separate rulemaking steps

for two main reasons. First, the effective

date for the CAA’s mandate to use

deposit control additives was January 1,

1995. This required rapid promulgation

of the interim program rule after close

of the NPRM comment period, to give

the regulated parties as much lead time

as possible. However, to ensure

consistency with industry practices,

EPA wished to incorporate standardized

test procedures in the detergent

certification rule. At the time the

interim program was promulgated, the

American Society for Testing and

Materials (ASTM) had just completed its

IVD control test procedure (ASTM D

5500), but anticipated several more

months’ delay before completing

development of its PFID control test
35312 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

2See ‘‘Summary and Analysis of Comments on

General Provisions of the Detergent Certification

Program’’, Docket item V–B–02.

3 Docket numbers IV–C–08, IV–C–09, IV–C–10,

and IV–C–11.

procedure (later published as ASTM D–

5598). EPA judged that a delay in

finalization of the detergent certification

program would be appropriate to permit

adoption of both ASTM procedures.

The second reason for delaying

promulgation of the certification

program was to provide additional

opportunity for public discussion and

evaluation of potential regulatory

requirements for control of combustion

chamber deposits (CCD). Following

publication of the NPRM, a public

hearing was held (in Ann Arbor,

Michigan on January 11, 1994) and

written comments were accepted until

March 11, 1994. Much of this public

commentary pertained to the CCD issue.

The comments were split between those

who believed CCD controls were

unneeded and infeasible and those who

maintained that CCD problems were

already significant and could be

expected to grow worse with increased

use of PFID and IVD detergents, and that

CCD controls were both needed and

feasible.

To further the resolution of this

important issue, EPA published a Notice

of Reopening of the Comment Period (59

FR 66860, December 28, 1994). The

Reopening Notice requested additional

information regarding the potential

impacts of CCD on emissions, fuel

economy, and driveability; the possible

relationship(s) between IVD and PFID

detergent additive levels, unwashed

gum levels, and CCD formation; and

possible CCD control approaches. The

notice also sought additional public

input on other key concerns raised

during the initial comment period,

including certification test fuel issues

and various implementation and

enforcement provisions proposed for the

certification program.

EPA’s summary and analysis of public

comments on issues relevant to the

interim provisions of the detergent

program were published in a section of

the preamble to the interim program

final rule. Public comments on general

provisions of the detergent certification

program, including those received

following the NPRM as well as those

sent to EPA in response to the

Reopening Notice, are extensively

reviewed and analyzed in a separate

document accompanying this rule.2 A

synopsis of EPA’s evaluation of the CCD

issue is provided below in Section II,

and comments on other key topics are

briefly described in the relevant sections

of this notice. However, the reader is

directed to the separate Summary and

Analysis of Comments for detailed

presentation and evaluation of these

issues.

Public comments concerning the

detergent program’s enforcement issues

have been handled in a somewhat

different manner. Following

promulgation of the interim detergent

program, the regulated industry

submitted a number of questions about

the practical implementation of some of

the enforcement provisions of the rule.

In response, EPA provided guidance on

various enforcement provisions, in a

series of four Detergent Rule Question

and Answer Documents (‘‘Q&A

Documents’’).3 Today’s rule

incorporates a variety of regulatory

changes that are being made to codify

the guidance. Section VIII of this

preamble contains a synopsis of the key

issues related to these regulatory

changes, along with EPA’s analysis of

other enforcement-related comments not

discussed in previously published

documents.

B. Statutory Provisions and Legal

Authority

Recognizing that deposits in gasoline

engines and fuel supply systems can

increase harmful exhaust emissions and

adversely affect vehicle fuel economy

and driveability, Congress specified in

section 211(l) of the Clean Air Act that:

‘‘Effective beginning January 1, 1995, no

person may sell or dispense to an

ultimate consumer in the United States,

and no refiner or marketer may directly

or indirectly sell or dispense to persons

who sell or dispense to ultimate

consumers in the United States, any

gasoline which does not contain

additives to prevent the accumulation of

deposits in engines or fuel supply

systems * * *’’ Section 211(l) further

provides that ‘‘the Administrator shall

promulgate a rule establishing

specifications for such additives.’’

In section 211(l), Congress delegated

to EPA rulemaking authority to set

specifications for detergent additives to

prevent the accumulation of deposits in

engines or fuel supply systems. To

implement this grant of authority, EPA

has reasonably interpreted the several

ambiguous elements of this provision.

EPA believes that its interpretations will

promote the intent of Congress in

adopting this provision. First, the

statute states that the additives must

‘‘prevent the accumulation of deposits.’’

This term is ambiguous; it could be

interpreted to mean that the

specifications must ensure that an

additive will not allow any deposits

whatsoever to form, or that an additive

must be able to prevent all deposits and

eliminate existing deposits, or that an

additive could be acceptable if it would

provide a reasonable level of protection

against accumulation of new deposits

but would not make a great impact on

any existing deposits. In addition,

section 211(l) refers to ‘‘deposits in

engines or fuel supply systems.’’

Deposits can form in almost any part of

an engine or its fuel supply system, e.g.

the intake valves, the port fuel injectors,

the combustion chamber, the carburetor,

the exhaust valves, and so on. Congress,

however, did not specify which

particular deposits must be controlled

by the additives mandated by section

211(l), nor did it state that EPA must set

specifications such that additives would

prevent all possible deposits which

could possibly form anywhere in an

engine or fuel supply system. Finally,

Congress did not define the term

‘‘specifications’’ in any way. This term

could be interpreted to mean the

additives’ specific chemical

composition, or performance

characteristics, or the general type or

amount of additive which must be

added to gasoline. Therefore, the

Agency believes that Congress left EPA

with broad discretion and authority to

implement those provisions in an

appropriate regulatory framework that

achieves the general goals of Congress in

adopting section 211(l).

Looking at the Act’s legislative

history, EPA believes that the primary

purpose of section 211(l) is to reduce

emissions from gasoline-fueled vehicles

and engines and to prevent engine wear

or damage which could lead to

increased emissions. Section 211(l) was

added to the 1990 Clean Air Act

Amendments during conference. Prior

to the conference sessions, detergent

additive provisions were included in

the bills passed by each house of

Congress only as items in different

provisions for reformulated gasoline

(RFG).

The bill passed by the House of

Representatives contained a

requirement that cleaner gasolines

‘‘shall contain additives to prevent the

accumulation of deposits in engine fuel

supply systems.’’ S. 1630, 101st Cong.,

2d Sess., (1990). The Report of the

House Committee on Energy and

Commerce described the purpose of the

RFG provision, stating that ‘‘(s)uch

cleaner gasoline must achieve the

greatest reduction in ozone-forming

VOC and air toxic emissions achievable

through reformulation of conventional

gasoline, taking into consideration the

cost of achieving such emissions

reductions and health, environmental
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35313

and energy impacts.’’ H.R. Rep. 490,

101st Cong. 2d sess., 297 (1990). Given

the stated purpose of the RFG provision

to reduce vehicle emissions, and the

express requirement that RFG contain

detergent additives, EPA believes that

the House intended that EPA would

require additives in RFG for the purpose

of reducing emissions.

The bill passed by the Senate

included detergents as an alternative to

RFG regulations, as follows:

In the event that the Administrator does

not promulgate the [fuel quality] regulations

required by this paragraph, effective January

1, 1994, it shall be unlawful to sell, offer for

sale, supply, offer for supply, dispense,

transport, or introduce into commerce any

fuel for use in a gasoline-powered vehicle

unless such fuel contains additives effective

in preventing the accumulation of deposits in

fuel-injected engines.

S. 1630, 101st Cong. 2d sess., (1990).

The Report of the Senate Committee on

Environment and Public Works

expressed the purpose of the RFG

regulations as follows:

Subsection (k)(1) requires the

Administrator to establish fuel quality

standards to maximize engine performance

and to minimize emissions from the

combustion of fuels in vehicles and engines.

Engines may prematurely wear out due to

impurities in the fuel. Such fuel can clog fuel

injectors, cause additional corrosion and

otherwise affect engine performance, and

cause an increase in air pollution emissions

from the engine. In addition, fuel additives,

such as detergents, are available to maximize

the performance of engines and minimize

emissions.

S. Rep. No. 228, 101st Cong. 1st Sess.,

116 (1989) (emphasis added). Thus, EPA

believes that the primary legislative

intent behind the precursors of section

211(l) was to prevent or reduce vehicle

emissions.

The bill reported by the conference

committee adopted an RFG provision

which was similar to the House

provision, although it no longer

expressly required detergent additives

in RFG. This provision required the

Administrator to promulgate regulations

imposing the more stringent of two

options, either a formula, which would

require detergent additives, or a

performance standard for VOC

emissions. In addition, this bill

included the current section 211(l),

which requires detergent additives in all

gasoline sold after January 1, 1995.

There is no further explanation

anywhere in the legislative history of

the addition of section 211(l) to the bill.

H.R. Conf. Rep. No. 952, 101st Cong., 2d

Sess., (1990).

EPA believes that it is reasonable to

assume that the intent of Congress with

respect to section 211(l) was essentially

the same as its intent with respect to the

prior iterations of the similar provisions

in the RFG arena, i.e. to reduce vehicle

and engine emissions, and to prevent

engine wear which may contribute to

such emissions. Section 211(l) provides

EPA with broad authority to implement

its provisions within an appropriate

regulatory scheme that furthers the goals

of Congress in adopting this provision.

In accordance with this interpretation,

the certification program specifies the

engine and fuel supply system deposits

that must be controlled, the level of

control that is required, and the

responsibilities of various persons in the

manufacturing, refining, and

distribution systems to see that gasoline

used by the ultimate consumer is

properly additized. The certification

program also establishes specifications

for detergents for different gasoline

pools depending on their depositforming tendency, and a specification

for ‘‘zero additive’’ if a particular

segregated gasoline pool is shown to

have very little deposit-forming

tendency. Like the existing interim

detergent program, the certification

program specifies that all parties

involved in the chain of gasoline

production, distribution and sale are

responsible for compliance with the

gasoline detergency requirements. The

certification program also continues the

interim program’s precedent of applying

certain requirements of the detergent

program directly to manufacturers,

distributors, and carriers of detergent

additives, prior to, and after the

blending of such additives into gasoline.

As discussed in the preamble to the

interim rule, EPA is issuing today’s final

rule under the authority of sections 211

(a), (b), and (c) as well as section 211(l).

These sections of the CAA underscore

EPA’s authority to require the submittal

of compositional information and test

data directly from manufacturers of

gasoline detergent additives. Section

211(b)(1) authorizes EPA to require

manufacturers to submit information on

the composition and use of fuels and

fuel additives designated under section

211(a). In 40 CFR part 79, gasoline fuels

and any additives intended for use in

gasoline fuels have been so designated.

Furthermore, 211(b)(2)(B) specifically

calls for fuel additive registrants to

‘‘furnish the description of any

analytical technique that can be used to

detect and measure any additive in such

fuel * * *’’ EPA’s authority to require

the submittal of data from the detergent

additive manufacturer is also supported

by the provisions of Section 114 of the

CAA, which authorizes the

Administrator to collect any information

which may reasonably be required to

carry out the purposes of the Act from

any person subject to the provisions of

the Act.

Section 211(c)(1) provides EPA broad

authority to regulate the introduction

into commerce, production,

distribution, and sale of fuels and fuel

additives to protect the public health

and welfare. Since the interim and

certification program rules have been

adopted pursuant to section 211(c) as

well as section 211(l), the preemption

provisions of section 211(c)(4)(A) act to

prohibit certain state fuel controls. A

specific exception to the Federal

preemption is applicable in the case of

California, which has established its

own detergent program as permitted

under section 211(4)(B). Also, pursuant

to section 211(c)(4)(C), a state could

adopt a detergent program as part of its

State Implementation Plan if it were

necessary to achieve a national primary

or secondary ambient air quality

standard. The relationship between the

Federal and California detergent

gasoline programs is discussed further

in Section V below.

Section 211(c)(1) requires a finding

that either (A) any emission product of

a fuel or fuel additive causes, or

contributes, to air pollution which may

reasonably be anticipated to endanger

the public health or welfare, or (B)

emission products of a fuel or fuel

additive will impair to a significant

degree the performance of any emission

control device or system. EPA has

determined that emissions from gasoline

use cause or contribute to such harmful

air pollution (58 FR 64213, 64215). This

rule is the second phase in EPA’s

attempt to control such emissions

through restrictions on the production

and sale of gasoline and gasoline

detergent additives. This rule requires

that detergent additives manufactured

for use in gasoline meet certain

standards, and requires that gasoline be

blended with such additives at the

proper rate. This will reduce emissions

from gasoline use that cause or

contribute to harmful air pollution.

Before EPA can regulate under its

section 211(c)(1)(A) authority, section

211(c)(2)(A) requires the Agency to

consider ‘‘other technologically or

economically feasible means of

achieving emission standards under

section (202).’’ This has been

interpreted as requiring consideration of

regulation through motor vehicle

standards under section 202 prior to

regulation of fuels or fuel additives

under section 211(c)(1)(A). Ethyl Corp.

v. Environmental Prot. Agcy., 541 F.2d

1, 32 (D.C.Cir. 1976). This does not

establish a mandatory preference for
35314 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

vehicle controls over fuel controls, but

instead calls for the good faith

consideration of motor vehicle

standards before imposition of fuel

controls (541 F.2d at 32, n. 66). This

merely reflects Congress’ recognition

that fuel controls under section

211(c)(1)(A) might logically involve

controls on fuel composition itself,

while vehicle standards under section

202 are generally performance standards

regulating vehicle emissions and not the

design or structure of the vehicle. Fuel

controls might therefore lead to greater

government involvement in the

regulation of the manufacturing process

than would be expected from vehicle

controls (541 F.2d at 11, n. 13). Congress

addressed this concern by requiring

Agency ‘‘consideration’’ of vehicle

standards under section 202 before

imposition of fuel controls under

section 211(c)(1)(A). It is important to

note that the Administrator must in

good faith consider such vehicle

controls, but retains full discretion in

deciding whether to adopt either fuel or

vehicle controls, or both (541 F.2d at 32,

n. 66).

In evaluating motor vehicle controls

under section 202 in this context, EPA

has found that vehicle manufacturers

already have an incentive to design

vehicles to reduce deposit formation.

Deposits in fuel injectors and intake

valves affect a vehicle’s driveability as

well as its emissions. Because

consumers often look to a vehicle’s

manufacturer to resolve driveability

problems, manufacturers who address

such issues proactively through design

modifications have a market advantage

over those who do not.

Another issue that EPA considered

with respect to motor vehicle controls is

that deposits affect vehicles currently in

use. Any motor vehicle standard which

EPA might impose to prevent

accumulation of deposits therefore

would not have an impact until new

model vehicles replaced a significant

portion of the existing vehicle fleet. In

addition, EPA is barred by section

202(i)(3)(C) from imposing new

standards on light duty vehicles until

after model year 2003; thus any

emissions or other standard for such

vehicles would not even be introduced

into the U.S. vehicle market for almost

a decade. A fuel control related to the

gasoline, however, will help reduce

emissions from the entire in-use fleet of

motor vehicles, as well as from non-road

engines and vehicles that use gasoline.

Finally, 211(l) requires that all

gasoline sold to the ultimate consumer

after January 1, 1995 contain detergent

additives to prevent accumulation of

deposits, and requires the Administrator

to establish specifications for such

additives. Therefore, whether or not it

was appropriate to establish vehicle

standards, it would not be possible for

EPA to set vehicle standards alone.

Given these circumstances, EPA has

determined that it is appropriate to

promulgate this additive regulation

now, regardless of whether motor

vehicle controls are adopted later under

section 202. This decision is based on

the following facts. First, motor vehicle

manufacturers are already designing

engines to prevent susceptibility to

deposit formation due to market

incentives. Second, the requirement to

sell additized gasoline will have

immediate impacts on emissions from

gasoline combustion from both motor

vehicles and non-road engines and

vehicles, as the detergents will begin

preventing deposit formation as soon as

the fuel is used. There also may be some

additional clean-up benefit of using

detergent additized gasoline in engines

which already have deposits. Finally,

EPA is required by law to promulgate

this regulation under the separate

authority of section 211(l).

C. Overview of This Action

With this final rule, EPA is

establishing a detergent additive

certification program which modifies

many of the provisions of the existing

interim detergent additive program. As

mentioned above, the interim program

requires compliance with the CAA

mandate that all U.S. gasoline be treated

with deposit control additive prior to its

use by the consumer. To qualify for use

as a detergent under the interim

program, an additive must be properly

registered (under 40 CFR part 79) and

must have undergone some testing to

demonstrate its ability to control deposit

formation when used at the

concentration (treat rate) recommended

by its manufacturer. However, the

interim program does not require

specific test procedures and test fuels to

be used for this purpose, nor does it

include specific deposit control

performance standards which must be

met. Today’s rule establishes these

specific requirements for detergent

certification, along with changes to the

regulations regarding enforcement of the

certification program. Further

discussion of the enforcement

provisions is presented below in Section

VIII.

Broadly speaking, the detergent

additive certification program follows

the overall performance-based approach

proposed in the NPRM. To be certified

for use in compliance with gasoline

detergency requirements, an additive

must demonstrate the ability to meet

specified standards of IVD and PFID

control in the context of prescribed test

fuels and standardized, vehicle-based

test procedures. The practical result of

this testing is to ascertain an additive

treat rate that can meet the required

standards of performance. The

certification treat rate constitutes the

lowest concentration at which the

additive may be used by detergent

blenders in formulating gasoline for sale

to or use by the consumer.

As proposed in the NPRM, the

certification program includes a number

of voluntary certification options. These

options permit a detergent additive to be

tested in one or more test fuels,

resulting in different minimum treat rate

requirements for different types of

gasoline (e.g., oxygenated or

nonoxygenated, premium or regular)

and/or different gasoline pools (e.g.,

national, PADD, or segregated supplies).

The flexibility provided by these

options is described in more detail in

Section IV of this preamble.

While generally similar to the

proposed approach, the detergent

certification program finalized today

differs somewhat from the NPRM in

certain key areas. Most of these changes

are the result of efforts by EPA to

streamline and simplify the

requirements of the program. For

example, the NPRM proposed an

approach based on a two-tier

certification structure, such that

gasolines of very high severity (i.e.,

tendency to produce IVD and PFID),

would be required to be additized only

with detergents that had undergone

testing in specified high-severity test

fuels. Implementation of this provision

would not only require separate

detergent certification for use in generic

and high-severity gasolines, but would

also require ongoing evaluations of the

severity of gasoline supplied to the

distribution terminals to determine if

detergent certified for severe gasoline

would be needed or if generic detergent

would suffice. As described further in

Section IV.B, EPA now believes that the

potential benefit of the two-tier

certification approach is far outweighed

by the associated implementation

burdens. Thus, today’s rule finalizes a

single-tier certification approach and

does not contain special requirements

for gasoline of very high severity.

Another departure from the proposed

approach pertains to the number and

composition of test fuels required for

each certification option. Under the

proposed rule, to qualify for national

certification or for any certification

option, a detergent additive would be

required to undergo testing in a matrix

of up to four test fuels. Each test fuel
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35315

4Leaded gasoline was banned from use in

highway vehicles as of January 1, 1996, and the

EPA regulations no longer contain a generally

applicable definition of leaded gasoline. However

leaded fuel is still permitted to be used in nonroad

engines, and leaded gasoline is subject to gasoline

detergency requirements. In this final rule,

therefore, EPA has included a definition of leaded

gasoline (at § 80.140) that is applicable only to 40

CFR subpart G. This definition is effectively the

same as the previous, generally applicable

definition.

was to contain a different combination

of relatively high levels of specified fuel

parameters (i.e., ‘‘severity factors’’) and

oxygenate components. In addition, test

fuels meeting the required specifications

would have been required to be located

among commercial fuel supplies, not

specially formulated to specification

from refinery blend stocks.

For reasons explained at length in the

Summary and Analysis of Comments,

and summarized below in Section VI,

the test fuel requirements adopted today

are considerably simpler than the

proposed requirements. The final

regulations require testing of a detergent

additive in only one specified test fuel

for any given certification option, and

permit test fuels to be formulated to

specification from refinery blend stocks

rather than requiring them to be taken

from finished gasoline stock located by

sampling among commercial gasoline

supplies. However, to ensure that test

fuels resulting from this simplified

process will adequately challenge the

detergent additive, the regulations

require certifiers to test the unadditized

test fuels to demonstrate their depositforming tendency, prior to their use in

additive certification testing.

A third set of provisions which reflect

change from the proposed provisions is

in the important area of basic

information requirements. For example,

the information which additive

manufacturers must submit regarding

the composition of their detergent

additives has been changed to be more

consistent with typical additive

manufacturing practices (see Section

III.A). Moreover, the proposed

registration requirements for fuel

blenders that relate specifically to the

usage of detergent additives are not

retained in this final rule (see Section

III.B).

Subsequent sections of this preamble

describe the major provisions of the

detergent certification program in more

detail, including further discussion of

the way in which the requirements

differ from those proposed in the

NPRM.

D. Applicability

The applicability of detergency

requirements to various categories of

gasoline is based on the statutory

language of § 211(l), which explicitly

includes ‘‘any gasoline’’ in its mandate.

EPA has interpreted this to include fuel

commonly or commercially known as

gasoline, that is produced for use in

motor vehicles or engines or nonroad

vehicles or engines. Thus, the

applicability of this program is

essentially the same as under the

interim detergent program. The

regulations apply to all gasoline,

including conventional, reformulated

(RFG), oxygenated, and leaded 4

gasoline, whether intended for or used

by highway or nonroad vehicles or

engines. Marine fuel, gasoline used for

military purposes, gasoline service

accumulation fuel under the Federal

motor vehicle control program (for

emissions control system deterioration

testing purposes), and factory fill fuels

are also required to comply with

detergency requirements.

In the Reopening Notice, EPA

requested comment on whether

detergent-additized gasoline should

continue to be required for the gasoline

portion of E85 or M85 alcohol-based

fuels, in view of comment from the

automobile industry that some detergent

additives might be incompatible with

such fuels. In response, the American

Petroleum Institute (API) commented

that EPA should allow industry to

resolve compatibility issues through the

marketplace. API pointed out that E85

and M85 fuels are used in flexible-fuel

vehicles, which are expected to be

operated at times on ‘‘ordinary’’

detergent gasoline. Thus, due to mixing

in the fuel tank, alcohol-based

incompatibility problems which might

arise between some detergents and

alcohol-based fuels would need to be

addressed even if the gasoline portion of

the alcohol blends were exempt from

detergency requirements. EPA agrees

with API and, in this rule, has not

changed the detergent applicability

requirements of the interim program as

they relate to the gasoline portion of

alcohol-based fuels.

As in the interim program, the only

categories of gasoline which EPA is

exempting from detergency

requirements are racing fuel, aviation

fuel, emissions certification fuel, and

fuel used for research and development

purposes. In the case of the racing fuel

exemption, this final rule removes the

interim program’s restriction that only

gasoline sold or dispensed on the

premises of a racing facility can qualify.

In response to comments stating that the

interim rule’s restriction is inconsistent

with the actual handling and use of

racing fuel, EPA decided to permit

racing fuel to qualify for the detergency

exemption regardless of location,

provided that the fuel is distributed

only to racing vehicles that are

restricted to nonhighway use, and

dispensed only from retail pumps

clearly labeled as containing racing

gasoline (see Section VIII.B.7).

E. Program Start-Up and Compliance

Dates

Full compliance with the provisions

of the detergent certification program is

not mandatory for approximately a

year’s time. This one-year start-up

period is provided to allow certifiers

sufficient lead time to complete their

testing and reporting requirements, for

detergent blenders to obtain supplies of

certified additives and establish

associated administrative and quality

control support procedures, and for

gasoline retailers to obtain sufficient

quantities of properly additized

gasoline. Since the interim program is to

continue in effect until the certification

program becomes mandatory, today’s

rule also revises enforcement provisions

of the interim program to make these

provisions more efficient and

commensurate with those in the parallel

certification program. The revisions to

the interim program in today’s rule

become effective September 3, 1996.

Mandatory compliance with the

requirements of the detergent

certification program is required for

different parties in the gasoline and

detergent distribution system at

different times, based on their position

in the distribution chain. As of July 1,

1997, detergent manufacturers must sell

only properly certified detergents to

their detergent blending customers. Also

as of July 1, 1997, detergent blenders

must blend certified detergent at the

prescribed concentration into all

gasoline they distribute, and distributors

must sell or transfer only gasoline and

PRC properly additized with certified

detergents. To facilitate the proper

disposal of residual non-certified

detergent additive, EPA will allow such

detergent to be blended into gasoline in

combination with certified detergent

until January 1, 1998, provided that the

noncertified detergent was in the

detergent blender’s possession prior to

July 1, 1997 and that it accounts for less

than 10 percent of a detergent storage

tank’s delivered capacity (i.e. no more

than 10 percent of the detergent blended

into a batch of gasoline). In addition, the

total detergent blended into a batch of

gasoline must be sufficient to attain the

minimum concentration recommended

by the additive manufacturer for the

certified detergent.

Effective August 1, 1997, all gasoline

sold or transferred to the ultimate
35316 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

5The certification date will be the earlier of the

receipt by the certifier of acknowledgement by EPA

of its receipt of the certification letter, or 60 days

after the certifying party receives the return receipt

from the postal carrier acknowledging that the letter

was delivered to EPA.

6However, both the interim and certification

programs contain a special provision allowing the

detergent blender to use a detergent at a lower

concentration than that recommended by the

additive manufacturer, provided that the detergent

blender informs EPA of this intent and can provide

supporting data to substantiate the deposit control

effectiveness of the detergent at the specified lower

concentration.

consumer must be additized with

certified detergents in conformity with

any applicable detergent use

restrictions. An extra month is allowed

from the time detergent blenders are

required to begin blending certified

detergent to the time gasoline retailers

are required to sell gasoline containing

certified detergent, to provide adequate

time for gasoline containing

noncertified detergent in the retailer’s

storage tanks to be replaced with

properly additized gasoline. This

approach is consistent with that used

successfully in other EPA fuels

programs, such as in the regulation of

gasoline volatility (54 FR 11869, March

22, 1989), and the reformulated gasoline

program (59 FR 7841, February 16,

1994).

Prior to July 1, 1997, additive

manufacturers and detergent blenders

may comply either with the interim

detergent program regulations or the

detergent certification program

regulations finalized today. EPA

anticipates that, many detergent

additives will be certified prior to the

final deadline,5 and certified additives

will inevitably be delivered to fuel

terminals and blended into gasoline

before the deadline. If a detergent is

certified prior to July 1, 1997, the

requirements of the certification

program will apply to the use of that

detergent as of the effective certification

date. In most instances, the use of a

certified additive prior to the required

date will not significantly change the

detergent blender’s requirements under

the interim rule. The provisions of both

programs require the detergent blender

to add detergent to gasoline at a treat

rate no less than the minimum

concentration recommended by the

additive manufacturer (also called the

lowest additive concentration or LAC),6

and require the additive manufacturer to

provide adequate blending instructions

to the detergent blender, including the

minimum recommended concentration

reported to EPA in accordance with the

applicable detergent certification

requirements. Thus, while the specified

minimum amount of detergent may well

change after certification, the nature of

the additization and record-keeping

activities of the detergent blender will

usually not be greatly affected.

Exceptions will occur in the case of

detergent additives which have been

certified under options that place

restrictions on the type of gasoline in

which the additive may be used (see

Section IV). For example, a detergent

may be certified with two different treat

rates, one for use in all gasoline, and

one for use only in nonoxygenated

gasoline. In such an instance, if the

detergent blender chooses to use the

detergent at the treat rate certified for

use in nonoxygenated gasoline, then the

blender is required to conform to the

certification program provisions which

govern the handling of use-restricted

certified detergents, even if this occurs

before July 1, 1997. In the cited

example, where the treat rate certified

for nonoxygenated gasoline is to be

used, the blender must use the detergent

only to additize nonoxygenated

gasoline. In addition, the blender must

indicate on the outgoing product

transfer document that the gasoline has

been additized with detergent restricted

only to nonoxygenated gasoline, thus

informing downstream parties of the

existing restrictions. In essence, each

party in the distribution chain that

handles gasoline additized with a

detergent under a use-restricted

certification must observe the product

transfer document and all other

applicable requirements of the

certification program. Further

discussion on additive manufacturer

and detergent blender responsibilities in

regard to the handling of use-restricted

detergents can be found in Section VIII.

II. Combustion Chamber Deposit

Control

In the NPRM, EPA did not propose

any requirements for combustion

chamber deposit (CCD) control because

of uncertainty regarding the scope of the

problem and the lack of suitable

performance test procedures and

performance standards. Subsequently,

some commenters expressed concern

that a Federal requirement for PFID and

IVD control might encourage detergent

overuse, which could potentially

exacerbate CCD concerns. Other

commenters, however, agreed that

regulatory control of CCD was not

appropriate due to the lack of data and

adequate standardized performance test

procedures and standards. As a result,

EPA requested additional input from

affected industries (see Docket item IV–

E–35, ‘‘Summary of Additional

Comments on Combustion Chamber

Deposits’’), and published a notice

formally reopening the comment period

on the issue of CCD control. A detailed

discussion of the comments and EPA’s

response may be found in the Summary

and Analysis of Comments document

located in the docket for this

rulemaking. A brief synopsis of this

discussion appears below.

After carefully reviewing all of the

public comment and currently available

information, EPA is not able to

determine that a CCD control

requirement is warranted. Available

information on the impacts of CCD on

emissions, fuel economy, and

driveability are inadequate to draw

conclusions regarding the costs and

benefits of requiring additives for CCD

control. In addition, no appropriate

performance test procedures and

standards or effective surrogate

parameters for measuring CCD have yet

been developed. Further study may

indeed provide more information on

which EPA could base a CCD control

requirement. Thus, EPA will continue to

evaluate CCD issues and will reconsider

adopting a CCD control requirement at

a later date if appropriate.

For these reasons, EPA is very pleased

that, under the auspices of the

Coordinating Research Council (CRC),

members of the automotive and

petroleum industries have embarked on

a joint research program to investigate

some of the controversial issues which

still remain about the causes, effects,

and accurate evaluation of CCD. The

work of the CRC is expected to help

elucidate the potential need for and

environmental benefits of CCD control,

and to investigate vehicle parameters

that influence vehicle response to CCD

in preparation for potential

development of standard test

procedures for measuring CCD and

evaluating a detergent’s ability to

effectively control CCD. EPA believes

that the products of CRC’s work will

greatly facilitate EPA’s investigation of

whether CCD control is necessary and

feasible.

A. CCD Impacts on Vehicle Emissions

Most members of the petroleum and

detergent additives industry commented

that uncertainties persist regarding the

scope of a CCD-related emission

problem and that test procedures and

standards are lacking. They stated that

EPA should defer action until research

planned by the CRC has been

completed.

Automotive industry commenters

stated that the CCD-related emissions

impact is sufficiently well demonstrated

to compel EPA to implement a CCD

control requirement; this statement was

supported by limited data and literature
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35317

7 Docket items VI–D–43 and VI–D–45.

references. Others stated that EPA

should implement a requirement to

ensure that detergent additives are used

that can remove existing CCD and

prevent the formation of CCD, because

the vehicle octane requirement increase

(ORI) caused by CCD results in higher

emissions.

While EPA agrees that there is

sufficient data to demonstrate a

probable link between CCD formation

and increased NOX emissions, the

magnitude of the NOX emissions impact

has not been sufficiently defined to

allow EPA to determine how substantial

an impact it is. The impact of CCD on

hydrocarbon and carbon monoxide

emissions is even more uncertain.

Characterization of the magnitude of the

CCD emissions impact is important so

that EPA can evaluate the costs and

effectiveness of potential CCD control

measures. At this time, EPA is not in a

position to determine that CCD, and

particularly any detergent additive

contribution to CCD, causes vehicle

emission and performance problems

warranting regulatory control. The

weight of the public comment indicates

that, for major marketers, representing

60–70 percent of gasoline sold in the

U.S., EPA’s IVD and PFID performance

mandate will not cause a change in the

types of detergent additives used or

result in appreciably increased

concentrations of these detergents. As

for the rest of the market, EPA’s IVD and

PFID performance requirements are

expected to bring the entire industry up

to the levels of deposit control

protection provided by major marketers

prior to implementation of regulatory

controls. Because EPA’s IVD and PFID

performance requirements are expected

to bring the entire market up to a level

of deposit control protection previously

achieved by major marketers, EPA

believes that these requirements will not

create or exacerbate CCD problems.

Thus, in the absence of sufficient data

to support the need for a requirement to

control the contribution of detergent

additives to CCD, EPA disagrees with

automobile industry comments that EPA

is obligated to take immediate action in

implementing such a requirement.

B. CCD Energy Impacts

As mentioned above, several

commenters stated that CCD contributes

to vehicle octane requirement increase

(ORI), i.e., the need for higher octane

fuels to prevent engine knock as the

engine ages. Higher octane fuels require

more crude oil to produce, thus causing

an increase in total refinery and vehicle

energy use. Several commenters also

stated that if ORI were reduced, engine

design might be further optimized for

improved fuel economy using gasoline

of the octane quality currently on the

market.

The Department of Energy (DOE)

conducted an evaluation of CCD control

additive technologies that also have ORI

claims, and of the potential energy and

vehicle and refinery emissions

implications of ORI control.7 DOE

concluded that a correlation exists

between CCD and ORI. However, DOE

also stated that automobile

manufacturers generally design their

vehicles to accommodate a worst case

ORI condition, and provide a built-in

margin to ensure that the vehicle can

continue to operate on the fuel specified

after the octane requirement stabilizes at

about 15,000 miles. DOE stated that

most automobiles do not require a

higher octane fuel than recommended

by the manufacturer. It is true that

exceeding the octane specification of the

fuel recommended by the manufacturer,

if not compensated for by the use of a

higher octane fuel, could cause engine

knock in vehicles that are not equipped

with knock sensors or retardation of

engine timing in engines that are

equipped with knock sensors. Both

engine responses could result in

inefficient combustion, and attendant

reduced fuel economy. However, at this

time, EPA agrees with DOE that the

available information does not indicate

widespread exceedance of the ORI

tolerance built-in by engine

manufacturers. Thus, EPA can not

conclude that an ORI-based CCD control

requirement should be implemented to

prevent an adverse impact on fuel

economy.

On the broader energy use question,

the DOE analysis suggested that the

potential changes in crude oil use

combined with questionable effects on

vehicle fuel economy would not make a

compelling argument to support the

position that a reduction in CCD would

result in a cost-effective overall

reduction in fuel consumption, total

gasoline refinery and motor vehicle

emissions or energy use, or dependency

on foreign oil. In conducting its

assessment, DOE took into account

refinery processing efficiencies, energy

yield, and vehicle fuel consumption.

DOE stated that, based on their

evaluation of available data, the

potential direct vehicle emission effects

of CCD control should be the primary

factor considered in evaluating whether

it is appropriate for EPA to implement

a CCD control requirement. EPA agrees

that the available information is

inadequate to conclude that a reduction

in ORI would result in a cost-effective

reduction in total energy use or

emissions from gasoline refineries and

motor vehicles.

C. CCD Interference

Automotive industry commenters

urged EPA to implement a CCD control

requirement to prevent potential

negative impacts of CCD on driveability,

including combustion chamber deposit

interference (CCDI). They stated that

CCDI problems are expected with the

increased use of IVD control additives.

The petroleum industry stated that

there is no documented basis for EPA to

consider a CCD control measure to

prevent CCDI associated with detergent

additive overuse. They stated that data

indicates that manufacturing tolerances

play a predominant role in the CCDI

problem, and cited a study indicating

that engines with a 0.9 mm squish gap

design were unaffected by CCDI, while

off-specification tolerances as low as 0.3

mm were virtually guaranteed to

produce the engine knock associated

with CCDI regardless of the fuel used.

EPA agrees that available data

indicates that manufacturing tolerances

play a predominant role in the CCDI

problem. EPA therefore does not believe

that there are compelling reasons at this

time to implement a CCD control

requirement in order to prevent CCDIrelated driveability problems. Moreover,

the IVD and PFID requirements

implemented with this rulemaking are

not expected to increase levels of CCD

relative to those seen in current vehicles

using major petroleum marketers’

gasoline.

D. Unwashed Gum Levels and CCD

Several automobile industry

commenters stated that, as a surrogate

for CCD control, EPA should implement

an interim limit on gasoline unwashed

gum levels to prevent adverse side

effects that might result from EPA’s IVD

and PFID performance mandates. One

commenter presented an analysis of

gasoline survey data which, it stated,

indicates a correlation between

increasing unwashed gum levels in

commercial gasolines and the use of

increasing concentrations of IVD

detergent additives. Data was submitted

by another commenter which, it stated,

indicated that certain IVD and PFID

additives contribute to CCD formation,

and showed a correlation between

unwashed gum levels and CCD.

On the other hand, several fuel and

additive industry commenters stated

that available data does not demonstrate

a correlation between unwashed gum

levels and CCD. They presented data

which they stated indicates that no

general correlation between unwashed
35318 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

8Subsequently, in Question and Answer

Document #3 (Docket item IV–C–10), EPA clarified

that only downward variation in the concentration

of any detergent-active component was prohibited.

9 ‘‘Interactions Between the Environmental

Protection Agency (EPA) and the Chemical

Manufacturers Association (CMA)’’, Jeff Herzog,

OMS, Judy Lubow, OECA, Docket item IV–E–41.

gum levels and CCD exists. They also

stated that unwashed gum levels are not

necessarily a predictor of detergent

additive concentrations.

EPA has concluded that no

correlation of unwashed gum levels or

additive concentrations with gasoline

CCD-forming tendency has been

established. EPA agrees with comments

from fuel and additive producers that

unwashed gum levels cannot be used as

a reliable predictor of detergent

concentration. EPA believes that

available data indicates that detergent

additives vary in their tendency to

contribute to CCD, and that this

tendency does not necessarily correlate

with unwashed gum levels. Based on a

review of all of the available data, EPA

believes that implementing an

unwashed gum limit on additized

gasoline would not necessarily produce

beneficial results and might actually

produce a barrier to the development of

CCD control additives.

E. Other Potential Adverse Side Effects

of Detergent Overuse

Automobile industry commenters

raised concerns about the effects

detergent additive overuse might have

on materials and components of

automobiles. The comments stated that

intake valve sticking and deterioration

of the fuel system, oxygen sensor and

catalyst could result from the use of

overadditized fuel. API commented that

negative impacts on vehicles of

accidental overtreatment have been very

rare.

EPA finds no compelling reason from

an emissions control standpoint to

implement specific regulatory measures

to prevent occurrences of detergent

overuse. To the extent that driveability

problems may exist due to the failure of

fuel marketers to institute adequate

quality control measures, the industries

involved are in a position to adequately

resolve these problems without the

imposition of a regulatory control. As

noted above and discussed in the

Summary and Analysis of Comments,

EPA has sufficient reason to believe that

its IVD and PFID control requirements

will not increase the likelihood that

detergent overuse, and any attendant

side effects, will take place.

III. Basic Information Requirements

Pursuant to the fuel and fuel additive

registration regulations in 40 CFR part

79, both additive manufacturers and

fuel manufacturers are required to

report specific identification,

composition, and other basic product

information to EPA. In the NPRM for the

detergents program, EPA proposed

additional information that would be

required for detergent additive

registration in order for a detergent

product to be eligible for use by

blenders in complying with the gasoline

detergency requirements of the rule.

EPA also proposed specific registration

requirements for fuel manufacturers

related to their detergent blending

responsibilities under the program. This

section briefly describes the originally

proposed information requirements as

well as those included in the interim

detergent rule, and summarizes the

changes to these requirements reflected

in today’s final rule.

A. Detergent Additive Information

Requirements

Under the fuel additive registration

requirements of § 79.21, an additive

manufacturer must submit certain

compositional and analytical

information on each of the additive

products it wishes to market. Among

other requirements, these include the

chemical identification and

concentration of the components of the

additive product; the chemical structure

of each component; an analytical

technique for detecting and/or

measuring the additive as mixed in fuel;

the identity of the fuels in which the use

of the additive is recommended and the

purpose-in-use and manufacturer’s

recommended range of concentration of

the additive in each such fuel.

Consistent with these standard

registration requirements, EPA proposed

that, for a detergent additive to be

eligible for fulfilling gasoline detergency

requirements, detergent certifiers would

be required to submit the following

information on detergent additive

composition: (1) A specific chemical

description of each component of the

detergent package, (2) the exact weight/

volume percent of each component of

the detergent package, (3) a fourier

transform infrared spectroscopy (FTIR)

test method to obtain a qualitative and

quantitative spectrum of the detergent

additive package both in its pure state

and in finished gasoline, and (4) an

actual infrared spectrum of the

detergent additive package and each

component of the detergent package.

The detergent NPRM also proposed that,

upon EPA’s request, a sample of the

detergent additive must be provided to

the Agency for evaluation.

The information reporting

requirements finalized in the interim

detergent rule (at § 80.141(c)) maintains

the proposed requirement that the exact

amount of each component of the

detergent additive package must be

reported, and specifically prohibits the

reporting of any detergent-active

component as the product of other

chemical reactants. In addition, the

interim rule requires that, for each

detergent-active component, the

registration must indicate which of the

following chemical categories applies:

(1) Polyalkyl amine, (2) polyether

amine, (3) polyalkylsuccinimide, (4)

polyalkylaminophenol, (5) detergentactive carrier oil, (6) other detergentactive component. The interim

regulations state that a single detergent

additive registration may contain no

variation in the identity or

concentration of any detergent-active

component.8 The regulations require the

availability of an analytic procedure,

preferably based on FTIR, that is

capable of both qualitative and

quantitative identification of each

component of the detergent additive

package. The regulations do not require

that the procedure be capable of

identifying the additive when mixed in

fuel.

Following publication of the interim

rule, CMA proposed several alternatives

to those requirements. CMA stated that

the compositional reporting

requirements in the interim rule failed

to recognize the essential chemical

nature of deposit control additives and

the processes by which they are

manufactured. CMA asserted that

compliance with the requirements

would be impossible, given the nonhomogeneous nature of detergent

polymers and carrier oils, and the

inherent variability in detergent

manufacturing, blending, and analytic

sampling processes. CMA was also

concerned about the compositional test

results required to establish a defense to

presumptive liability under

§ 80.156(c)(4)(ii) of the interim

regulations.

CMA suggested that, rather than exact

concentrations, only target

concentrations of the various detergentactive components should be required

to be reported for registration. CMA also

stated that registrants should not be

precluded from reporting detergentactive components as the product of

other chemical reactants, provided that

the registrant also provide a description

of product parameters that are sufficient

to effectively define the registered

product.

As described fully in the Summary

and Analysis of Comments and in a

memorandum to the docket,9 EPA has
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35319

10 Detergent certification testing must be

conducted with each detergent-active component

present in the test fuel at a concentration that does

not exceed the concentration reported as the lower

bound in the range of concentrations.

11 See Docket item IV–B–09 for a discussion of

the procedures that will be observed in handling

proprietary detergent additive samples.

considered the various issues raised by

CMA, and has also reviewed its own

experience with the interim program.

Under the interim program, some

manufacturers appear to have been able

to comply with the requirement to

specifically identify and quantify each

component of the detergent package,

while others have maintained that they

are unable to comply. While this

experience does not enable EPA to make

a definitive judgment as to the general

appropriateness of the interim reporting

requirements, it does demonstrate an

ongoing problem in at least some cases.

Thus, EPA is adopting several

provisions in today’s rule that will

provide alternative reporting

requirements. EPA believes these

alternative will accommodate industry’s

reasonable concerns about practical and

technical limitations on the ability to

define detergent additive composition,

while also providing EPA with

assurance that detergent composition

variability will not adversely affect inuse deposit control effectiveness. The

requirements finalized in today’s rule

are summarized below.

1. Compositional Data. The interim

rule’s requirement that all components

of the detergent additive package be

identified chemically and by

concentration (weight or volume

percent of the product, as applicable)

will remain in effect. Within a single

detergent additive registration, the

identity of detergent-active components

is still not permitted to vary. However,

today’s final rule accommodates

manufacturing variability to a greater

degree than previously allowed under

the interim rule. Specifically, a range of

concentrations is permitted to be

reported for detergent-active

components, provided that at the lower

end of the range, the deposit control

effectiveness of the additive package is

not less than that demonstrated during

certification testing.10

Recognizing the heterogeneous nature

of the carrier oils and detergent-active

polymers which frequently occur in

detergent additive formulations, these

final regulations provide two methods

by which the chemical composition of

detergent-active components may be

reported. When it is reasonable to do so,

detergent-active components are to be

identified (as originally proposed) using

standard chemical nomenclature or a

description of the chemical structure, or

both. However, when the manufacturer

believes this requirement to be

infeasible or impractical, detergentactive components (both detergentactive polymers and detergent-active

(chiefly synthetic) carrier oils) may be

reported as the product of specified

reactants. In such cases, the reactant

materials must be identified, together

with the acceptance criteria normally

used by the manufacturer for

determining that these materials are

suitable for use in synthesizing the

detergent components. Upon EPA’s

request, documentation must be

provided by the manufacturer that the

reported acceptance criteria are in fact

those normally required of its suppliers.

In addition, the detergent-active

components must be described by

means of gel permeation

chromatography (GPC), providing a

quantitative distribution of the

polymeric components by molecular

size. The GPC requirements include a

description of the test procedure,

including the use of appropriate

calibration standards, and the resulting

chromatograms. EPA believes that,

when combined with other reporting

and sample requirements (described

below), this alternative approach will

provide adequate identifying

information for detergent-active

components.

For non-detergent-active carrier oils

(usually petroleum-based), the additive

manufacturer must provide the

percentage by weight of oxygen,

nitrogen and sulfur, when present in the

carrier oil at greater than 0.5 percent by

weight. In addition, the manufacturer

must provide the T10, T50, T90, end

boiling point, API gravity, and viscosity

of the carrier oil mixture.

These registration requirements will

provide some useful information for

determining whether an in-use

detergent additive conforms to the

composition of the detergent additive

package which was shown to be

effective during certification testing.

However, in light of the limited ability

of detergent manufacturers to precisely

define the chemical properties of their

additive, EPA believes that additional

means are needed by which conformity

with the composition reported in the

certification process can be confirmed.

Therefore, today’s rule requires a

sample of the detergent product to be

submitted to EPA at the time the

certification letter is sent to the Agency,

as well as an FTIR-based test procedure

together with the actual infrared spectra

produced by the procedure.

Under the interim rule and proposed

certification rule, these items were to be

submitted on a per-request basis only.

Thus, to accomplish the Agency’s

objectives, EPA could have chosen to

request the detergent sample and FTIR

from each additive manufacturer

individually at the time of detergent

certification. However, this would be a

time-consuming and inefficient

procedure. In fact, EPA’s past

experience indicates that manufacturers

may be reluctant to cooperate with such

requests. Therefore, EPA has instead

chosen to require the submission of

these items with every certification

letter. It should be noted, however, that

submission of detergent samples to EPA

at the time of certification does not

mean that the Agency will confirm the

validity of the compositional

information submitted by the additive

manufacturer. EPA reserves the right to

request and analyze other samples.

Some detergent samples (or portions of

samples) may indeed be used to verify

the registration information provided by

the additive manufacturers; others may

be kept as baseline samples for

monitoring the conformity of future

production batches. Detergent samples

may also be used by EPA chemists in

efforts to develop improved analytical

methods for detergents and their

components.

EPA is sensitive to manufacturer’s

concerns about the handling of the

samples they submit. To ensure the

proper treatment of samples claimed as

confidential by the manufacturer, the

regulations require the detergent

samples to be sent to EPA’s chemistry

laboratory in Ann Arbor, which handles

and stores such proprietary materials as

part of its day-to-day operations.11

Information claimed as confidential will

be protected as required under EPA’s

regulations concerning confidential

business information, at 40 CFR part 2.

EPA also will take all reasonable steps

to maximize the shelf life of detergent

samples. To that end, today’s rule

requires that manufacturers inform EPA

about any known sample shelf life

limitations, if any, and to indicate what

conditions (e.g.,temperature or light

exposure) most affect shelf life. Such

information should be readily available

to additive manufacturers for their own

quality control purposes.

The Agency anticipates that detergent

shelf life (i.e. the length of time during

which all of the pertinent properties

that define a detergent’s functionality

remain unchanged) will nearly always

exceed a year or more. In addition,

certain basic properties (e.g., API

gravity, and viscosity), tend to be less

sensitive to the passage of time. Thus,

a detergent sample may be useful for
35320 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

12 Repeatability of a test method is defined by

ASTM as the quantitative expression of the random

error associated with a single operator in a given

laboratory obtaining replicate results with the same

apparatus under constant operating conditions on

identical test material within a short period of time.

It is further defined as that difference between two

such single results as would be exceeded in the

long run in only one case out of twenty in the

normal and correct operation of the test method.

(ASTM D 3244, Standard Practice for Utilization of

Test Data to Determine Conformance with

Specifications.)

certain limited testing purposes even

after the normal shelf life has expired.

After an additive sample is no longer

suitable for any analytical testing

purposes, it will be destroyed by the

Agency.

Today’s rule contains one additional

compositional reporting requirement

which detergent manufacturers must

fulfill if they wish to be able to take

advantage of relatively simple

mechanisms which the rule provides for

demonstrating an affirmative defense to

presumptive liability (see Section

VIII.B.2.a of this preamble). This

provision requires the manufacturer to

submit to EPA certain physical product

parameters which will be monitored on

each detergent production batch for

quality control purposes. Generally, the

parameters to be monitored for

affirmative defense purposes include

viscosity, density, and basic nitrogen

content, although other parameters may

be added or substituted upon the

manufacturer’s request and EPA’s

approval. For each such parameter, the

target value and range of variability and

a description of a standardized

measurement test procedure are to be

provided at the time of certification. The

designated test methods must be

consistent with the chemical and

physical nature of the detergent

product, and the documented ASTM

repeatability 12 for the method must be

specified. EPA will consider the

parameter measurement to be an

acceptable basis for establishing an

affirmative defense to presumptive

liability if the range of variability differs

from the target value by no more than

five times the ASTM repeatability value,

or by no more than 10 percent of the

target value, whichever is less. Due to

the practical limitations associated with

the measurement of small quantities of

certain product parameters, this

variability limit does not apply in the

case of nitrogen analysis (or other

procedures for measuring

concentrations of specific chemical

compounds or elements) when the

target value is less than 10 parts per

million. In such cases, the acceptable

variability is instead limited to 50

percent of the target value.

EPA believes that establishing such

limitations on the acceptable range of

product parameter variability is

necessary to a credible claim that a

given batch of detergent is equivalent to

the certified detergent product. This is

especially important in view of the fact

that deposit control performance testing

is required only on a single detergent

sample of a given composition. While

acknowledging that some production

variability is expected, EPA must still

ensure that the functionality of the

detergent actually produced is

reasonably equivalent to that

demonstrated during certification. EPA

believes that, along with other

affirmative defense elements, the

required limits on manufacturing

variability will provide adequate

assurance on a routine basis that the

composition and attendant deposit

control efficacy of detergent production

batches do not vary to such an extent

that the minimum recommended

treatment rate reported by the additive

manufacturer is no longer representative

of the detergent’s actual performance.

Outside of these limits, EPA is not

sufficiently confident that the

composition of detergent production

batches would provide adequate deposit

control. The affirmative defense

provisions in today’s rule provide

additive manufacturers with practical

and economical methods to demonstrate

that the deposit control efficacy of

detergent batches is maintained, while

allowing a reasonable degree of

production variability. The regulations

also allow manufacturers who cannot

meet these variability limits to request

(and justify) other arrangements.

2. Minimum Effective Concentration.

As specified in § 79.21(d), a fuel

additive registration must report the

minimum blending concentration which

the manufacturer recommends for the

additive in each type of fuel for which

the additive’s use is designated. In the

case of detergent additives registered for

use in gasoline, the minimum

recommended concentration is required

to be no less than the lowest amount

which the additive manufacturer has

determined to be effective for deposit

control. Thus, the minimum

recommended concentration is also the

lowest additive concentration (LAC)

which the detergent blender may use in

gasoline to be in compliance with the

detergency requirements of this program

(subject to any use restrictions that may

be applicable under a given certification

option).

The interim detergent regulations

require that the reported minimum

effective concentration be supported by

appropriate test data, which is to be

supplied to EPA upon request. While

rigorous test procedures and

performance standards are not specified,

the interim rule does contain general

guidelines regarding the type(s) of tests

and test fuels which EPA will regard as

sufficient, during the interim period, for

demonstrating an additive’s deposit

control effectiveness at the specified

minimum concentration. These flexible

testing requirements were appropriate,

given the purpose and practical

limitations of the interim program.

As described in subsequent sections,

however, the detergent certification

program requires that the minimum

recommended concentration be

determined on the basis of specific

deposit control performance standards,

as shown in the context of specific

performance tests and test fuels.

Moreover, this final rule offers a number

of certification options (described in

Section IV), such that a different

minimum concentration may be

determined for different gasoline pools

(e.g., national, PADD, fuel-specific) or

gasoline types (e.g., premium,

oxygenated, nonoxygenated). Thus, in

reporting the minimum recommended

concentration(s) for gasoline detergent

additives, the additive manufacturer

must also specify the applicable

certification option(s) for each

minimum concentration. In addition, if

the detergent is also registered

separately for use in leaded gasoline, the

applicable minimum concentration for

deposit control in leaded gasoline must

be specified. This amount may be the

same as that needed for PFID control

under any certification option (except

fuel specific) or, optionally, the amount

demonstrated to be needed for

carburetor deposit control.

The information on minimum

concentration, as reported in the

detergent registration, must also be

accurately communicated by the

additive manufacturer to its customers,

i.e., detergent blenders and secondary

additive manufacturers. For protection

of all parties involved in the transaction,

this communication must be made in

writing. For example, if a gasoline

misadditization were to occur, such that

detergent were added at a concentration

less than the required minimum

amount, the detergent manufacturer

could potentially be held liable for the

misadditization unless he could

demonstrate that proper blending

instructions were provided prior to the

additization. These liability issues are

discussed further in Section VIII of this

preamble.
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35321

13 For example, in the case of a fuel-specific

certification, the certifying party could be the fuel

manufacturer or another party with title and access

to the segregated fuel supply, rather than the

detergent manufacturer. See Section IV.D.

3. Certification Letter. In addition to

satisfying the above requirements

concerning detergent additive

composition and recommended

concentration, the additive

manufacturer (or other party wishing to

certify the detergent 13) must submit a

certification letter to EPA. The

certification letter must include a

statement attesting that the additive has

undergone the performance testing

required by the regulations, using the

specified test fuels, and has met the

deposit control performance standards

required for certification. The statement

must also affirm that the performance

tests were conducted in a manner

consistent with sound engineering

practices, and that complete

documentation of the test fuel

formulation, performance test

procedures, and test results is available

for EPA’s inspection. In addition, the

letter must provide summary

information on the test fuel composition

and source(s), the additive

concentration(s) used in certification

testing, the results of the testing, and the

lowest additive concentration

(minimum recommended concentration)

which the certifier seeks to establish for

each certification option under which

the detergent is to be certified. This is

a self-certification process, with the

party providing EPA with information

that indicates compliance with the

various requirements. EPA will not

issue a certificate, for example as done

in the Federal motor vehicle emissions

control program.

The Agency will acknowledge receipt

of the certification letter. The

certification date will be the earlier of

either the certifier’s receipt of EPA’s

acknowledgement, or 60 days after

EPA’s receipt of the certification letter,

as documented by a certified mail

receipt. EPA does not intend routinely

to examine the full test documentation,

and will in many cases rely on the

certifier’s attestations. Neither EPA’s

acknowledgement of receipt of the letter

or the passage of time indicates that the

certification letter has been reviewed by

the Agency or that a determination has

been made regarding whether the

requirements of certification have been

satisfied. This is consistent with the self

certification approach adopted in this

rule. On a case-by-case basis, EPA may

require that an additive certifier provide

the actual test data to EPA to

substantiate the claim of deposit control

effectiveness made in the certification

letter. EPA believes that the declaration

by the certifier that a detergent

certification meets the program testing

requirements, coupled with the

occasional Agency review of

certification test data, should provide

reasonable assurance that the program

requirements will in fact be met in the

vast majority of cases.

EPA might request submission of

supporting data for a variety of reasons.

For example, the detergent treat rate

recommended by an additive

manufacturer under one certification

option may seem anomalous relative to

the treat rates recommended for the

same additive under other certification

options. Alternatively, the treat rates

recommended by one additive

manufacturer may not be consistent

with the treat rates recommended by

manufacturers of apparently similar

additives. EPA may also learn from fuel

or automobile manufacturers that a

particular detergent product appears to

be less effective than others. For these

or other reasons, including random

oversight of compliance, EPA may

request that the additive certifier

provide some or all of the test procedure

and fuel data required under the

regulations. In such a case, the detergent

registrant must provide the supporting

data to EPA within 30 days of receipt of

the request for such data. If EPA judges

the supporting data to be inadequate (or

if it is not received), EPA may disqualify

the subject detergent for use in

compliance with the requirements of

this rule (see § 80.161(e)). The detergent

additive manufacturer will be required

to provide EPA with a list of its

customers who use the disqualified

detergent. EPA shall inform all such fuel

manufacturers and secondary additive

manufacturers that the detergent is no

longer eligible for use in complying

with Federal gasoline detergency

requirements. In addition, EPA may

initiate the enforcement actions

described in Section VIII.

Under the interim program, a

disqualification order becomes legally

effective for the additive manufacturer

five days after its publication in the

Federal Register. Today’s rule provides

that under the certification program a

disqualification order will become

effective for the certifier on the date the

order is received by the certifier. The

disqualification order will be published

in the Federal Register as under the

interim program. However, EPA

believes there is no reason to delay the

effective date of a disqualification for

the certifier past the date when the

notification is received from EPA. At

this point in the disqualification

process, the certifier will have been

afforded ample notice of a

disqualification and an opportunity to

participate in the Agency’s evaluation of

whether the disqualification was

appropriate. Thus, the certifier will have

had sufficient opportunity to prepare to

comply with the disqualification order

upon its arrival. If the certifier is also a

blender of the disqualified additive, the

certifier must also stop using the

ineligible detergent upon receipt of the

disqualification order. As under the

interim program, other blenders affected

by the disqualification order will be

afforded 45 days from their receipt of a

notification from EPA that the detergent

is no longer eligible for use to comply

with gasoline detergency requirements,

or 45 days from the publication of such

notification in the Federal Register,

which ever is sooner, to discontinue use

of the disqualified detergent and

substitute an eligible detergent additive.

B. Information Requirements for Fuel

Manufacturers

The NPRM and the interim detergent

program recognized that detergent

blenders, as fuel manufacturers (under

the existing definition of a fuel

manufacturer in § 79.2(d)), are subject to

standard fuel registration requirements

under 40 CFR part 79. These standard

requirements include the identification

of any additive products intended to be

used in the registered fuel and the range

of concentration of each such additive

in the fuel. The only additional feature

proposed to meet the information

requirements for fuel registration under

the detergent program was that the

lower boundary of the range of

concentration of detergent additives

could be no less than the minimum

recommended concentration specified

in the detergent additive’s registration,

unless otherwise approved by EPA

under special circumstances.

For reasons not directly related to the

detergents program, EPA is currently

considering possible changes to the

definition of ‘‘fuel manufacturer’’ in

§ 79.2(d). If this change is adopted, EPA

realizes that many detergent blenders

would no longer be required to submit

the registration information envisioned

in the NPRM. However, EPA experience

under the interim program indicates

that EPA’s monitoring and enforcement

activities regarding the proper use of

certified detergents rely much more on

the detergent blenders’ additization

accounting records (see Section VIII)

than on the up-front registration

information which they would be

required to submit. Thus, while this

final rule requires detergent blenders to

maintain specific records concerning
35322 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

their additization activities, it does not

include any special registration

requirements for detergent blenders, nor

for fuel manufacturers in general.

IV. Certification Options

A. Background

The gasoline produced by the U.S.

refining industry is not homogeneous

with respect to the tendency to form

deposits. Gasoline pools with different

characteristics occur as a result of

different crude oil sources, refining

capabilities and fuel distribution

networks, the octane rating of gasoline

provided for different engine designs,

and regulatory programs which control

certain parameters in gasoline sold in

polluted urban areas. A study of the

relative deposit-forming severity of

these gasoline pools showed that

different pools of gasoline may vary in

their deposit forming potential, as

reflected by different distributions in

the levels of specified ‘‘severity factors’’

(see Section VI). To provide industry the

opportunity to optimize the detergent

additization of these various pools

while still ensuring the environmental

benefits of the program, EPA proposed

detergent certification options based on

the deposit related characteristics of the

various gasoline pools.

The proposed certification options

included a nationwide program,

geographical options based on the

Petroleum Administration Districts for

Defense (PADDs), oxygenate options

because of the variety of oxygenates

which may be blended into gasoline to

meet regulatory requirements or octane

specifications, an option for premium

gasoline, and a fuel-specific option for

segregated gasoline pools. These options

are all being finalized in today’s rule.

EPA also proposed an option to certify

detergent additives for use in

reformulated gasoline. However, as

discussed in more detail below, the

deposit-forming severity of that pool of

gasoline has not yet been sufficiently

characterized. Another proposed option

would have allowed detergent additives

certified for California gasoline to be

used in all PADD V gasoline, but for the

reasons discussed below in Section V,

EPA is not finalizing this option.

Nevertheless, California certifications

will be accepted for demonstrating

compliance with the certification

requirements of the Federal program in

California (see Section V). A proposed

second tier of detergent certification, to

ensure sufficient additization of the

most severe gasolines, is also not

finalized today. All these options and

the comments by the public on these

options are discussed further below.

It is important to understand that the

choice of a particular certification

option actually represents a choice as to

the test fuel in which a particular

detergent will be mixed when it

undergoes certification testing. (Test

fuel composition [severity] is an

important element in determining the

challenge to a detergent’s ability to

control deposits represented by

certification testing.) As a result of such

testing, a required minimum treat rate

(minimum recommended concentration

or lowest additive concentration) will be

established for the additive when used

in the type of gasoline represented by

the test fuel. In other words, the

certification of a detergent under a

particular certification option has the

result of setting a treat rate for that

detergent in the pool of gasoline covered

by the certification option. To say a

detergent has been certified under

several options merely means that the

detergent has undergone performance

testing in the context of several different

test fuels, each representing a different

option, and that different treat rate

requirements have thus been established

for the additive when used in the

different gasoline pools covered by

these options. The relationship between

certification options and test fuels is

discussed further in Section VI of this

preamble.

These options, when considered

together, provide a great deal of

flexibility to the fuel industry for

additizing gasoline. Of course, in each

situation, the industry must find the

optimal balance between the costs of

additional certification testing and the

potential opportunity to use reduced

additive amounts in particular gasoline

pools. Based on the number of

oxygenates listed in the discussion on

the oxygenates suboption below, there

are over 90 different combinations of

certification options and suboptions.

Table #IV–1 summarizes the categories

of options and suboptions.

TABLE #IV–1.—OPTIONS AND SUBOPTIONS FOR CERTIFICATION OF DETERGENT ADDITIVES

Options Suboptions

Nationwide Option ..... Generic Certification;*

Oxygenated;

Nonoxygenated;

Oxygenate-Specific;

Premium:

Oxygenated;

Nonoxygenated:

Oxygenate-Specific.

TABLE #IV–1.—OPTIONS AND SUBOPTIONS FOR CERTIFICATION OF DETERGENT ADDITIVES—Continued

Options Suboptions

PADD Option for

PADDs I, II, III, IV,

and V Outside California.

Generic Certification;

Oxygenated;

Nonoxygenated;

Oxygenate-Specific;

Premium:

Oxygenated;

Nonoxygenated:

Oxygenate-Specific.

Fuel-specific Option Parallels National and

PADD Specific Certification.

California Equivalency Per CARB Certification.

*Prescribed test fuel must contain 10% ethanol.

B. Single-Tier Certification System

In the NPRM, EPA proposed two

detergent certification tiers. The first tier

would target the deposit control

requirements of ‘‘typical’’ gasoline,

containing relatively moderate levels of

specified fuel severity factors (sulfur,

olefins, aromatics, and T–90). The

second tier was proposed as a means for

controlling deposit formation from the

most severe gasolines. A gasoline would

be identified as ‘‘most severe’’ when at

least one of the identified severity

factors in the gasoline was at or above

the 95th percentile of the distribution of

measured values for that parameter in

gasoline survey data. EPA proposed the

second tier certification because of the

concern that these most severe gasolines

might exceed the ability of the detergent

additive, at the concentration required

by the first tier, to control engine

deposits at the required level. EPA was

particularly concerned about the

possibility that some motorists might

consistently choose to use the same

brand of gasoline, which might happen

to be the most severe brand of gasoline

available in an area. Used perennially,

these most severe gasolines could

exceed an additive’s ability to control

deposits and lead to much higher motor

vehicle emissions and driveability

problems for those motorists.

As proposed, the additive

manufacturers would certify their

additives to the second or more severe

tier through the use of test fuels

containing higher concentrations of the

gasoline severity parameters. The

expected results would be higher

additive treat rate requirements for the

high-severity gasolines. Detergent

blenders would be responsible for

testing their gasoline on a weekly or

batch-by-batch basis to characterize the

severity of their gasoline using specified
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35323

test methods. Then, if the gasoline

exceeded the 95th percentile of the

gasoline severity distribution created

from survey data, the fuel blender

would have to additize its gasoline at

the concentration prescribed for the

high-severity gasoline pool.

Comments submitted by both the oil

and automobile industries were

opposed to the two-tier scheme for

additizing gasoline. These comments

and other available information suggest

that only rarely will particular service

stations or localities continually be

supplied with only the most severe

additized gasoline. More often, the

impact of severe gasolines will be

moderated by the consumer’s

subsequent use of less severe gasoline.

Furthermore, a review of PADD-specific

gasoline survey data suggests that

gasoline which may be labeled severe

because of high levels of one or two

severity factors may have relatively low

levels of the other severity factors. Thus,

the incremental testing, monitoring, and

recordkeeping requirements that would

be needed on a regular basis to address

the relatively rare instances in which

the impact of very severe gasoline might

be significant and long-lasting do not

seem warranted. EPA concludes that the

potential benefits of a second tier of

detergent additive certifications for

severe gasolines are uncertain, and do

not justify the incremental costs and

burdens. This final rule, therefore, is

based on a single-tier certification

approach. A complete description of the

public comments on this issue and

EPA’s associated analysis are contained

in Section IV of the Summary and

Analysis of Comments document.

C. Geographical Certification Options

1. National Certification. To obtain a

national certification, the certifier must

demonstrate a detergent additive’s

compliance with the performance

standards through testing with specified

test fuel(s) based on characteristics of

the national gasoline supply (see

Section VI). The LAC established under

a generic national certification option

will be valid for use of the detergent in

any type of gasoline, oxygenated or

nonoxygenated, unleaded or leaded, of

any octane grade, that is sold in the

United States, including imported

gasoline. However, California fuel

marketers should be aware that CARB

requires detergents used in California

gasoline to comply with CARB detergent

certification requirements, and that a

detergent certified under the Federal

program may or may not also satisfy

CARB’s certification requirements.

Therefore, parties additizing gasoline for

sale in California must ensure that they

are in compliance with both the Federal

and CARB detergent programs (See

Section V for the applicability of a

CARB certification in meeting Federal

detergent requirements).

The test fuel for the generic national

certification option must contain four

specified severity parameters at no less

than the 65th percentile of the national

survey data, and must be blended with

ethanol to 10 percent of the final

blended volume. As described in more

detail in Section VI, ethanol was chosen

for the generic test fuel because the

available data shows that it tends to

have a greater impact on depositforming tendency than the other

oxygenates. Using different test fuels,

national certification can also be

obtained for a variety of subpools of the

national gasoline supply (e.g.,

oxygenated versus nonoxygenated,

premium, and combinations of these

pools). These suboptions are further

discussed below.

EPA proposed the national

certification option and suboptions to

provide a broadly applicable method to

certify a detergent. EPA anticipates that

many major gasoline marketers will use

the national certification option because

of the simplicity of blending one

concentration of detergent additive in

all the fuel manufacturers’ gasoline

across the nation. In their comments on

the proposed rule, the refining industry

supported the national option and

stated that most of its member

companies would probably use this

option.

2. PADD Certification. As described

above, the prescribed additive treatment

levels under the national certification

option are based on a spectrum of

nationwide gasolines. As a result, for

some pools of relatively low-severity

gasoline distinguished by their

geographical location, the national

option may cause more additive to be

used than necessary to maintain the

required level of deposit control

performance. Thus, additive costs might

tend to be higher than necessary for

those pools of gasoline. EPA’s analysis

of the distribution of gasoline severity

factors showed that the composition of

gasoline sold tends to differ between the

various PADDs of the United States.

This difference probably results from

the varying sources of crude oil and the

differences in crude processing

capabilities among the refineries in each

PADD, and the relatively consistent

pattern of gasoline production and

distribution within the PADDs.

Given these fuel compositional

differences between the PADDs, EPA

proposed, and is now finalizing,

detergent additive certification options

applicable to the gasoline sold within

each PADD. A PADD certification can

be obtained by demonstrating

compliance with the performance

standards through testing on a specified

test fuel(s) based on the characteristics

of the gasoline sold in the given PADD.

As summarized in Table #IV–1 above,

the PADD certification option parallels

the national certification option in that

there are opportunities for a generic

PADD certification or certification

under specified suboptions.

A PADD certification pertains to the

additive treat rate requirements for the

gasoline sold to retail outlets, wholesale

purchaser consumers (WPC), or to the

ultimate consumer within a PADD, no

matter where the gasoline may have

been refined or additized. This reflects

the fact that the PADD certification test

fuels are defined according to survey

data of gasoline sold at retail outlets

within the PADD, not gasoline produced

or additized within the PADD. For a

detergent blender who commonly

distributes detergent-additized gasoline

across PADD lines, and who wishes to

have full flexibility as to the destination

of each batch of additized gasoline, a

detergent with a national certification

would probably be more appropriate

than a detergent subject to the use

restrictions of a PADD certification. Use

of a PADD-certified detergent will be

most practical when the downstream

distribution networks from a given

blending facility terminate within a

single PADD, or when a detergent

blender is willing and able to

implement control systems to ensure

that gasoline blended with a PADDcertified detergent will end up at a retail

outlet within the appropriate PADD.

A PADD V certification is applicable

only to the PADD V states other than

California. Accordingly, the required

test fuel is based on gasoline survey data

collected from PADD V excluding

California. This is appropriate because

California Phase II reformulated

gasoline is expected to be much less

severe than gasoline available elsewhere

in PADD V (see Section V).

PADD certifications are likely to be

sought only when the respective

certification test fuel specifications will

result in a lower minimum detergent

treatment rate requirement than under a

national certification, i.e. for PADDs

with less severe gasoline. In the more

severe PADDs, i.e., those in which the

gasoline supply tends to have higher

levels of deposit-forming characteristics

than the national supply, the PADD

certification test fuel specifications

would result in higher treatment

requirements. Thus the national

certification option would likely be
35324 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

14 However, this provision of the final rule does

not affect the potential availability of a special

exemption for certain territories under CAA section

325. Section 325 provides that, upon petition by the

respective governor, the Administrator is

authorized to exempt any person or class of persons

in certain territories (Virgin Islands, Guam,

Commonwealth of the Northern Marianas Islands,

and American Samoa) from certain requirements

under the CAA, including the gasoline detergency

requirements. Such an exemption may be granted

if the Administrator finds that compliance with a

regulatory requirement is not feasible or is

unreasonable due to unique geographical,

meteorological, or economic factors within a given

territory, or such other local factors as the

Administrator deems significant. Puerto Rico is not

included among the territories permitted to petition

the Agency for an exemption under the provisions

of Section 325.

chosen. This raises a potential concern

that gasoline in relatively severe PADDs

might receive inadequate amounts of

additive.

For this reason, the generic national

test fuels have been designed to

represent greater than average depositforming conditions. For example, as

explained in detail in Section VI, this

final rule specifies that each test fuel

must contain the fuel severity factors at

no less than the 65th percentile in the

respective fuel survey distribution. Only

a very small proportion of the gasoline

sold in the United States contains the

combination of all four of the fuel

severity parameters at levels this high or

higher. Other approaches for assuring

adequate deposit control in the more

severe PADDs were also considered by

EPA in the NPRM. As already discussed

above, one option would be to apply a

second level of additization based on

severity for national or PADD

certification, which would be triggered

by a high level of one or more severity

parameters. For the reasons discussed,

this approach was not followed in this

final rule. Under another alternative, the

national certification would be

abandoned and only PADD-based

certifications would be allowed. This

alternative was not pursued because

EPA judged it would multiply the costs

of certification and recordkeeping

without sufficient additional benefit. In

a third alternative, national certification

would still be allowed, but the

specifications on national test fuel

severity would be increased to provide

additional assurance of adequate

stringency for all PADDs. Due to the

wide support expressed for the

proposed option in the comments, the

lack of support for these other

alternatives, and a desire to limit

certification testing and additization

costs to levels that are offset by

concomitant benefits, EPA has decided

to finalize the proposed methods of

national and PADD certification, and to

omit the alternatives considered.

EPA believes that the PADD option in

conjunction with the national

certification option will give the

regulated industry a high degree of

flexibility toward optimizing the

amount of detergent additive used in

fungible gasoline while ensuring

adequate additization under either

option. The choice for each certifier of

what combination of PADD and national

certifications to undertake will be made

according to the characteristics of the

certifier’s particular refinery,

distribution, or marketing network,

weighing the additional cost of

certification in multiple areas against

the potential savings (or competitive

advantage) of achieving a lower certified

LAC.

3. U.S. Territories. This final rule

requires gasoline sold in U.S. territories

to be additized at the concentration

required under the national certification

option. In the NPRM, EPA

acknowledged that its information on

gasoline severity and distribution

networks was insufficient to propose

that a territory may be additized

consistent with the requirements of a

particular PADD. Comment was

requested on whether it would be

appropriate to include U.S. territories

under a PADD certification option and

how territories could be appropriately

assigned to the various PADDs. EPA

also requested comment on whether

special circumstances affecting gasoline

supply, distribution, or marketing might

make compliance with these rules

unreasonably burdensome in some or all

of the territories and whether special

provisions should apply or if these

territories should be exempted.

EPA did not receive any response to

the request for comments and has not

obtained additional information which

would help determine if the gasoline

sold in any of the territories is

consistent with any specific PADD.

Thus, the final rule requires gasoline

sold in U.S. territories to be additized

with a nationally certified detergent at

the appropriate level.14 This will ensure

a high level of deposit control

protection in these territories. In the

NPRM, EPA identified the following

U.S. territories: Virgin Islands, Guam,

the Commonwealth of the Northern

Marianas Islands, and Puerto Rico.

American Samoa was inadvertently

omitted from this list, and is now

properly noted as a U.S. territory and

therefore subject to Federal gasoline

detergency requirements.

4. Certification Sub-Options.

a. Nonoxygenated Gasoline

Certification Option. The data presented

in the NPRM on the fuel parameters that

impact deposit-forming severity indicate

that the addition of oxygenates such as

ethanol and MTBE tends to increase the

amount of additive required to maintain

the desired level of deposit control

protection. Thus, the generic

certification approach, based on test

fuels containing oxygenate at the

maximum percentage, may lead to

overadditization of nonoxygenated

gasoline. Thus, EPA is permitting the

separate certification of detergents for

nonoxygenated gasolines, using

appropriate nonoxygenated test fuels.

This suboption can be used in

conjunction with the national and

PADD options, the fuel-specific option,

and the premium fuel suboption.

b. Oxygenate-Specific Certification

Option. A generic national or PADD

certification option based on ethanolblended test fuels may require higher

additive blend concentrations and

higher costs than necessary for gasolines

blended with oxygenates other than

ethanol. Thus, EPA is allowing specific

certification of additives based on

testing with fuels containing other

oxygenates. Examples of such other

oxygenates include ethyl tertiary butyl

ether (ETBE), tertiary amyl methyl ether

(TAME), tertiary amyl ethyl ether

(TAEE), tertiary hexyl methyl ether

(THME), diisopropyl ether (DIPE), and

tert-butyl alcohol (TBA). Like ethanol,

the concentration of these oxygenates in

the test fuels shall be at the maximum

concentration allowable in commercial

gasoline. However, while a detergent

certified with a test fuel containing

ethanol can be used in gasoline

containing any other oxygenate or no

oxygenate, oxygenate-specific

certification will be a use-restricted

certification option. For example, the

minimum additive concentration

determined through performance testing

with MTBE-blended test gasoline will

be applicable only to gasoline blended

with MTBE, or without any oxygenates.

EPA requested comment on the

potential benefits, problems, and costs

of either providing for or requiring a

separate certification for oxygenated and

nonoxygenated fuels, and on the

appropriate specificity regarding the

oxygenate to be used in certification

testing. In particular, EPA requested

comment on the potential difficulties

and costs associated with differentiating

oxygenated and nonoxygenated

gasolines for enforcement purposes. The

oil industry supported the options to

certify additives for use in gasoline

containing specific oxygenates, or for

use in gasoline without oxygenates. The

ethanol industry disputed the notion

that ethanol is more deposit-forming

than the other oxygenates. In addition,

they expressed concern that many
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35325

deposit control additives are not soluble

in ethanol, thus restricting ethanol

blender choices for additizing ethanol

blends. They further contended that fuel

manufacturers and blenders may not be

willing to continue using ethanol if they

are placed at economic risk in case of

disruption in the supply of the

appropriate detergent additives

available to them. EPA evaluated the

available data on the solubility of

detergent additives in ethanol-gasoline

blends and determined that, even

though some detergent additives may

not be soluble in pure ethanol, most (if

not all) are soluble in the 10 percent and

lower ethanol blends currently being

produced.

The ethanol industry also commented

that fuel blenders who blend ethanol

into gasoline would be precluded from

doing so if the gasoline is already

blended upstream with a detergent

additive that is either not certified for,

or not used in sufficient amount to

account for, the addition of ethanol.

This final rule requires incremental

additization when ethanol is added to

previously additized gasoline, as

proposed, but to address the ethanol

industry’s concern, the rule permits a

different detergent to be used than the

one already present in the gasoline. The

amount of incremental detergent must

be sufficient to account for the increase

in base fuel severity caused by the

presence of ethanol, as well as the

detergency requirements of the added

ethanol volume itself. To allow the

proper amount to be determined, the

newly added detergent must be one

which has been certified both for

nonoxygenated gasoline and for ethanolblended (generic use) gasoline. The

proper incremental amount can then be

computed based on the different rates

required under the two certifications.

Additional discussion of this issue and

similar ‘‘cures’’ for other use restrictions

can be found in Section VIII of this

preamble.

c. Premium Grade Certification

Option. An analysis of AAMA fuel

survey data in the NPRM showed that

premium gasolines, defined as having

an octane rating of $91 (R+M)/2, tend to

have lower olefin content, sulfur

content, and T–90 than regular and

intermediate grade gasolines. Of the four

pertinent nonoxygenated fuel

parameters, only aromatic content is

higher in the premium grade. This

suggests that premium fuels may require

a lower concentration of detergent

additive to maintain the same level of

deposit control performance.

Based on these compositional

differences, EPA expects that a separate

detergent certification suboption for use

in premium gasoline within the national

and PADD certification options would

allow the industry to reduce costs by

reducing the amount of additive

required. The oil industry supported the

premium suboption in their comments

on the NPRM. Thus, the final rule will

allow certification of additives for use in

premium gasoline.

d. Reformulated Gasoline Certification

Option. The Federal RFG regulations (59

FR 7716, February 16, 1994, 40 CFR

80.40) require changes to gasoline in

certain areas where the national ambient

air quality standard for ozone is not

being met, and these changes may

potentially affect the deposit forming

tendency of these gasolines. The first

phase of the RFG requirements, which

took effect January 1, 1995, is expected

to cause a small reduction in some or all

of the four deposit-forming severity

factors, although the oxygenate that the

program requires to be blended into

RFG could counter the potential fuel

severity benefits. However, the effect of

oxygenates must be considered for all

fuels under the detergents program and

is therefore not a particular concern

with respect to RFG. Beginning in the

year 2000, more stringent RFG fuel

reformulation requirements will take

effect, and may result in more

substantial reduction in depositformation severity (mainly, a large

sulfur reduction).

Anticipating that RFG may cause

changes in gasoline severity, EPA

considered including a separate

detergent certification option for use in

RFG. In the NPRM, EPA proposed the

adoption of either a required or optional

RFG certification option and asked for

comments on these potential options.

The oil industry favored a separate RFG

option as long as it was not required.

However, EPA recognizes that sufficient

RFG survey data is not yet available for

differentiating the deposit-forming

tendency of RFG from conventional

gasoline, or from which to establish test

fuel specifications for an RFG test fuel.

When additional data becomes

available, the Agency intends to review

the RFG severity parameter levels and

compare them to other pools of gasoline.

If a review of the survey data shows that

there is indeed a significant difference

in the severity of RFG, EPA may

propose an RFG option in a future

rulemaking. In the meantime, additives

may be certified with a separate treat

rate for RFG based on a refinery’s own

segregated RFG pool using the

procedures put into place for the fuelspecific certification option. Otherwise,

additives which are certified under any

geographic option may be used in RFG

at the certified treat rate.

5. Recertification Requirements. In the

NPRM, EPA discussed a possible

mechanism whereby national or PADD

recertification could be required if the

composition of the gasoline pool in

question changed sufficiently to bring

the adequacy of deposit control into

question. For this purpose, EPA would

monitor trends in the composition of the

respective gasoline pools, and would

periodically recalculate the national and

PADD percentile concentration values

for the relevant parameters. A need for

recertification would be indicated if the

newly calculated 50th percentile level

of any one of the monitored fuel

parameters was greater than or equal to

the 60th percentile level in the original

fuel survey data.

However, to require recertification

under the national and PADD

certification options would entail the

adoption of new test fuel specifications,

which would most appropriately occur

through a subsequent rulemaking. Thus,

today’s rule does not include any

provisions that would automatically

trigger national or PADD-based

recertification requirements. If EPA

should determine in the future that

gasoline composition has shifted to such

an extent to suggest that detergents

certified pursuant to the test fuel

specifications in today’s final rule may

no longer provide sufficient deposit

control protection, then EPA will

publish a public notice that explores

potential recertification requirements

and seeks public comment.

D. Fuel-Specific Certification Option

1. General Description. The fuelspecific certification option proposed in

the NPRM is also being finalized in

today’s rule. This option provides fuel

and additive manufacturers an

opportunity to tailor certification test

fuels and subsequent detergent additive

treat rate requirements to the unique

characteristics of segregated pools of

low-severity gasoline. These special

gasoline pools may be produced from

inherently mild crude oil or, in other

cases, from refinery practices that

reduce the deposit-forming tendency of

the gasoline. Such gasoline may require

reduced concentrations of detergent

additives to meet the detergency

requirements. Reduced additive

concentrations, when multiplied by the

large volume of gasoline that is

produced, could provide a refiner or

other fuel manufacturer with a

substantial savings in additive costs. To

take advantage of this opportunity,

however, the fuel manufacturer must be

able to segregate its special gasoline

pool(s) from the general fuel supply

until the gasoline has been blended with
35326 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

15A detailed comparison of the CARB and

Federal detergent programs is included in the

Summary and Analysis of Comments.

the detergent additive specifically

certified for use in this fuel. Once

properly additized, the gasoline need

not be segregated from other additized

gasoline.

The fuel-specific option requires

demonstration of the deposit control

performance standards through testing

of a detergent additive in a test fuel that

is representative of the subject

segregated gasoline pool. To determine

the composition and characteristics of

the segregated pool, certifiers are

required to measure the concentrations

of aromatics, olefins, and sulfur in the

gasoline, as well as the T–90 distillation

point. These parameters are to be

measured at least once per month over

a twelve-month period at each refinery

or other facility contributing to the

defined gasoline pool, and a percentile

distribution of these defining

characteristics is to be constructed. A

fuel sample, located from within the

defined pool or blended from the

refinery blendstocks normally used to

manufacture this pool, and containing

each of the parameters at a level no less

than the 65th percentile value of the

entire pool, is then required to serve as

the test fuel (see Section VI.B., below,

and § 80.164(c)(2)).

Fuel-specific certification is

fundamentally different from all other

certification options, in that the precise

test fuel specifications are defined by

the certifier (under prescribed

procedures) rather than defined by EPA

and codified in the regulations. Thus,

the certifier under the fuel-specific

option must be a person who has access

to and control over the subject gasoline

supply. Frequently, this will be the

refiner or other fuel manufacturer. EPA

anticipates cooperation between

additive and fuel manufacturers in

implementing the fuel-specific option.

The additive manufacturer retains

responsibility for (1) the registration of

its detergent additive, and (2) proper

labeling of the additive as use restricted.

In this instance, however, it may be the

fuel manufacturer, or another party with

title to and access to the segregated fuel

supply, who takes responsibility for

certification instead of the detergent

manufacturer.

Use of a detergent under the

conditions of a fuel-specific certification

is restricted only to the defined pools of

gasoline produced by or distributed

from the facilities included in the fuel

composition survey. Furthermore, as

described in detail below, the

certification will become invalid if the

composition of the subject gasoline pool

changes beyond a prescribed amount.

2. Variants. The fuel-specific option,

like all other certification options, gives

registrants the flexibility to certify with

non-oxygenated, oxygenated, and/or

oxygenate-specific test fuels. Data

indicates that non-oxygenated fuels

have a lower deposit forming tendency

than oxygenated fuels and thus require

lower concentrations of detergent

additives to provide deposit control.

Furthermore, because the depositforming tendency of oxygenated fuels

varies from one oxygenate to the next,

some oxygenated fuels may require a

lower additive concentration than

others. As mentioned previously,

substantial savings could result from

tailoring the detergent concentration

requirements to the deposit-forming

characteristics of the fuel. Accordingly,

fuel manufacturers using the fuelspecific option may further optimize

their detergent use by certifying under

one or more oxygenate-related

suboptions. These suboptions are

implemented for fuel-specific

certification in the same manner as for

national or PADD certifications.

EPA is also aware that some gasolines

have such extremely low depositforming tendencies that they may

require only a PFID control additive or,

perhaps in some cases, no detergent

additive at all. In these special

situations, certifiers may provide EPA

with PFID and IVD test results under the

fuel-specific option to demonstrate that

a deposit control additive is not

necessary for deposit control.

3. Monitoring and Recertification

Requirements. The certifier under the

fuel-specific option is required to

monitor fuel composition on a monthly

basis, and must provide an annual

report to the Agency on the composition

of the gasoline covered by the

certification and how the composition

deviates from baseline data.

Recertification will be required if the

composition of the gasoline pool

changes such that the new 50th

percentile concentration of any nonoxygenate fuel parameter (i.e. aromatics,

olefins, sulfur, or T–90) exceeds the

60th percentile concentration reported

in the original certification letter. New

percentiles are calculated on an annual

basis using the last 12 months of data.

If the baseline percentile level is

exceeded, the detergent blender will be

required to stop using the fuel-specific

detergent until recertification is

complete and, in the meantime, must

substitute either a national or

appropriate PADD-certified additive

within 45 days of the certification

renewal date on which the

recertification became necessary to

avoid a violation. The fuel-specific

detergent may have also been certified

under the national or PADD certification

options. If so, the same detergent

additive may be used at the appropriate

national or PADD-certified treat rate.

V. CARB Certifications

A. Background

Section 211(c)(4)(A) of the Clean Air

Act generally prohibits states from

adopting their own state fuel programs

to control motor vehicle emissions, once

EPA has regulated a fuel characteristic

or component under 211(c)(1). EPA’s

adoption of a Federal deposit control

additive program would therefore

preempt certain state fuel programs.

However, section 211(c)(4)(B) clarifies

that the state of California is not subject

to this prohibition. CARB has in fact

implemented a detergent additive

certification program effective January

1, 1992 (Title 13, Section 2257 of the

California Code of Regulations). EPA

determined that a CARB detergent

certification would provide adequate

demonstration that a detergent could be

used to meet Federal detergent

performance requirements under the

Federal interim program.15

To ensure that the CARB detergent

program would continue to provide a

level of deposit control protection

equivalent to that of the Federal

program, once the Federal certification

program was implemented, the Agency

proposed that the applicability of a

CARB detergent certification would be

limited to gasolines sold in PADD V.

EPA’s judgment that CARB-certified

detergents would provide adequate

deposit control performance in all

PADD V gasolines was based on the

similarities in the gasoline composition

(and hence deposit forming tendency)

between California and the rest of PADD

V, and the similarities between CARB’s

and the proposed Federal deposit

control performance requirements. EPA

proposed that PADD V gasoline

additized with CARB-certified

detergents (CARB-based PADD V

certification) would be subject to the

same use restrictions as gasoline

certified under the other PADD-specific

options.

Public comment was in agreement

with EPA that, for California gasoline, a

CARB-certified detergent would provide

at least as effective deposit control as a

detergent meeting Federal detergent

certification requirements. However,

commenters disagreed with each other

on the extent to which a CARB-certified

additive could be used to satisfy Federal

requirements for non-California

gasoline. The automotive industry
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35327

stated that CARB-certified detergents

would not provide adequate deposit

control protection for non-California

gasolines because of differences in fuel

composition, particularly under CARB’s

Phase II reformulated gasoline

requirements. Some commenters from

the petroleum industry supported the

applicability of a CARB certification

within PADD V, while others stated that

a CARB certification should be

applicable nationwide provided that

CARB certification fuel parameter levels

meet EPA requirements. Other

commenters stated that a CARB

certification should be accepted

nationwide in order to avoid the

economic burden on small and

independent refiners which would

result from being required to meet two

sets of certification requirements.

B. Applicability of CARB Equivalent

Certification

To determine the appropriate

applicability of the CARB certification

program, EPA compared the level of

deposit control protection which will be

provided under the Federal detergent

certification program finalized today to

that provided under CARB’s program

(see the Summary and Analysis of

Comments for an extensive discussion).

In conducting this analysis, EPA

compared the performance standards,

test procedures, and test fuels of the two

programs, and concluded that they were

sufficiently similar to ensure that the

use of a detergent certified under

CARB’s current detergent program in

California gasoline will provide at least

as effective deposit control as a

detergent meeting Federal certification

requirements. However, implementation

of California Phase II RFG requirements

has greatly widened the compositional

differences between California and nonCalifornia gasolines. A detergent

certified for the relatively low-severity

conditions of California Phase II

gasoline can no longer be expected to

provide adequate deposit control in

gasoline in the other PADD V states or

elsewhere in the nation. Thus, EPA will

accept data which supports a valid

CARB detergent certification as

sufficient demonstration that a detergent

additive is capable of satisfying Federal

gasoline detergency performance

standards for CARB phase II RFG, but

not for non-California gasolines.

Certain changes proposed by CARB

for its detergent program would, if

implemented, serve to make the two

certification programs even more

similar. However, if CARB should

implement other, unanticipated

changes, then EPA would evaluate

whether such changes would reduce the

acceptability of CARB-certified

detergents in meeting Federal gasoline

detergency requirements, and would

propose changes to these applicability

provisions through another rulemaking

if warranted.

To ensure that a CARB-certified

detergent is only used to meet Federal

detergency requirements in California

phase II RFG, the gasoline must be

additized in California, or sold or

dispensed to the ultimate consumer in

California (or to parties who sell or

dispense to the ultimate consumer in

California), or both. Some commenters

suggested that EPA should allow CARBcertified detergents to be used in

gasoline sold in all PADDs, provided

that the severity parameter levels in the

gasoline did not exceed the severity

limits in the CARB certification. EPA

believes this approach is not feasible,

since it would require a complex set of

fuel composition monitoring

requirements similar to those proposed

under the two-tier certification scheme

(see Section IV.B) which the Agency has

determined would not be cost effective.

EPA does not believe that requiring all

gasoline sold outside of California to

meet Federal detergent certification

requirements would cause significant

financial hardship to smaller gasoline

marketers, as some commenters

suggested. The costs to these marketers

of using a CARB-certified detergent

would be similar to the costs of using a

Federally certified detergent, and the

necessary infrastructure is likely to exist

already in the fuel marketers’ facilities

outside of California due to their

obligation to comply with the interim

Federal program. EPA believes that use

of CARB-certified detergent additives in

non-California gasolines would not

provide adequate deposit control

protection. Thus, to allow small

gasoline marketers to use CARBcertified detergents in non-California

gasolines could significantly reduce the

emissions control benefits of this

program.

VI. Certification Test Fuels

A. National and PADD Certification

Test Fuels

1. Proposed Test Fuel Requirements.

Under the proposed certification test

fuel requirements, testing to

demonstrate detergent additive

effectiveness would be conducted using

test fuels containing specified levels of

five parameters (olefins, sulfur,

aromatics, T–90 distillation point, and

oxygenate content) that have been

shown to affect gasoline deposit-forming

tendency. The minimum levels of these

severity factors in the test fuels

proposed for each certification option

corresponded with values at the 55th to

65th percentiles of the 1989–1991

AAMA fuel survey data for the gasoline

pool covered by the certification option

in question (e.g., national, PADD,

premium, etc.).

EPA also discussed in the NPRM its

concerns that the specified level of these

fuel severity factors may not completely

define a gasoline’s deposit-forming

severity. If this were the case, detergent

certifiers might blend certification test

fuels that contained the required levels

of the fuel severity factors, but

nevertheless were not representative of

in-use gasoline deposit forming

tendency. To help account for unknown

factors in gasoline composition that

might affect fuel severity, EPA proposed

that gasoline samples for certification

testing must be drawn from normal

production gasoline stock (finished

commercial gasoline) taken from

normally operating refinery and/or

terminal facilities. In addition, the test

fuels required for each certification were

to be drawn from separate production/

distribution facilities in different areas

of the nation. This requirement would

tend to increase the certainty that

unknown severity factors would be

represented by ensuring that various

refinery stocks were tested, and would

act as a screen to prevent the use of

inappropriately mild (i.e., low depositforming severity) fuels. It would also

serve to limit the opportunity to select

test fuels from refineries that, for

unidentified reasons, tend to produce

gasoline with a relatively low depositforming tendency. To ensure that the

certification process accounts for any

interactive effects between detergent

additives and non-detergent additives,

EPA proposed that the type and

concentration of non-detergent additives

in the certification fuels must not differ

in any way from the fuels that are

dispensed to the ultimate consumer.

EPA recognized in the NPRM that it

could be difficult for an additive

certifier to locate a single finished

gasoline which contained all four

nonoxygenate severity factors at the

required levels. To reduce this difficulty

while ensuring adequate test fuel

severity, EPA proposed that testing for

each certification option be conducted

using a matrix of four test fuels, each

containing a different combination of

two of the nonoxygenate severity factors

at levels no less than the required 55th

to 65th percentile values. Alternatively,

additive certifiers could perform testing

in as few as two fuels, as long as each

of the severity parameters was present at

the required levels in at least one such

fuel.
35328 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

16 Memorandum to the docket from David Swain,

OMS, entitled ‘‘Data Review of Intake Valve Deposit

Weights for Detergent Certification Fuel Screening’’,

Docket item IV-B–07.

17 It should be noted that the 5,000-mile deposit

demonstration test, in addition to its technical

shortcomings, would save only about 25 percent of

the cost of a 10,000-mile test.

The proposed minimum of two test

fuels was believed to be necessary to

account for the deposit-forming

tendency of oxygenates. EPA proposed

that one of the test fuels would be

required to contain 10 volume percent

ethanol, and another would be required

to contain 15 volume percent MTBE.

These oxygenates were selected for

testing because they were expected to

have the most significant impact on

gasoline deposit-forming tendency of

the oxygenates within their respective

oxygenate classes (alcohols and ethers),

and because they were expected to be

the two most widely used oxygenates.

EPA also proposed that certification

test fuels be contained in new, sealed

containers during transportation and

storage and that these fuels could be

stored no longer than one full year from

when they were drawn from the refinery

before testing.

2. Final Test Fuel Requirements.

a. Test Fuel Source and Screening

Requirements. In response to the NPRM,

commenters stated that finding finished

fuels that met the test fuel

compositional specifications would be

extremely burdensome and impractical,

and that EPA should instead allow the

use of refinery blendstocks to formulate

certification fuels. To ensure that test

fuels were not inappropriately mild,

they stated, test fuel blenders could be

required to provide EPA with

documentation of the source and

identification of all of the refinery

blendstocks used, as well as the fuel

parameter levels in the finished test

fuel. Finally, they stated that the

finished test fuel should be required to

conform to ASTM D 4814, for

commercial gasolines. In combination,

the commenters felt that this

information should alleviate EPA’s

concern about using blendstocks for

formulating test fuels.

EPA acknowledges that the proposed

requirement that test fuels be drawn

from finished gasoline stock is a

burdensome one. However, the ideas

raised by the oil industry, while

somewhat helpful, are not sufficient to

prevent intentional manipulation of test

results, or to ensure that test fuels will

adequately represent the depositforming severity of in-use gasoline.

Thus, in the Reopening Notice, EPA

asked for comment on other potential

approaches to ensure the adequacy of

test fuels if they were created from

refinery blendstocks (see Summary and

Analysis of Comments), and has

finalized one of these approaches in

today’s rule. Specifically, the final rule

requires that, to be eligible as a test fuel,

a candidate nonoxygenated, unadditized

fuel must be tested to demonstrate its

severity by causing the formation of at

least a specified level of IVD in a 10,000

mile BMW test.

In its comments, API stated that

increasing the required number of

expensive BMW tests just for this

purpose would be cost-ineffective and

unnecessary. However, most other

commenters supported EPA’s proposed

demonstration test. Some commenters

stated that, if a performance severity test

were established, it should be the

exclusive requirement for test fuel

qualification, and that fuel parameter

requirements should be dropped. Other

commenters stated that if such a test

were established, it should be allowed

as an alternative to meeting fuel

parameter requirements in qualifying

test fuels for certification testing

purposes.

EPA believes that the performancebased approach for qualifying test fuels

provides a practical and effective way to

screen out test fuels of inappropriately

low deposit-forming severity that

otherwise conform to compositional

specifications. Thus, this final rule

allows the use of refinery blendstocks

for formulating test fuels, provided that

the unadditized test fuel severity is

demonstrated by IVD testing. If test fuels

are drawn directly from finished

gasolines, they do not have to undergo

severity demonstration testing to qualify

for use in certification tests.

EPA disagrees with the comment that

a test fuel deposit demonstration

criterion will not be cost-effective. In

the absence of this assurance, EPA

cannot be confident that test fuels

created from refinery blendstocks will

be adequate to assure proper

additization of the in-use gasoline to

achieve the emission reduction goals of

the detergent certification program. In

comparison with the original proposal,

which would have required detergent

certification testing to be conducted in

up to four specified test fuels, each to

be located from normal finished fuel

supplies, the cost of a single

demonstration test for a batch of test

fuel is modest. Furthermore, the costs

for test fuel blending and IVD

demonstration testing can be shared. For

example, a testing laboratory can qualify

a large quantity of test fuel and then use

it for certifying multiple detergent

additives. In these and other ways, the

costs associated with the test fuel IVD

demonstration requirements can be

spread over a large number of detergents

or companies. Thus, EPA believes that

the test fuel deposit demonstration

requirement is reasonable and

necessary, and that it can be met in a

very cost-effective manner.

EPA also disagrees with the comment

that certifiers should be given the option

to qualify test fuels either by meeting

the requirements of the IVD

demonstration test or by meeting the

test fuel compositional criteria, rather

than being required to satisfy both. The

fuel parameter specifications are

necessary to set the overall stringency of

the test fuel and to provide reasonable

assurance that the composition of the

deposits formed is representative of

deposits that result from in-use gasoline.

The deposit demonstration test is

necessary to confirm that the level of

stringency prescribed by the fuel

parameter specification has been

achieved. Thus, both types of test fuel

criteria are necessary to assure the

validity of subsequent detergent

certification testing.

EPA received varied comments

regarding an appropriate qualification

standard, i.e., the minimum amount of

IVD that the unadditized test fuel must

generate during the demonstration test

in order to qualify for use in detergent

certification testing. Suggestions ranged

from 175 mg of deposit formation per

valve up to 500 mg per valve. To resolve

this issue, EPA reviewed available BMW

IVD test data on unadditized test fuels.16

Tests on gasoline of ‘‘typical’’ depositforming tendency, i.e., containing fuel

severity factors at generally lower levels

than required in the detergent

certification test fuels and more

representative of average severity

gasolines, were selected as the subject of

this study. The results of this analysis

showed that a typical unadditized

nonoxygenated fuel can generally be

expected to produce approximately 290

mg of deposits over the accumulation of

10,000 miles in a BMW test. Uncertainty

in the 5,000 mile test data precluded

EPA from considering a standard based

on that shorter test.17

Based on this analysis, the final rule

requires the accumulation of at least 290

mg of IVD using unadditized,

nonoxygenated fuel, during the 10,000

mile BMW test, for qualifying base test

fuels for the national certification

option. The same standard will apply to

PADD certifications in those PADDs

where the IVD severity factor

distributions tend to be similar to or

higher than the national levels (PADDS

I and III). For the other PADDs

characterized by fuels which tend to
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35329

18 ASTM D 4814–95c, ‘‘Standard Specification

for Automotive Spark-Ignition Engine Fuel’’, 1995,

is incorporated by reference in 40 CFR 80.164.

19 See the extensive discussion in the NPRM, the

memorandum to the docket entitled ‘‘Data Review

of Intake Valve Deposit (IVD) Weights for

Detergents Certification Fuel Screening’’, by David

Swain, OMS (Docket item IV–B–07), and the

Summary and Analysis of Comments.

have lower levels of severity factors

most related to IVD formation, the

standard is adjusted downward by 10

percent. For the premium certification

test fuels, the standards are reduced an

additional 10 percent below the

respective all-grade test fuels. Thus, to

qualify for generic certification testing

in PADDs II, IV, and V (excluding

California), the unadditized,

nonoxygenated test fuels must

demonstrate a minimum accumulation

of 260 mg of IVD (i.e., 90 percent of 290

mg) in a 10,000 mile BMW test. The 260

mg standard also applies to the

premium option at the national level

and in PADDs I and III. For the

premium option within PADDs II, IV,

and V (excluding California), test fuels

meeting the applicable nonoxygenate

fuel parameter levels must accumulate

at least 235 mg of IVD (i.e., 90 percent

of 260 mg). These IVD demonstration

criteria are expected to achieve the goal

of the IVD demonstration test while

ensuring that the applicable fuel

parameter specifications remain the

primary contributor to test fuel severity.

At the discretion of the certifier, the IVD

severity demonstration test may be

terminated at fewer than the 10,000

miles specified in the test procedure.

However, the IVD demonstration criteria

specified above (for the 10,000 mile test

length) must be satisfied for the test to

qualify for certification purposes. Once

the engine has been disassembled to

examine the IVD (other than by

removing the fuel injectors for

boroscope inspection) the test must be

terminated.

The IVD demonstration is to be

conducted on base test fuels, i.e., fuels

which conform to the specified

nonoxygenate severity factor

requirements, but do not contain

oxygenate (or detergent). Once qualified

for use in certification testing, a base

test fuel can be blended with ethanol for

use as a generic test fuel, and/or with

other oxygenates for use in oxygenatespecific certification testing options.

As suggested by a commenter, the

final rule requires test fuels to conform

to ASTM D 4814 specifications.18 To

further ensure the representativeness of

test fuels and the composition of

deposits, the rule also requires the

certifier to provide to EPA

documentation of the source and

identification of all of the refinery

blendstocks used, as well as the fuel

parameter levels in the finished test

fuel. Consistent with the proposal, test

fuels for national and PADD

certification may not be formulated

using refinery blendstocks from a

gasoline pool which has been certified

as a fuel-specific pool.

b. Test Fuel Severity Factors. The

weight of public comment supported

the proposed five severity parameters

(aromatics, sulfur, olefins, T–90, and

oxygenates) identified by EPA to

characterize the severity of gasoline for

forming IVD and PFID. As stated above,

some commenters encouraged EPA to

include additional severity factors to

these five; however, the information

available on these potential factors was

not sufficient to conclude that any other

factor would be appropriate. Some

commenters questioned whether these

factors should be considered equal in

their severity, especially with respect to

their specific effect on PFID and IVD

formation. However, EPA could not find

sufficient information to justify giving

more weight to one severity factor over

another for either form of deposit. For

these reasons, EPA is finalizing the

detergent certification program based on

the five severity factors weighted

equally as proposed.

While the majority of commenters

agreed that the impact of oxygenates

should be accounted for in the

definition of certification test fuels, the

Renewable Fuels Association (RFA)

commented that only limited test data is

available to indicate that a higher

detergent treatment rate may be

necessary in oxygenate blends. EPA

disagrees. Data from a number of

sources indicates that the addition of

oxygenates, in particular ethanol, has a

substantial impact on gasoline depositforming tendency.19 Also, most

commenters stated that testing on fuel

containing 10 volume percent ethanol

provides a more difficult test of a

detergent’s deposit control efficacy than

testing on a fuel that contains 15 volume

percent MTBE, and hence EPA should

allow testing on a single ethanolcontaining certification fuel.

Consistent with the weight of

available test data and public comment,

ethanol is included in the test fuel

specifications related to each of the

generic certification options, i.e., those

options which certify a detergent for use

in any oxygenated or nonoxygenated

gasoline in the related PADD-specific or

national pool. To ensure representation

of the maximum deposit-forming effects

of ethanol (or other oxygenate, in the

case of an oxygenate-specific

certification option), additive certifiers

must blend the oxygenate into the test

fuel so that its final concentration is no

less than the maximum concentration

that the oxygenate can be used in

commercial gasoline. For ethanol this

corresponds to the addition of ethanol

so that the final concentration in the

certification test fuel after blending is no

less than 10 percent by volume. In the

case of MTBE, this corresponds to the

addition of MTBE so that the final

concentration in the certification test

fuel after blending is no less than 15

percent by volume. Oxygenates used for

certification testing purposes must be of

fuel-grade quality. The use of

oxygenates that are specially processed

to remove impurities is not allowed.

c. Number and Severity of Test Fuels.

As mentioned earlier, EPA proposed in

the NPRM that a detergent additive be

tested in at least two, and up to four test

fuels, for each certification option

selected. In commenting on the

proposal, API, CMA, and others from

the petroleum and detergent additive

industries stated that this was

unnecessary and that EPA should allow

certification testing to be conducted

using a single test fuel. On the other

hand, AAMA stated that requiring more

than one certification test fuel would

allow for the inclusion of more refinery

streams in the formulation of

certification test fuels, thereby

providing more representative results.

Requiring multiple test fuels would also

tend to help ensure that yet-to-beidentified fuel severity factors are

represented in the certification test

fuels.

As described above, EPA decided to

allow use of test fuels formulated to the

severity factor specifications from

refinery blendstocks as an alternative to

using test fuels drawn from finished

commercial fuel supplies. This decision

eliminates one of the most important

reasons for which multiple test fuels

were originally proposed, i.e. to ensure

that detergents are tested in the

presence of adequately high levels of

fuel severity factors, without creating

the impractical requirement that one

finished fuel must be found which

happens to contain the specified levels

of all the requisite parameters. In

addition, as described above in the

section on severity factors, EPA has

determined that testing on ethanolcontaining fuel will suffice to

demonstrate a detergent’s effectiveness

in other oxygenated fuels, obviating the

need for separate tests to be conducted

in the presence of ethanol and MTBE.

Reflecting these changes in the

program’s requirements, EPA has

further simplified the certification
35330 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

20 ‘‘Analysis of Differences in Nonoxygenate Fuel

Parameter Levels in Oxygenated and

Nonoxygenated Gasolines: 1992–1994 American

Automobile Manufacturers Association Data’’,

George Hoffman, DynCorp/DynTel, Docket item IV–

B–08.

testing program by requiring detergent

performance testing in only one test fuel

for each certification option selected. Of

course, this does not preclude any

additive certifier from performing

multiple tests itself on a variety of test

fuels derived from different sources.

Such redundancy would help to ensure

that the additive is as effective as

claimed in all the gasolines in the

gasoline pool.

Having decided to require one test

fuel per certification option, EPA also

reviewed the required levels of test fuel

severity factors. For the NPRM, EPA

originally derived the nonoxygenate fuel

parameter specifications for each of the

fuels in the proposed test fuel matrices

through a complex process based on

ensuring no less than a 1-in-5 chance

that a randomly selected commercial

fuel would meet the required fuel

parameter levels. As mentioned

previously, this process resulted in

proposed fuel parameter levels

corresponding to the 55th to 65th

percentile range of concentrations

relative to the national gasoline pool.

Although commenters generally

opposed the 20 percent availability

approach EPA used to determine test

fuel specifications, there was broad

support for the 65th/55th percentile fuel

parameter levels derived from this

approach. EPA believes it is appropriate

to require that each nonoxygenate fuel

parameter be represented at its

respective 65th percentile level, in the

applicable gasoline pool (national,

PADD, premium, etc.). This decision is

based on the facts that: (1) test fuels may

now be specially blended so that fuel

parameter specifications no longer need

to be linked to fuel sample availability;

(2) there is no conclusive data on which

to weight any one fuel parameter’s

impact on fuel severity above another’s,

and (3) the 65th percentile levels

predominated in the originally proposed

test fuel matrix.

The required parameter levels are to

be met in the certification test fuel

before the addition of ethanol. EPA

analyzed AAMA fuel survey data,

comparing levels of the nonoxygenate

fuel parameters in nonoxygenated fuels

to those in oxygenated fuels (all

oxygenates included in the analysis).20

While the results of this study were not

totally consistent, they indicated that

the parameter levels in oxygenated fuels

tended to be lower than those in

nonoxygenated fuels. This result

suggests a dilution effect when

oxygenate is added. Thus, specifying

that the prescribed 65th percentile

levels be met in the test fuel before the

addition of the oxygenate appears to

conform to the real-world behavior of

in-use fuels.

In its comments, API urged EPA to

use test method reproducibility to

establish enforcement tolerances, i.e.,

levels below the specifications which

would still be considered to be in

compliance with the specifications, for

the measurement of test fuel parameters

(per ASTM methods). EPA rejects this

approach. As with the approach taken

for the deposit control performance

standards, EPA believes that the

required test fuel parameter levels

should be absolute minimums which

must be satisfied. Allowing downward

variability in meeting test fuel

compositional requirements would

compromise the program’s emissions

control benefits as would allowing

downward variability in meeting

deposit control testing standards.

d. Other Issues. EPA received a

number of comments on its proposed

requirement that the non-detergent

additives present in certification fuels

must be representative of those used in

commercial gasoline. The petroleum

and detergent additives industries stated

that it is unlikely that non-detergent

additives affect deposit-forming

tendency because they are present in

commercial fuels at very low

concentrations. Hence, they stated that

it was not necessary to require that nondetergent additives be present in

certification test fuels.

EPA’s chief concerns regarding the

additive content of test fuels are (1) that

no detergent-active substances be

present in the test fuel other than those

substances which are part of the

detergent additive package being tested,

and (2) that the deposit control

performance demonstrated by the

detergent package in the test fuel not be

adversely affected by other additives

encountered in use. In reviewing this

subject, EPA concluded that it is not

practical at this time, nor has a

significant need yet been demonstrated,

to require specific nondetergent

additives to be present in certification

test fuels. EPA has also concluded that

requiring the identification of

nondetergent additives in the test fuel

would not very effectively address

EPA’s concerns; moreover, many

certifiers would not be able to fully

comply with such a requirement.

Thus, consistent with the views of the

commenters, today’s rule is generally

not prescriptive with respect to

nondetergent additive use in

certification test fuels. Typical

nondetergent additives may be, but are

not required to be present in the test

fuels. Also, the presence of such

additives does not need to be reported.

The addition of detergent-active

substances other than the additive being

tested is specifically prohibited. On the

other hand, if EPA subjects a certified

detergent to confirmatory testing, then

EPA may include in its test fuel any

nondetergent additive which can

reasonably be expected to be

encountered in use. If the performance

of the certified detergent is adversely

affected by the presence of such

additive, to the extent that the detergent

fails the confirmatory test, then the

certification might be jeopardized (see

§ 80.161(e) regarding the

disqualification of detergent additives).

The additive industry disagreed with

EPA’s proposed requirement that

certification test fuels must be contained

in new, sealed containers during storage

and transportation, claiming that this

requirement would be infeasible,

unreasonable, and expensive, and

would generate a lot of waste. Instead,

it said, clean tank trucks should be

adequate for the transport and storage of

test fuels. EPA is persuaded that the use

of clean tank trucks or other containers

will ensure that test fuels are not

contaminated or otherwise altered in a

way that might bias certification test

results, and that requiring the use of

new sealed containers is unnecessary to

maintain sample integrity. Therefore,

the certification program requires that

certification test fuels be transported

and stored in clean tank trucks or other

containers. In response to EPA’s request

for data on the affect of fuel storage on

test fuel severity, comments from the

additive industry suggested that the

passage of time would tend to increase

test fuel severity due to the effects of

fuel oxidation. Therefore, the use of test

fuel which has been stored would tend

to make the performance test more

stringent. EPA agrees with these

comments. Furthermore, no data is

available to indicate that gasolines may

become less severe over time. Therefore,

EPA will not limit the time a test fuel

sample may be stored before

certification testing is conducted.

The majority of commenters were in

agreement with EPA’s proposal to

define test fuel parameter levels based

on an analysis of the three most current

years of AAMA fuel survey data.

However, several commenters from the

petroleum industry stated that EPA

should use refinery baseline data

collected under the Reformulated

Gasoline Program. EPA disagrees with

this comment. The RFG baseline data
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35331

21 ‘‘Statistical Analysis Methodology: 1992–1994

American Automobile Manufacturers Association

Data’’, George Hoffman, CSC, Docket item IV–B–06.

22See § 80.164 of the regulatory text for specific

values under the different certification options and

suboptions. 65th percentile nonoxygenate fuel

parameter levels must be met prior to the addition

of the required oxygenate.

pertains to 1990 only. Therefore, it

would not provide as current, nor as

representative, a characterization of

longer-term trends in fuel quality as the

proposed use of the average of three

years of AAMA data. The analysis

presented in the NPRM was based on

1989 through 1991 AAMA fuel survey

data. However, more recent AAMA data

is available now. Thus, consistent with

the proposal and the support expressed

in the public comment, the fuel

specifications for detergent certification

testing have been updated to reflect the

results of the 1992–1994 gasoline

AAMA survey data.21

B. Fuel-Specific Certification Test Fuels

Unlike the test fuels described above

for certification testing under the

national and PADD options, which are

designed to represent fungible gasolines,

EPA proposed that the certification test

fuels under the fuel-specific option

would be tailored to represent the

unique deposit-forming tendency of

segregated gasoline pools. As proposed,

the additive certifier would have to

establish its own test fuels specific to its

gasoline pool. To characterize the

severity of the test fuel, the certifier

would use the four nonoxygenate

parameters specified under the national

and PADD certification scheme for

nonoxygenated fuels, and would

include oxygenate as a severity

parameter if oxygenate was used in the

specified gasoline pool. (Otherwise, the

detergent would be restricted to use in

non-oxygenated fuel-specific gasoline.)

EPA proposed that, subject to EPA’s

prior approval, other parameters could

be used in addition to the standard four

or five parameters. In order to use

another parameter, EPA proposed that

the certifier of a fuel-specific detergent

would submit test data to EPA to

demonstrate that the subject parameter

affects the deposit-forming severity of

the segregated gasoline pool for which

the certification is sought. In addition,

the applicant would submit a test

method approved by the American

Society for Testing and Materials

(ASTM) to measure the additional fuel

parameter in finished gasoline. EPA

proposed that the Agency would

respond to such requests within 90 days

after receiving the test data to support

the use of the additional parameters.

EPA received several comments

expressing support for the proposal to

require certifiers of fuel-specific

detergent to characterize the

composition of their segregated gasoline

pool. Under this final rule, the certifier

must create and maintain fuel survey

data from each of the facilities that

contribute to the subject gasoline pool

for a complete year. At a minimum, this

data must include monthly

measurements of gasoline aromatics,

olefin, and sulfur content, and T–90

distillation point. The certifier must also

calculate and provide to EPA the

percentile concentrations or levels for

each of the fuel parameters studied for

the segregated pool as a whole (see

§ 80.164(c)). The use of such additional

parameters will not require prior

approval by EPA since EPA judged that

EPA’s prior approval was not necessary

to ensure their proper use. However, to

be taken into account by EPA in case of

confirmatory testing (see Section VII.D.),

such additional parameters must be

surveyed, analyzed, and reported

according to the same requirements

applicable to the four standard

parameters.

Consistent with the certification

program’s approach for national and

PADD certification test fuels, under this

final rule, testing for generic fuelspecific certification must be conducted

using a single test fuel that has

nonoxygenate fuel parameter levels at or

above their respective 65th percentile

values for the subject segregated

gasoline pool as determined by the fuel

marketer’s required fuel survey analysis.

Also paralleling the national and PADD

certification options, a nonoxygenated

fuel-specific test fuel may be blended

with ethanol (to a concentration of at

least 10 volume percent ethanol in the

finished fuel) to qualify as a test fuel for

certifying a detergent for use with any

oxygenate. The requirements for

oxygenate-specific fuel-specific

certification test fuels also parallel those

under the national and PADD

certification options. Certification fuels

used in conducting testing to

demonstrate that either a PFID-only

detergent or no detergent additive are

needed to satisfy EPA’s IVD/PFID

control requirements must meet the

same compositional criteria described

above.

No specific comments were received

on whether EPA should apply an IVD

demonstration fuel qualification

criterion under the fuel-specific

certification option. Gasoline within a

given fuel-specific gasoline pool is

likely to be much less variable in

composition than fungible gasoline for

several reasons. The sources

contributing to a fuel-specific pool will

likely be limited in number and belong

to a single refiner. In addition, refining

parameters would be more closely

controlled to maintain the unique

composition that defines the segregated

fuel-specific gasoline pool. The fuel

composition monitoring and associated

detergent recertification requirements

under the fuel-specific option will act to

limit the variability in the composition

(and thus the severity) of such gasoline

pools. Thus, under this final rule, fuelspecific certification test fuels are not

required to satisfy deposit

demonstration test requirements.

C. Summary of Test Fuel Requirements

The following table summarizes test

fuel compositional requirements under

the different national, PADD, premium,

and fuel-specific certification suboptions.22
35332 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

TABLE VI–1—SUMMARY OF TEST FUEL REQUIREMENTS; GENERIC DETERGENT CERTIFICATION

[For use in any gasoline grade, with any oxygenate]

Gasoline pool Nonoxygenate fuel

parameters

IVD demonstration

standard

(mg)

Oxygenate/concentration

National .......................................................................... 65th percentile in national survey ................................. 290 10% Ethanol.

PADDs I and III ............................................................. ......do ............................................................................ 290 Do.

PADDs II, IV, and V ....................................................... ......do ............................................................................ 260 Do.

PREMIUM DETERGENT CERTIFICATION

[For use in premium gasoline, with any oxygenate]

Gasoline pool Nonoxygenate fuel

parameters

IVD Demonstration

Standard

(mg)

Oxygenate/concentration

National .......................................................................... 65th percentile in national/premium survey .................. 260 10% Ethanol.

PADDs I and III ............................................................. 65th percentile (premium) in respective PADD ............ 260 Do.

PADDs II, IV, and V ....................................................... ......do ............................................................................ 235 Do.

NONOXYGENATE OR OXYGENATE-SPECIFIC CERTIFICATION

Gasoline pool Nonoxygenate fuel parameters

IVD Demonstration standard

(mg)

Oxygenate/concentration

Any Grade:

no oxygenate ............................................................... Same as national or PADD generic certification shown

above

None.

oxy specific .................................................................. Max concentration.

Premium Only:

no oxygenate ............................................................... Same as national or PADD premium certification shown

above

None.

oxy specific .................................................................. Max concentration.

FUEL-SPECIFIC CERTIFICATION

Gasoline pool Nonoxygenate fuel

parameters

IVD demonstration

standard

(mg)

Oxygenate/concentration

No Oxygenate ...................................................... 65th percentile in the specified pool .................... none .......... None.

Any Oxygenate ..................................................... ......do ................................................................... ......do ........ 10% Ethanol.

Specific Oxygenate .............................................. ......do ................................................................... ......do ........ Specified oxygenate at

maximum conc.

*Similar to the national and PADD certification case, fuel-specific certifications may be obtained for all gasoline grades or for premium gasoline.

Test fuel samples used in IVD and

PFID performance testing for a given

detergent must conform to identical

qualification criteria, but need not be

drawn from the same batch of gasoline.

Likewise, the samples of the detergent

additive package used in the required

certification tests need not be from the

same production batch, provided that

both samples conform to the

compositional information provided to

EPA by the additive certifier.

D. Test Fuels for Leaded Gasoline

Certification

The certification program retains the

interim rule’s specifications for leaded

gasoline test fuels to allow use of

existing test data to the greatest extent

possible. Given the very low level of

leaded gasoline use in the U.S., EPA

believes that increasing the stringency

of these test fuels would not result in an

environmental benefit that would

compensate for the cost incurred in

conducting the additional testing which

would be required.

E. Measurement of Gasoline Fuel

Parameters

For the purposes of measuring the

fuel parameters which define

certification test fuels, EPA proposed to

allow the use of specified ASTM

procedures, as well as other procedures

proposed for use under the RFG

program (58 FR 11722, February 26,

1993). This proposal was expected to

allow reasonable flexibility in test

procedure selection while ensuring the

needed measurement precision. EPA

also wanted to coordinate testing and

compliance requirements across the

RFG and detergent additive

rulemakings. To that end, the Agency

proposed to incorporate into the final

detergent additive program, as

appropriate, any changes to the fuel

parameter measurement procedures

finalized in the RFG program.

Certifiers under the fuel-specific

option may use additional fuel

parameters to describe the composition

of their segregated gasoline pools and to
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35333

23 See the Regulatory Impact Analysis for the

Reformulated Gasoline Final Rule, December 13,

1993, EPA Air Docket A–92–12, Docket item V–B–

01.

24 ASTM test method D 5598–94, ‘‘Standard Test

Method for Evaluating Unleaded Automotive SparkIgnition Engine Fuel for Electronic Port Fuel

Injector Fouling’’, and ASTM test method D 5500–

94, ‘‘Standard Test Method for Evaluation of

Unleaded Automotive Spark-Ignition Engine Fuel

for Intake Valve Deposit Formation’’ are

incorporated by reference in 40 CFR 80.165(a) and

(b) respectively. ASTM is currently considering

revisions to the test validation criteria for these test

procedures to provide more flexibility (See Docket

item IV–E–58). When available from ASTM, EPA

will evaluate the suitability of such revisions, and

if appropriate, might undertake a rulemaking

activity regarding their adoption.

25 For similar reasons, EPA will not allow the use

of the abbreviated 5,000 mile IVD test for

demonstrating the deposit forming tendency of

unadditized fuels. (See Section VI.A.4.)

define the required certification test

fuels (see Section VI.B.). EPA proposed

to require that ASTM-approved test

procedures be used for measurement of

such additional test fuel parameters

under the fuel-specific certification

option.

The RFG regulations, including final

versions of the fuel parameter test

requirements, were published by EPA

on February 16, 1994 (59 FR 7716). In

finalizing these test procedures under

the RFG program, the Agency addressed

some of the issues that were also raised

in the context of the public comment on

the detergent NPRM.23 For the reasons

discussed under the RFG program

Federal Register notice, and in the

interest of maintaining uniformity of

fuel parameter testing requirements

between regulatory programs, EPA is

adopting the procedures finalized under

the RFG program (40 CFR 80.46) for the

required measurement of levels of

sulfur, olefins, aromatics, T90, and

oxygenate content under this final

regulation. The use of alternate test

procedures is not allowed except as

provided for under the RFG program. As

discussed in the final RFG rule, EPA

believes that allowing the use of

additional alternate procedures would

result in uncertain quality and

unacceptable variability of test results.

EPA is currently considering modifying

40 CFR 80.46 to update the test

procedure for the measurement of

olefins. If such a change is adopted, and

if other such revisions are implemented,

they will naturally also apply to the fuel

parameter measurement requirements

under this rule.

Because EPA is not finalizing the

proposed two-tier certification scheme

with associated terminal fuel parameter

monitoring requirements (see Section

IV), the required measurement of fuel

parameters will be limited to that

necessary to formulate test fuels and to

conduct fuel survey analysis under the

fuel-specific certification option. EPA

believes that restricting the procedures

used to measure fuel parameter levels to

those prescribed under the RFG program

will not represent an undue hardship to

the industry considering the limited fuel

parameter measurement requirements.

No specific comment was received on

EPA’s proposal that additional test fuel

parameters which may be used under

the fuel-specific certification option

must be measured according to ASTM

procedures. Comment from the

petroleum industry generally supported

the use of ASTM-approved methods and

any other test methods which may be

specified for use under the reformulated

gasoline program for use in measuring

test fuel parameters. Since it is unclear

what additional parameters might be

used to define fuel-specific gasoline

pools and the fuel parameters selected

may not commonly be measured by

industry, EPA now believes that it may

be too restrictive to require to use of

only ASTM-approved procedures. Given

this concern, EPA will require that test

procedures used to measure optional

fuel parameters under the fuel-specific

option must conform to reasonable and

customary standards of repeatability

and reproducibility, and reasonable and

customary limits of detection and

accuracy for the type of test procedure

in question. ASTM-approved

measurement procedures would

conform to this requirement, as might

others that have not received ASTM

approval.

VII. Certification Tests and

Performance Requirements

A. Certification Test Procedures

In the NPRM, EPA proposed test

procedures to evaluate IVD and PFID

control that were based on draft

procedures under evaluation by ASTM.

It was also proposed that, if these test

procedures were finalized by ASTM,

they would be incorporated by reference

in this final rule. This proposal was

supported in the public comment.

ASTM has since finalized their IVD and

PFID test procedures with minimal

changes from the earlier drafts proposed

by EPA, and the procedures are

incorporated in this final rule.24

The IVD and PFID tests adopted by

today’s notice require an accumulation

of 10,000 miles on a standard test

vehicle. EPA proposed an alternative

IVD test which could be conducted

using an abbreviated 5,000 mile test

cycle. However, EPA has determined

that the use of such a shortened test

cycle might result in a significant

increase in test variability. Therefore,

EPA will not accept results from this

test for IVD certification testing

purposes.25

The Agency is aware that ASTM is

developing updated deposit control test

procedures which might be finalized by

ASTM shortly after this rule is

published. Several commenters

requested that EPA speed adoption of

these procedures when they become

available. EPA recognizes that, because

these test procedures would use more

current vehicle technology, they might

provide an improved means of

determining the IVD and PFID control

requirements of modern vehicles.

Therefore, the Agency is interested in

expediting consideration of the

adoption of these test procedures,

particularly if they are finalized by

ASTM in time to allow their potential

use in meeting initial detergent

certification testing needs. If EPA judges

that the updated ASTM procedures are

suitable for regulatory purposes, the

Agency will either publish a proposal

requesting comment on their adoption

either as alternate or replacement

procedures for the deposit control

performance tests adopted by today’s

rule, or will publish a direct final rule

for this purpose. A necessary criterion

for the adoption of the updated

procedures would be the determination

of a correlation of test results from these

procedures with the performance

standards of the current procedures, or

data that demonstrates that a specific

performance standard for these

procedures provides an appropriate

level of deposit control performance.

B. Deposit Control Test Standards

1. PFID-Control Test Standard. For the

PFID control test procedure finalized by

today’s notice, EPA proposed a

performance standard of less than 5

percent flow loss in any injector over

the accumulation of 10,000 miles.

Public comment requested that EPA

adopt the 10 percent standard which

was widely used by industry to prevent

driveability problems. Commenters

stated that the 10 percent standard

should be sufficient to prevent a PFID

emissions increase given the stringency

of the PFID test relative to typical in-use

driving conditions.

EPA accepted the traditional industry

PFID standard of 10 percent under the

interim program to allow maximal use

of existing test data. However, to ensure

realization of the potential emission

benefits to be provided by effective

deposit control, the proposed 5 percent
35334 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

26Tupa, R.C., Koehler, D.E., ‘‘Gasoline Port Fuel

Injectors—Keep Clean/Clean up With Additives,’’

SAE Technical Series No. 861536.

27 Tupa, R.C. and Dorer, C.J. ‘‘Gasoline and Diesel

Fuel Addditives for Performance/Distribution

Quality—II,’’ SAE Technical Series No. 861179.

standard is being adopted in the

detergent certification program. The

necessity of the more stringent

performance standard follows logically

from an understanding of the

mechanism by which PFID cause

exhaust emissions to increase. As was

reviewed in the NPRM, the most

significant factor appears to be the

difference in PFID-related flow loss

between one fuel injector and another.26

Electronic fuel control equipment

onboard the vehicle cannot adjust the

air/fuel ratio for combustion efficiency

in each cylinder; rather, it adjusts the

air/fuel mixture in response to the

average oxygen level in the exhaust. As

a result, the fuel flow may be

suboptimal for every cylinder. Some

cylinders will be overfueled, causing HC

and CO emissions to increase and fuel

economy to decrease. In other cylinders,

the combustion mixture will be overly

lean, causing a NOX emissions increase.

Furthermore, as the disparity between

cylinders rises, the combustion process

in any cylinder will become less and

less efficient.

The experience of auto manufacturers

indicates that the average driver will

tolerate some degradation in vehicle

driveabiliy. When deposits increase to a

level where the flow rate of one or more

injectors is reduced by 10 percent or

more, however, combustion efficiency

and vehicle driveability will be

impaired to the extent that driver

complaints can be expected.27 Thus, the

10 percent standard has been the

traditional industry norm. However, it is

clear that the efficiency of the

combustion process may be significantly

affected, and emission rates increased,

well before this point. Because the main

focus of the detergent certification

program is the prevention of emission

problems, not driveability problems,

EPA believes the 10 percent standard to

be inappropriate.

Although emission effects may begin

as soon as any PFID begin to

accumulate, a standard of zero percent

would obviously not be reasonable. EPA

has chosen instead to harmonize its

PFID performance standard with that of

CARB, which implemented the 5

percent standard under its regulation of

detergent additives in January of 1992.

Experience under CARB’s program has

shown that the 5 percent standard can

be readily achieved using commonly

available additive formulations.

Furthermore, as discussed in the NPRM,

the application of a 5 percent rather

than a 10 percent PFID standard will

usually not be the deciding factor in

controlling the amount of detergent

needed to pass the certification

performance test requirements. Rather,

in most cases, the treatment rate

required for IVD control will be the

controlling factor. Still, in those

instances where PFID control

requirements do affect the treatment

rate, the 5 percent standard will offer

adequate stringency to make the test

meaningful from an emissions control

standpoint.

2. IVD-Control Test Standard. For the

IVD test, EPA proposed a performance

standard deposit weight of less than 100

mg-per-valve on average over the

accumulation of 10,000 miles. The

public comment supported adoption of

this standard. Also, this is the

performance standard required by

CARB. Based on the reasons discussed

in the NPRM and the public’s support,

EPA is adopting the proposed 100 mgper-valve IVD standard in this final rule.

C. Alternate Performance Requirements

for Leaded Gasoline

The certification program, like the

interim program, allows the use of

either carburetor-type, PFID, or IVD/

PFID detergents to comply with leaded

gasoline detergency requirements. The

responsibilities of fuel and detergent

manufacturers regarding the

requirements for leaded gasoline are

otherwise the same as those described

previously for unleaded gasoline.

D. Confirmatory Testing by EPA

EPA may conduct confirmatory

testing on gasoline blended with a

detergent additive to verify that the

additive performs as well as or better

than required by the deposit control

standards finalized today. At its

discretion, EPA may choose to conduct

one or more of the prescribed vehicle

tests on a detergent additive. For this

testing, EPA would blend the additive

in the designated test fuel at the

minimum concentration specified by

the manufacturer. The severity

parameter levels in the test fuel would

be equal to or less than that required for

the respective test fuel. The test fuel

may also contain any mixture of

nondetergent gasoline additives found

in commercial gasoline at the

concentration normally used. For

verification of a CARB-based

certification, EPA would use the

applicable CARB test procedures and

standards. EPA would run the IVD and

perhaps the PFID ASTM test and a

carburetor test, and if the applicable

performance standards were not met,

the certification could be invalidated.

(See Section III.A.3. and § 80.161(e)

regarding the disqualification of

detergent additives).

The final rule does not include

tolerances to allow for test-to-test

variability as requested by some

commenters. EPA cannot establish test

tolerances for the same reason ASTM

was unable to specify precision

parameters for their IVD and PFID test

procedures. A sufficient amount of

repeat tests using these tests is not

available. Certifiers must therefore take

into account a reasonable level of

uncertainty in evaluating their test

results and reporting the detergent’s

LAC. At its discretion, EPA may take

such uncertainty into account when

evaluating the results of any

confirmatory tests it may conduct.

VIII. Enforcement Provisions

A. Overview

The enforcement provisions of the

detergent certification program closely

track those in effect under the interim

detergent program promulgated on

November 1, 1994. Following is a

general outline of the enforcement

provisions that will apply in the

certification program. In general, these

are the same enforcement provisions

that apply under the current interim

program, with certain revisions that

make them more efficient and

streamlined. (See section VIII(B) of this

preamble for a discussion of the

revisions to the interim rule’s

enforcement provisions.) Since the

interim program is to continue in effect

for non-certified detergents until the

certification program becomes

mandatory (on July 1, 1997 for detergent

manufacturers, detergent blenders, and

other upstream parties, and on August

1, 1997 for gasoline retailers and

wholesale-purchaser consumers

[WPCs]), revisions to the interim

program’s enforcement provisions will

apply as of September 3, 1996.

Enforcement provisions that are not

revised by today’s rule will continue to

apply under both the interim and final

certification programs.

For the convenience of the reader,

many of the previously promulgated

provisions that are not being revised in

this rule (such as the core of the

prohibited acts, liability, and product

transfer document sections), are

nonetheless repeated in the regulations

issued today. It is important to note that

this repetition is to make the Code of

Federal Regulations more useable and to

avoid confusion. The repetition of

previously promulgated regulatory text

is not intended to be a re-promulgation
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35335

of that text. The only regulatory

provisions promulgated today are new

provisions, and the revisions to

previously promulgated provisions.

1. Certification Conformity. Effective

August 1, 1997, all gasoline sold or

transferred to the ultimate consumer,

and effective July 1, 1997, all gasoline

sold or transferred to those who sell or

transfer to the ultimate consumer, must

be additized with detergent that has

been certified pursuant to the

requirements of § 80.161. The detergent

must be present in at least the lowest

additive concentration (LAC) certified to

EPA as effective, and in conformity with

the use restrictions of the certification.

Prior to July 1, 1997, detergent

manufacturers may choose to certify

their detergents in conformity with

§ 80.161. Gasoline/PRC additized with

such certified detergents must be

additized in compliance with the

requirements of § 80.161.

Use restrictions pertain to the type of

gasoline product to which the detergent

may be added under a given

certification. As previously described,

detergents certified under the national

option may be used with any gasoline

(e.g., oxygenated or non-oxygenated,

premium or regular) sold anywhere in

the U.S. (subject to approved state

programs). Detergents may also be

certified at a different LAC for use with

gasoline sold to the ultimate consumer

in a particular PADD. Detergents

certified under the fuel-specific option

may only be used with the segregated

gasoline specified in the certification.

Furthermore, within a national, PADDspecific, or fuel-specific certification, a

detergent may be separately certified at

a different LAC for use only with nonoxygenated fuel, for leaded fuel (for

nonroad use only), for fuel blended with

a specific oxygenate, and/or for

premium fuel. Finally, detergent

certifications based on certification by

the California Air Resources Board

(CARB-based detergents), may only be

used with gasoline additized and/or

ultimately sold in California.

Under the certification program,

detergent in its pure state, i.e., prior to

its addition to gasoline, must meet the

chemical composition and

concentration specifications set forth in

its 40 CFR part 79 registration (as is also

the case under the interim program

rule), and in its Federal certification.

2. Compliance With Volumetric

Additive Reconciliation (VAR)

Requirements. All parties who blend

detergent into non-exempted gasoline,

or into components added to gasoline

after the refining process (post-refinery

components, or PRC), must complete

mandatory accounting reconciliations

establishing that the product was

additized at an actual detergent

concentration that was at least equal to

the LAC certified as effective to prevent

deposit formation. All additized

gasoline and PRC must be accounted for

on VAR records.

Automated detergent blenders must

complete these mandatory

reconciliations in consecutive

compliance periods, each no greater

than 31 days in length. The

reconciliation for automated blenders is

based on averaging the additization

concentrations over the compliance

period. Today’s final rule, like the

interim program, does not require that a

per-gallon minimum detergent

concentration be attained by blenders

within the averaging period. Handblending detergent blenders must

complete the mandatory VAR on a perbatch basis.

VAR reconciliation records (VAR

formula records) and VAR supporting

documentation must be maintained by

detergent blenders for a five year period

from date of creation.

3. Equipment Calibration. To assure

measurement accuracy, under this final

rule, automated additization equipment

must be calibrated on a semiannual

basis, and every time the detergent in

the storage tank is changed to one with

a different viscosity.

4. Product Transfer Documents.

(PTDs). All regulated parties transferring

gasoline, detergent, or additized PRCs

(except retailers and WPCs transferring

gasoline to the ultimate consumer) must

also transfer product transfer documents

(PTDs) providing necessary information

about additization status, identity of the

product, and identity of the transferring

parties. All regulated parties receiving

such product, including retailers and

WPCs, must likewise obtain these

documents. Most regulated parties will

be required to maintain these

documents for five years. However,

WPCs receiving such documentation for

additized gasoline will not have any

record maintenance requirement as to

the received documents.

5. Liability and Defenses. As is typical

in EPA fuels programs, presumptive

liability will be the cornerstone of

compliance assurance under the

certification program. All parties in the

relevant gasoline, detergent, and

detergent-additized PRC distribution

chain for a nonconforming product will

be presumed liable for detergent

program violations arising from that

nonconformity, specifically, violations

involving the sale, transfer, etc. of

nonconforming detergent,

nonconforming gasoline, and

nonconforming additized PRC, as

applicable. Two exceptions to this

general rule exist, however. First,

carriers are only presumptively liable

for violations discovered at their own

facilities. For downstream violations,

carriers will be deemed liable only

when EPA can prove that they caused

the violations. Second, for VAR

violations, expected to be the primary

source of violations under the detergent

program, only those parties meeting the

definition of detergent blender for the

nonconforming product will be

presumptively liable.

In addition, any regulated parties that

EPA can establish caused VAR

violations will be deemed liable for

these violations, and branded refiners

will be vicariously liable for any

violations, other than violations of the

PTD provisions, found at facilities

operating under the refiner’s brand

name. Presumptive liability for PTD

violations is imposed under the

certification program only on those

parties owning, leasing, operating,

controlling, or supervising facilities at

which such violations are found.

All parties subject to presumptive and

vicarious liability have the right to

assert an affirmative defense to that

liability.

6. Exemptions. As provided in the

interim program, racing and aviation

fuel, and detergent and gasoline used for

research, development, and testing

purposes, are exempt from the

requirements of the detergent

certification rule, provided certain

safeguards are met to ensure the proper

use of these exempted fuels. In addition,

provided certain conditions are

satisfied, gasoline additized in the state

of California is exempt from the VAR

requirements of today’s certification

rule, and gasoline sold within California

is exempt from the rule’s PTD

requirements.

B. Enforcement Aspects of the

Certification Program, Including

Clarifications of, and Changes to, the

Interim Program

While the enforcement provisions of

the certification program closely track

and continue those found in the current

interim program, there are certain

important aspects in which EPA is

revising its enforcement provisions, for

both the interim and certification

program. The following description of

the enforcement program includes

modifications of the interim program.

These changes primarily result from

industry queries about the practical

implication of certain provisions of the

interim program rule. The Agency

provided implementation guidance on

some aspects of the interim rule in
35336 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

response to these queries, through the

issuance of four Detergent Rule

Question and Answer Documents (Q&A

Documents or Q&As). In addition, some

of the statements found in the Q&A

Documents were issued by EPA to

address the Agency’s implementation

concerns that became apparent to EPA

upon initiating its enforcement program.

All four Q&A Documents are available

in the docket (items IV–C–08 through

IV–C–11). Also available in the docket

is a summary of significant industry

implementation questions that have not

been incorporated in a Q&A document

(item VI–D–57).

Since these Q&A Documents do not

have the same legal force as a

regulation, the Agency is incorporating

these provisions in today’s rule. All of

these modifications adopted into today’s

rule are within the scope of the

proposals found in the NPRM, and are

logical outgrowths of the proposal,

typically based on comments in the

form of industry queries. The changes

and clarifications mitigate industry

burdens in comparison to the regulatory

language found in the current interim

program, while at the same time,

maintain the effectiveness of the

Agency’s detergent additive

enforcement program.

Other changes from the interim

program are also discussed below.

These changes were developed from

ideas presented in the NPRM, or are

based on proposals raised in the

Reopening Notice. The discussion of

these enforcement provisions includes

EPA’s response to comments received

about the proposals.

1. VAR Requirements. Mandatory

VAR procedures are the foundation of

today’s certification program, as they

have been under the interim program.

All detergent blenders are required to

record their actual detergent

concentration attained for a specified

compliance period and compare it with

the detergent’s applicable certified LAC.

If the actual detergent concentration for

the compliance period is equal to or

greater than the LAC, then the blender’s

detergent concentration rate is in

compliance with the VAR requirements.

To help prevent misadditization,

automated detergent blenders are

prohibited from setting their

additization equipment at rates below

the LAC rate. Hand blenders are

required to calculate VAR compliance

for every load of gasoline or PRC

additized, for each detergent used in the

load, and each certified LAC rate used.

a. Automated Detergent Blender

Compliance Periods. The interim

program final rule specified that VAR

compliance periods for automated

blenders may continue no more than a

calendar month, and may not extend

beyond the end of the calendar month

in which they are started. The monthly

time period was established because it

was considered a reasonable

compromise between industry’s desire

to average additization compliance over

an extended period, and the Agency’s

need to ensure an effective additization

level in the actual gasoline dispensed to

consumers. The original proposal in the

NPRM was for a weekly VAR

compliance period. After reviewing

industry comments to the NPRM

universally requesting VAR periods

longer than a week’s duration, the

Agency re-evaluated the matter and

established the monthly period in the

final interim rule.

It was subsequently brought to the

Agency’s attention that tying VAR

compliance periods to calendar months

was causing operational problems for

some detergent blenders. Blenders

claimed that varied operational

procedures and needs made such rigid

terminations difficult. In the Q&A

Documents, therefore, EPA relaxed this

requirement and permitted blenders to

terminate their monthly VAR

compliance periods on the last working

day of the month, or on the first working

day of the next month, etc. (See Q&A

Document #2, Q.13, p.8; and Q&A

Document #4, Q.3, p.4.)

One blender suggested a manner of

resolving these operational concerns in

a much simpler manner, by structuring

the automated blender monthly

compliance periods so that they could

last no longer than 31 days, without

being restricted to a calendar month.

Thus, the problems involving calendar

month terminations would be

alleviated. (See Docket item IV–E–44.)

The Agency agrees that this is a

reasonable method of ensuring that

automated VAR compliance periods are

no greater than a month, without forcing

regulated parties to conform their

operational practices to rigid calendar

month time frames. Therefore, today’s

final rule adopts this flexible approach

for both the interim and certification

programs, specifying that the automated

VAR compliance period must be less

than or equal to 31 days, at the blender’s

option.

The interim program rule requires

that the VAR record identify the dates

of the compliance period, as was

proposed in the NPRM. The Agency has

also interpreted this requirement in the

Q&A Documents. (See Q&A Document

#2, Q.13, p.8 & 9; and Q&A Document

#4, Q.3, p.4 & 5.) Under this

interpretation, if the VAR formula

record for a particular compliance

period includes all the additizations

occurring within a certain calendar

month, then the VAR formula record

need only identify the month. However,

if the compliance period does not

include the entire calendar month, then

the blender must indicate on its VAR

records the exact dates and times of the

period’s beginning and end. The point

of recording such information is to

ensure that the VAR time periods are

inclusive of all additizations. Today’s

final rule includes these requirements

and interpretations for both the interim

and certification programs.

As in the interim program, the

certification program requires

termination of the VAR period when an

automated blender’s additization

equipment concentration rate is

increased more than 10 percent over the

original rate. A new reconciliation

period must be commenced at that

point. The 10 percent limit was

intended to provide industry with some

flexibility in adjusting additization

equipment while preventing large

increases in additization rates as

compensation for significant underadditizations. It was not intended to

prohibit the use of a temporary rate

change to correct a misadditized batch

of gasoline, or to fix a temporary

equipment problem. In Q&A Document

#4 (q.5, p.6), EPA clarified its intent in

promulgating this provision and stated

that it would allow temporary rate

changes beyond the 10 percent cutoff,

provided that the purpose is to correct

a temporary problem involving a batch

misadditization and that documentation

about the temporary correction is

maintained.

Today’s rule contains the rate change

flexibility as introduced in the Q&A

Documents. It also permits rate changes

solely intended to correct an equipment

malfunction, provided that any

detergent used in this corrective

procedure and not blended with

gasoline is subtracted from the detergent

volume totals. Similarly, today’s rule

provides that automated blenders may

set their equipment’s concentration rate

lower than the LAC, provided such

alteration is a documented temporary

procedure performed solely to correct a

batch misadditization. In the NPRM,

EPA proposed that automated blenders

could never set their equipment lower

than the LAC, and the interim rule

incorporated this proposal. However,

based on experiences of blenders under

the interim rule, and in the interest of

encouraging correction of batch

misadditizations within a VAR

compliance period, EPA is including

this exception to the LAC rate minimum

in today’s final rule.
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35337

b. VAR Formula Records per

Detergent Storage System. As proposed

in the NPRM, the interim program

requires automated blenders to create a

separate VAR formula record for each

detergent storage tank. However, some

blenders expressed concern to the

Agency about the rigidity of this

requirement, since their detergent

additization systems were fed by more

than one tank or container, and it would

thus be difficult to create separate VAR

records for the different tanks. (See Q&A

Document #1, Q.9, p.6.) To address this

concern and provide the necessary

operational flexibility for such blenders,

the Agency stated that it would allow

VAR records to be based on detergent

tank storage systems. (Q&A Document

#1, supra.) Today’s final rule formalizes

this more flexible approach.

c. Brands and Grades of Gasoline on

VAR Records. As proposed in the

NPRM, the interim rule requires brands

and grades of the gasoline product

covered by a VAR formula record to be

listed on that record to ensure

identification of the product covered.

Detergent blenders expressed concern

about this requirement because brands

of product were not always known and

because product identification was

available on supporting records and was

thus not necessary on each formula

record. (See Q&A Document #1, Q.17,

p.7; and Docket item IV–E–44.)

These concerns prompted an Agency

Q&A Document response, specifying

that gasoline brands had to be identified

only when known to the blender.

Today’s final rule adopts this Q&A

provision, and provides further

flexibility by permitting product

identification as to brand and grade to

be recorded on supporting

documentation. As to gasoline

identification on the VAR formula

record itself, detergent blenders only

have to identify, when relevant, that the

product is additized under a customercontrolled proprietary system. This

latter requirement is necessary to alert

Agency auditors that a party in addition

to the terminal operator might be liable

for VAR violations for this product.

The additional flexibility in these

provisions will facilitate VAR

recordkeeping tasks without interfering

with the Agency’s need for proper

identification of additized product.

d. Recording of Detergent LAC and

the Actual Concentration. As proposed

in the NPRM, the interim rule required

that the LAC must appear on the VAR

formula record and in detergent

manufacturer blending instructions in

units of gallons of detergent per gallons

of gasoline. However, in implementing

the detergent registration provisions, the

Agency realized that such a figure

would typically contain three zeros after

the decimal point because the amount of

detergent being used per gallon of

gasoline is so small. The constant use of

such a figure would be unwieldy and

difficult to work with. Therefore, EPA

advised blenders that the LAC would be

permitted to be stated in terms of

gallons of detergent per one thousand

gallons of gasoline (Docket item IV–C–

12). This more workable LAC

identification system is contained in

today’s final rule. Further, today’s rule

requires the LAC to be reported in

relation to the volume of PRC in which

the detergent is blended, as well as

gasoline volume, since the effective

detergent concentration depends on the

total volume of additized product.

Neither the NPRM nor the interim

rule specified the number of figures to

which the blender must express actual

detergent concentration. Pursuant to a

request for clarification of the Agency’s

intent on this issue (see Q&A Document

#1, Q.22, p.9), today’s final rule clarifies

that the actual concentration must be

expressed to four figures. This

specification is appropriate, given the

large volumes typically encountered.

Today’s final rule also specifies that

the LAC identified on the VAR records

and in the manufacturers’ blending

instructions to their customers must

also be expressed to four figures.

Neither the NPRM nor the interim rule

specifically addressed this point. Both

concentrations now have to be recorded

to the same arithmetic rounding

standard. This will facilitate comparison

of the LAC with the blender’s actual

detergent concentration, and it also

ensures that this information is

standardized on all VAR formula

records.

e. VAR Recording of Use-Restricted

LACs. Under the interim program, a

detergent can be registered with

multiple LACs for use of the detergent

in different types of gasoline. For

example, a detergent can have one LAC

for generic product, and another, lower

LAC for leaded gasoline. The generic/

leaded distinction retains limited

relevance under today’s final rule,

because the sale or dispensing of leaded

gasoline for use in nonroad vehicles

continues to be permitted even though

the sale or dispensing of such product

for use in highway vehicles was banned

as of January 1, 1996.

As previously mentioned in this

preamble, there are additional

certification rule situations under which

a detergent may be certified with

multiple LACs. As proposed in the

NPRM and codified in the interim

program, under the certification

program a VAR formula record may

account for the use of only one such

certified LAC. Additization based on a

different certified LAC must be recorded

on a different record. In addition, the

VAR formula record for a detergent’s

use-restricted LAC must state the

respective use restriction(s) for the LAC

on the VAR record. This requirement

will highlight for the regulated party,

and for the Agency, the specific use for

which the detergent is certified, and

will help ensure that gasoline is

additized at a proper rate.

f. Diluted Detergent. Under the

interim rule, any change in detergent

package composition which changes the

LAC requires a new registration. Thus,

a detergent blender could not dilute a

detergent with the marketer’s own

gasoline in order to make the detergent

less viscous for ease in use in the colder

winter months.

Pursuant to a request to permit such

detergent dilution, EPA has allowed

such a practice, since it does not make

the detergent less efficient in preventing

deposit formation, and it facilitates

winter use of the detergent (Q&A

Document #4, Q.1, p.1.). Safeguards are

established under the Q&A to ensure

that the use of this procedure does not

result in less effective additization.

Blenders using this procedure are

required to use the diluted detergent at

an LAC rate that compensates for the

dilution, and they are required to inform

EPA of this usage in writing, prior to the

dilution. Today’s final rule codifies this

provision allowing lenders to dilute

their detergent for winter handling, thus

modifying the strict prohibition against

detergent package LAC variation

originally proposed in the NPRM.

g. VAR Recording of Gasoline Which

is Overadditized for the Anticipated

Addition of Ethanol or Other PRC.

Under the interim program, excess

detergent can initially be added to

gasoline to account for the anticipated

later addition of unadditized ethanol or

other PRC to that gasoline. The purpose

of such initial overadditization of the

gasoline portion is to ensure that the

combined gasoline/PRC product

contains the appropriate detergent

concentration.

Neither the NPRM nor the interim

program rule specified how this

permitted practice was to be recorded

on the VAR formula records. EPA

clarified this matter by the issuance of

Q&A Documents which stated that the

Agency expects such a VAR formula

record to identify the volume of gasoline

being overadditized, and the anticipated

volume of ethanol/PRC being accounted

for. In addition, EPA expects that the

volume of ethanol/PRC being accounted
35338 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

for by the gasoline overadditization is to

be included in the recorded final

volume of product additized (Q&A

Document #1, Attachment 1, p.24–25;

and Q&A Document #2, Q.8, p.7). Such

identification on the VAR record is

necessary to highlight that the blender

is over-additizing gasoline in this

manner, as well as to ensure that the

actual detergent concentration for the

gasoline/PRC blend is sufficient to

effectively control deposit formation.

Today’s final rule codifies these VAR

recording clarifications found in the

Q&A Documents, so as to make the VAR

records reflect the reality of this

specialized overadditization practice.

These clarifications should enable the

regulated community and EPA to verify

that this procedure, which was also

permitted under the interim rule, is

implemented in an accurate, effective

manner.

Today’s final rule also extends these

PRC-related overadditization VAR

procedures to the hand blender VAR

requirements, for the same reasons they

are necessary for automated blenders.

This corrects the Agency’s oversight to

include them in the interim program’s

provisions for hand blenders.

h. VAR Recording of Transfers of

Unadditized Gasoline. Under the

interim program, automated detergent

blending facilities and terminals at

which hand blending occurs are

required to create and maintain VAR

supporting documentation for each

transfer of unadditized gasoline from

the facility in the compliance period (for

automated blenders), or monthly (for the

hand blending terminals). A record that

unadditized product has left the

detergent blending terminal is needed

by the Agency so that the product can

be traced, if necessary, to ensure that it

was ultimately properly additized prior

to use by the consumer.

Because terminals already are

required under the interim program to

maintain product transfer documents for

each such transfer, the Agency stated in

Q&A Document #1 (Attachment #1.) that

detergent blenders could indicate on

VAR records the total amount of such

transfers occurring either in the VAR

compliance period (for the automated

blenders), or during the month (for hand

blenders), without indicating the date,

volume, or recipient of each transfer.

These total volumes are to be recorded

on the automated blender VAR formula

record or the hand blender monthly

record of unadditized transfers. This

simplified approach is codified in

today’s rule. It streamlines the more

exhaustive recording provision found in

the interim rule, while providing useful

notification to the Agency on VAR

records of the transfer of unadditized

product from detergent blending

terminals.

In requiring detergent blenders to

identify on their VAR records transfers

of unadditized gasoline leaving their

facilities, neither the NPRM nor the

interim rule considered that this would

require refineries which also happen to

be detergent blending terminals to

record routine bulk transfers of

unadditized product to other detergent

blending facilities. Such bulk transfers

were not the target of this record

requirement because they are not

intended for immediate consumer use.

Consequently, pursuant to industry

inquiry about this matter, the Agency

stated in Q&A Document #4 (Q.4, p.5.)

that it would excuse such refinery bulk

transfers from inclusion in the VAR

recording requirement for transfers of

unadditized product. Today’s final rule

codifies this exception and extends it to

pipelines which also happen to be

detergent blenders and which also

regularly make bulk upstream transfers

of unadditized gasoline. The proposal as

originally described in the NPRM has

thus been modified to take into account

the reality of upstream bulk transfers of

unadditized gasoline which do not

warrant the special VAR attention

necessary for downstream transfers of

such product.

i. Supporting Documentation of VAR

Volumes for Hand Blending Facilities.

As proposed in the NPRM, the interim

rule required hand blending detergent

facilities to retain VAR supporting

documentation, specifically, PTDs and

bills of lading for all product they

receive or send out. However, the

interim rule did not require hand

detergent blenders to maintain

documentation supporting their

recorded VAR volumes for gasoline,

PRC, and detergent.

Since such documents would

obviously be important if the reported

volumes were ever subject to question,

EPA has issued guidance that such data,

if available to the hand blender, should

be maintained (Attachment 1 of Q&A

Document #1, p.28.). Today’s final rule

codifies this requirement for hand

blenders.

j. Electronic VAR Formula and

Supporting Records. Neither the NPRM

nor the interim program final rule

addressed the use of electronic records

to satisfy VAR formula or supporting

record requirements. Pursuant to

industry request for approval of

electronic records (Docket VI–D–57.), in

Q&A Document #1 (Q.4, p.11) the

Agency clarified that the use of

electronic VAR and PTDs complies with

the rule, provided that these records are

complete, easily readable, and

accessible.

In written discussions with petroleum

industry groups, EPA discussed

permitting the use of computer

identification codes in lieu of VAR

formula signatures, provided that

safeguards of authenticity would be met

(Docket item IV–C–13). Blenders using

such ID codes would be required to

maintain a document signed by the VAR

record’s creator, acknowledging that the

use of this identification code on the

record is equivalent to his/her signature,

and must take record security and

access precautions.

Some regulated parties objected to the

idea of the Agency placing conditions

on the use of electronic records,

asserting that these records are as

reliable as paper records which are not

subject to any additional conditions

(Docket items VI–D–59 and VI–D–60).

The Agency disagrees with such

comments, and believes that its

enforcement needs justify the

establishment of conditions on its

approval of the use of electronic

records. If electronic records are to be

used by industry to satisfy detergent

rule requirements, EPA needs to be

assured that these electronically

generated documents will be easy to

read and easily accessible. If they are

encoded or stored in a manner that

makes them unusable by the Agency,

the effectiveness of the detergent

enforcement program would be

compromised. Therefore, the Agency is

choosing to establish readability and

accessibility requirements for electronic

records.

Further, since electronically generated

documents can be easily altered without

evidence of such alteration being

visible, and because compliance with

the detergent program is determined

primarily through review of the VAR

formula records, the Agency needs to

ensure that electronic VAR formula

records are stored with access and audit

security. Consequently, the use of

electronically created VAR formula

records requires the existence of access

and audit security precautions,

including documentation verifying the

true identity of parties identified on

these documents only through the use of

computer ID codes.

The final rule promulgated today

includes a specific provision approving

the use of electronic VAR records. It

thus expands the range of permissible

documents that will be acceptable to

satisfy VAR requirements, while

maintaining safeguards necessary for

EPA’s enforcement needs.

k. Detergent Tank Transitioning. The

interim rule prohibited the commingling
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35339

of different detergents through

provisions prohibiting the supply,

storage, etc. of an unregistered detergent

(which commingled different detergents

would be), and the additization of

gasoline with an unregistered detergent.

During implementation of the interim

program, the Agency was asked whether

a detergent blender could transition

from the use of one detergent to another

by adding a new detergent into a tank

that contains the residue of an old,

different detergent, even though some

commingling would result (See Q&A

Document #1, and Docket item VI–D–

57).

Such detergent tank transitioning

process is a common industry practice

and prohibiting it would greatly

inconvenience many blenders.

Therefore, EPA believes it is reasonable

to permit this practice in spite of the

limited commingling involved. At the

same time, the Agency needs to ensure

that protective procedures will be

followed which limit the amount, or

effect, of the commingling. EPA is

concerned that the combined detergent

may be used at a LAC that would not

adequately additize the gasoline.

Further, commingling of detergent

would make it difficult or impossible to

confirm the identity of the detergent by

testing, if this should be necessary for

enforcement purposes.

If a blender desires to use the same

detergent, but at a different LAC

certified for use restricted to a different

product, this would not constitute an

actual tank transitioning process. In this

instance, the detergent in the storage

tank remains the same and no

commingling occurs. Therefore, in such

a situation, the only requirement that

today’s rule imposes is that the blender

must create separate VAR formula

records for each certified LAC use,

identifying the separate use restrictions,

and must use measurement equipment

able to accurately measure the detergent

recorded for each record.

For the case of a tank transitioning

situation, i.e., where different detergents

are being commingled, EPA issued a

response in Q&A Document #1 (Q.5, p.4)

which provided limited approval for

such commingling. Associated

procedures ensure proper VAR

identification and usage the proper LAC

for the combined detergent. They also

encourage the maximum depletion of

the prior detergent in the tank so as to

limit the commingling involved.

Today’s final rule follows this Q&A

approach by permitting detergent

commingling during legitimate tank

transitioning periods, while requiring

necessary procedural and recordkeeping

safeguards to ensure proper VAR

identification of the detergents and

proper additization with the

commingled detergent. It thus relaxes

the total prohibition against detergent

commingling proposed in the NPRM, to

provide industry with the flexibility it

needs to execute this standard tank

transitioning procedure.

In addition, today’s rule codifies the

detergent transitioning policy, first

outlined in Q&A Document #1, supra,

under which the addition of new

detergent into a detergent storage tank is

specifically permitted and the combined

detergent is treated as if only the new

detergent were in the tank, provided

that the tank is drained of the old

detergent to a remaining level no greater

than 10 percent of the tank’s newly

delivered, commingled volume. This

volume includes the tank’s remaining

inventory of the residue detergent, plus

the newly delivered detergent.

This 10 percent cutoff figure creates

an incentive to detergent blenders to

reduce the amount of actual

commingling involved in their detergent

transitioning. The Agency has chosen

this figure because EPA judges this

small amount of residual detergent to be

inconsequential enough to minimize

concern about the use of an

inappropriate LAC for the combined

mixture. At the same time, it is large

enough to accommodate blender need

for flexibility in tank drainage

procedures. Furthermore, the drained

detergent can be re-delivered into

storage tanks containing the new

detergent, provided that the re-delivered

detergent comprises no greater than 10

percent of the tank’s total commingled

delivered volume. The Agency believes

it is appropriate to allow this particular

commingling procedure because it

eliminates the need for blenders to

dispose of the previous detergent.

If both detergents have the same LAC,

today’s final rule permits blenders to

drain their detergent tanks (and/or

redeliver old detergent) so that the old

detergent makes up no greater than 20

percent of the total newly delivered

volume without following additional

procedures. In such situations, there is

no risk of blender confusion as to what

LAC applies, so greater flexibility is

warranted than for those situations in

which the detergent LACs are different.

Finally, today’s rule establishes

provisions that will apply when two

detergents being commingled in tank

transitioning situations have different

certification use restrictions. Neither the

NPRM nor the interim program

specifically addressed this matter, and

no comments on this topic were

received by EPA. When two separately

certified detergents are being

commingled, the rule establishes that

the original detergent’s use restrictions

no longer apply, while the use

restrictions for the new detergent must

be followed. The Agency believes that

this procedure is appropriate, practical,

and easy to follow, provided the

transitioning steps discussed above are

followed. Under these steps, a blender

commingling 10 percent or less of the

original detergent would essentially

disregard the carry-over of the original

detergent, and follow the LAC and use

restrictions of the newly added

detergent.

In situations where a blender

commingles in the detergent tank a

residue of more than 10 percent of the

original detergent which has a different

LAC than the new detergent, the blender

is required by the transitioning

procedures to use the higher LAC of the

two detergents until an amount of

detergent is used up which is equal to

that of the original detergent remaining

in the tank at the time of the new

detergent’s delivery. The use of the

higher LAC should ensure that the

commingled detergent will be effective

in the fuel for which either detergent

was certified. Therefore, the blender is

allowed to use that higher LAC with the

new detergent’s use restrictions, and to

disregard the original detergent’s use

restrictions.

Each of the permitted tank

transitioning procedures described

above must be documented, either on

the VAR record or in supporting

documentation. Documentation of the

detergent commingling will be useful to

EPA if enforcement testing of the

detergent is contemplated by the

Agency.

l. Automated Additization Equipment

Calibration. The interim rule required

automated detergent blenders to

calibrate their additization equipment

each time they change their detergent

package and at the beginning of each

calendar quarter. The purpose of this

regulatory requirement was to ensure

the accuracy of the volume numbers

recorded on the VAR forms by

confirming the measuring accuracy of

the equipment generating those

numbers. Today’s certification rule

somewhat eases these calibration

requirements in response to comments

from detergent blenders that these

requirements were unnecessarily severe.

Industry’s initial implementation

concern was that it would be impossible

to fulfill the requirement that every

blender’s quarterly calibration had to be

performed in the first month of each

quarter (See Docket item IV–E–45). To

reduce this burden, the Agency issued

a Q&A Document stating that blenders
35340 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

could perform the required quarterly

calibration in any month within a

calendar quarter, provided that the

quarterly calibrations occurred no later

than three months from the previous

calibration (Q&A Document #1, Q.12,

p.6.).

As a further concern about quarterly

calibration, API and NPRA commented,

in response to Agency inquiry, that the

quarterly requirement was, itself, too

severe. API suggested that an annual

calibration requirement would be more

appropriate, while NPRA asserted that

calibration information should only be

asserted as an affirmative defense

element. (Docket items IV–C–14, VI–D–

58, VI–D–61, VI–D–62, VI–D–63, and

VI–D–64.) API further asserted that

parties performing additive

reconciliations on a daily or weekly

basis, i.e., more frequently than the

required monthly reconciliations, would

be assuring the accuracy of their

monthly VAR volumes as effectively as

those parties performing quarterly

calibrations. Therefore, for such parties,

API believed an annual calibration

requirement would be sufficient.

However, EPA received conflicting

information from a representative of an

additization equipment company

(Docket items IV–E–46 and VI–D–65).

This party asserted that merely

performing reconciliations at a greater

frequency, while not addressing the real

issue of the equipment’s measurement

accuracy, would not result in improved

accuracy of the VAR records. According

to this commenter, if the amount of

detergent being injected per recorded

pulse happens to change while the

equipment continues recording the

same pulses as before, the mere fact that

a blender increases the frequency of

reviewing the recorded pulses will not

ensure that the blender discovers the

measurement accuracy problem. This

commenter suggested that the only way

to address this concern is to actually

recalibrate the equipment.

The Agency agrees that merely

increasing the frequency of VAR

reconciliations does not necessarily

ensure measurement accuracy, and that

periodic additization equipment

calibrations are thus essential. Under

similar reasoning, the Agency rejects the

suggestion that periodic calibrations

should merely be asserted as part of an

affirmative defense. If a blender does

not calibrate its equipment regularly,

the fact that its additizations are

inaccurate may never be known.

However, it is also apparent that

quarterly calibrations are burdensome to

some facilities, without necessarily

providing commensurate benefits.

Therefore, today’s final rule requires

that automated detergent blenders

perform at least two equipment

calibrations per year. To ensure that the

calibrations will be reasonably spaced

throughout the year, the rule also

specifies that these procedures are to be

conducted within each calendar half

year, but at least one hundred and

twenty days apart. This modified

approach will reduce the equipment

calibration burden to industry, while

also satisfying the Agency’s need for

regular verification of VAR volume

accuracy.

As additional input on the calibration

issue, API commented that it was not

technically necessary or useful to

recalibrate additization equipment every

time a detergent package was changed.

API stated that merely changing a

detergent package, in itself, would not

affect equipment measurement

accuracy. On this point, the equipment

manufacturer commenter indicated that

if detergent viscosity changes due to a

detergent package change, the amount of

detergent being injected per recorded

pulse would change. A new calibration

of the recording equipment would thus

be necessary to ensure that the recorded

measurements were still accurate.

The Agency agrees that re-calibration

is necessary only when the viscosity of

the new package is different from that

of the previous package. Thus, today’s

final rule requires that equipment

recalibration must be performed each

time the detergent package is changed,

unless written documentation indicates

that the new detergent package has the

same viscosity as the previous detergent

package. To provide additional

flexibility, today’s rule permits a

calibration performed to fulfill the

package change requirement to serve

also as compliance with the semiannual calibration requirement,

provided that the package change

calibration satisfies the associated

spacing requirements. The Agency

believes that these modifications to the

proposed calibration requirements will

assure VAR measurement accuracy

while minimizing industry quality

control burdens.

m. Detergent Blender Record

Retention. The interim program rule

requires detergent blenders to provide

EPA with all VAR formula and

supporting records upon request. EPA

had proposed that the records be

maintained at the place of creation, but

the interim rule did not include this

requirement. The interim program also

did not specify the manner in which

these records were to be provided.

Several detergent blending terminals

requested clarification of EPA’s

expectations under the interim program

concerning document provision at the

time of inspection. (See Q&A Document

#1, Q.24 and 25, p. 9 and 10

respectively; and Docket item VI–D–57.)

The Agency responded that terminals

were not expected to store all the

required documentation on site (Q&A

Document #1, supra.). The Agency also

stated that detergent blenders were

expected to provide EPA inspectors

with six months of VAR formula and

supporting records (including PTDs)

within one hour of request, with the

remaining requested documents to be

provided by the next business day. The

Agency believed that this time frame for

record review would provide EPA with

the ability to quickly review a moderate

amount of records, but would not

burden respondents with the need to

provide immediately the full five years

of documents which they are required to

maintain.

However, EPA’s experience in

implementing the interim program has

revealed that the Agency needs

immediate access to VAR formula

records for a time span greater than six

months. Detergent program violations

are not typically discovered through

pre-arranged, exhaustive record audits

like those conducted under the RFG

baseline audit program. Instead,

detergent program violations are

primarily discovered through on-site

inspection review of VAR formula

records. These inspections typically

occur during unannounced and

expedited terminal inspections to

determine compliance with a variety of

EPA fuels programs. Such inspections

are usually completed in several hours

and typically do not extend beyond the

day of the initial inspection contact.

Therefore, EPA needs the immediate

availability at inspection sites of a long

enough period of VAR formula records

to give a clear picture of a facility’s

compliance performance. EPA considers

one year of VAR formula records to be

the minimum time frame within which

EPA can determine the facility’s

compliance, so that immediate access to

at least that period of VAR formula

records is essential for effective

detergent program enforcement. Since

VAR formula records are typically only

one or two pages in length per

reconciliation, retention of this small

amount of documentation should not be

unduly burdensome.

Today’s final rule requires automated

detergent blenders and hand blending

terminals to provide the preceding

year’s VAR formula records within one

hour of a request by EPA personnel. The

remainder must be supplied by the start

of the next business day, or later if

approved by EPA. In the case of VAR
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35341

supporting records, only the preceding

two month’s records need be

immediately available.

For non-terminal hand blenders, only

the prior two months VAR formula and

supporting records must be made

available within one hour of EPA’s

request. Since these blenders are

required to create VAR formula records

for each batch of fuel they blend, they

typically create many more VAR

formula records per month than

automatic blenders, and thus more

records will be available for EPA

review. Further, since such blenders are

typically small businesses with little

storage space, EPA believes it would not

be appropriate to impose on them the

same record provision burdens as on the

larger, terminal blenders.

Today’s certification rule (at

§§ 80.157(g) and 80.170(g)) also clarifies

that ‘‘immediate provision’’ of the

required records means that the records

should be provided within an hour of

request, or later with EPA approval.

Such flexibility permits records to be

stored on site, or to be transmitted,

electronically or by other means, from

any other location of the party’s choice.

Furthermore, if any blender can

establish by documentation that its VAR

supporting records are either centrally

maintained at another location, or

maintained at an alternative location by

a terminal customer operating its own

proprietary detergent system, then that

blender does not have to provide VAR

supporting records until the start of the

following business day, instead of

within an hour.

2. Affirmative Defense and Liability

Issues. The affirmative defense and

liability provisions of the certification

program are a continuation of, and are

substantially the same as, those

promulgated by the interim rule.

Immediately following is an analysis of

the certification program’s affirmative

defense provisions. Significant

differences from the interim program are

discussed thereafter.

The certification program gives all

parties which are subject to presumptive

and vicarious liability the right to assert

an affirmative defense to that liability.

In general, such parties must establish

that they did not cause the violation. In

addition, they must provide applicable

PTD(s) meeting the requirements of

§ 80.171 for the product in violation,

documenting that the product satisfied

all requirements of this program when

it left their control.

Specific parties have additional

requirements to establish an affirmative

defense:

Branded refiners are subject to

vicarious liability for product

nonconformity violations involving

gasoline, detergent, and detergentadditized PRC, as well as for VAR

violations, that occur at branded

facilities, i.e., facilities which operate

under the corporate, trade, or brand

name of the refiner or any of its

marketing subsidiaries. In addition to

establishing the lack of causation and

the PTD elements of a presumptive

liability affirmative defense, branded

refiners are also required to establish

either of two additional elements to

avoid vicarious liability for a violation.

They must either establish that the

violation was caused by sabotage or in

violation of law, or that the violation

occurred despite the existence of a

contractual obligation designed to

prevent it, where such obligation was

monitored by an appropriate oversight

program including periodic review of

PTDs to ensure contractual compliance.

These requirements are the same as

those that currently apply under the

interim program.

Detergent blenders, as the parties with

the most control over proper

additization, have to demonstrate

additional affirmative defense elements

to avoid presumptive liability for

detergent rule violations. In addition to

lack of causation and PTD compliance,

detergent blenders must have a quality

assurance program to ensure proper

additization of the product they

additize. The quality assurance program

must include periodic review of their

PTD and volume measurement records

to ensure the accuracy of the blender’s

PTD and VAR records. Further, a

detergent blender asserting an

affirmative defense must establish the

receipt (or provision, as appropriate) of

accurate written blending instructions

prior to the blending of the detergent

into the nonconforming gasoline or PRC.

These affirmative defense elements are

essentially the same as, and are a

continuation of, those found under the

interim program.

Detergent manufacturers are subject to

presumptive liability for non-VAR

related detergent, gasoline, and

detergent-additized PRC nonconformity

violations. As the parties controlling the

production of the detergent, the

detergent manufacturers must make

specific showings to establish an

affirmative defense to such liability.

(See the following subsection for an

analysis of changes to detergent

manufacturer affirmative defense

requirements under today’s rule.)

Detergent manufacturers are also subject

to liability for any detergent, gasoline or

PRC nonconformity violations, or VAR

violations, which EPA can establish

they caused.

Carriers of gasoline or detergent are

the last parties with different liability

and affirmative defense elements under

the detergent program. Since these

parties do not take title to the product

they transfer, carriers have less

incentive (although not necessarily less

ability) to cause violations. Therefore,

like the interim detergent program and

other EPA fuels programs, carriers are

presumptively liable under the

certification program only for the

detergent program violations found at

their facilities. They are, however, also

subject to liability for non-PTD

detergent program violations discovered

downstream from them, provided that

EPA can establish they caused the

violations.

a. Detergent Manufacturer Affirmative

Defense Modification. In the NPRM,

EPA proposed that, in order to

successfully establish an affirmative

defense to presumptive liability, a

detergent manufacturer would have to

establish the two standard defense

elements (i.e., lack of causation and

complying PTDs), as well as the

existence of test results confirming that

the detergent in question conformed to

compositional specifications when it

left the manufacturer’s control.

Detergent manufacturers commented

that these proposed additional

requirements were unfair, because their

actual ability to cause gasoline

nonconformity violations was limited.

The proposed requirements were thus

modified in the interim rule. Under the

interim rule, to successfully assert an

affirmative defense to presumptive

liability for non-VAR product

nonconformity violations, a detergent

manufacturer was required to establish

that it did not cause the violation.

Instead, it had to demonstrate or

furnish: (1) That it provided timely and

accurate written blending instructions

to its customer, (2) a detergent PTD,

meeting the requirements of § 80.158,

showing product compliance when the

detergent left the manufacturer’s

control, and (3) accurate test results

establishing that the product was in

compliance with its registration

specifications at the time the

manufacturer transferred the detergent.

In subsequent discussions with EPA,

CMA objected to the interim rule’s

affirmative defense requirement that

relatively sophisticated test results be

available on each batch to establish its

chemical conformity to registration

specifications (see Docket item IV–E–

41). CMA maintained that conducting

such tests on each batch of detergent

was unnecessary and prohibitively

expensive. Instead, for quality control

purposes, detergent manufacturers
35342 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

28Under the interim program, the test may be an

FTIR-based analysis or other procedure which can

qualitatively and quantitatively identify each

component of the detergent additive package

(§ 80.141(f)). Under the certification program, an

FTIR analysis is required (§ 80.162(d)).

typically monitor the quality of the

reagents which are input to the

production process, and then test each

produced batch to ascertain that it meets

relevant physical property

specifications. CMA contended that

these same measures would be adequate

to show that a questioned batch of

detergent did meet its registration

specifications.

In establishing the interim rule

requirement for relatively rigorous

analytical test results as an affirmative

defense element, EPA’s intent was to

ensure that the detergent manufacturer

would be prepared to supply

scientifically defensible, objective

evidence that the detergent component

of a product was consistent with its

registered compositional specifications

when it left the manufacturer’s control.

However, EPA is persuaded by its

discussions with the industry that

alternative approaches, more consistent

with the industry’s normal production

practices, can also be used to fulfill

these objectives adequately.

EPA acknowledges that a requirement

to perform an FTIR28 routinely on every

production batch, in case it might be

needed in the future for affirmative

defense to presumptive liability, might

be overly burdensome for some

manufacturers. Thus, EPA is making

alternative provisions available which

manufacturers may choose to follow for

affirmative defense purposes. If EPA

informs the detergent manufacturer of

the possible existence of a violation for

which the manufacturer may be

presumptively liable within one year of

the production of the detergent batch

involved, then FTIR results are required

for that batch. However, the

manufacturer need not have conducted

the FTIR procedure on the batch at the

time of production. Instead, the

manufacturer may choose to retain a

sample of each detergent batch when it

is produced, and to store it for at least

a year in case it becomes a component

of a product thought to be in violation

of this rule. In that instance, the

manufacturer would conduct the FTIR

analysis on the retained sample of the

batch involved. Whether the FTIR

analysis was done at the time the batch

was produced, or performed as needed

on a retained sample of the batch, EPA

would compare the results with the

FTIR submitted at time of certification,

to determine whether, in its judgement,

the composition of the production

detergent batch was in reasonable

conformity with the certified detergent

product.

If the manufacturer receives

notification from EPA of possible

presumptive liability concerning a

detergent batch that was produced more

than a year previously, the manufacturer

has additional choices for the

affirmative defense showing. The

manufacturer still has the option to

provide an FTIR on the batch (either

taken a time of production or on a

retained sample), as would be required

if the batch had been produced less than

one year ago. However, EPA

understands that shelf life restrictions

may become a factor for some detergents

after a year or more of sample storage

time. Thus, in lieu of an FTIR, the

manufacturer may choose to rely on the

following two affirmative defense

requirements: (1) Documentation that

the reagents used to synthesize the

batch were the same in identity and

quality as those specified in the

certification, and (2) documentation that

relevant physical properties of the batch

fell within the range established in the

detergent’s certification (see section

III.A.1 of this preamble).

b. Extension of Liability for VAR

Violations. Under the interim program,

only detergent blenders are subject to

presumptive liability for VAR

violations. Because detergent blenders

were the only parties required to

perform VAR reconciliations, it

appeared logical that they should be the

only parties liable for violations

involving such reconciliations.

The Agency has become convinced,

however, that parties other than

detergent blenders can cause VAR

violations, even if such other parties do

not conduct the VAR reconciliations.

For example, such parties can provide

erroneous instructions to the detergent

blender about detergent concentration

rates or use restrictions. Conceivably,

parties could also conspire with the

detergent blender to transfer

competitively low-priced unadditized or

misadditized gasoline.

Therefore, in the Reopening Notice,

EPA proposed extending presumptive

liability for VAR violations to other

regulated parties in the gasoline and

detergent distribution chains. In the

alternative, EPA proposed maintaining

presumptive liability for VAR violations

solely for detergent blenders, but

extending liability to any regulated

party whom EPA could show actually

caused a VAR violation. This option

was proposed with a new requirement

that parties in the detergent distribution

system would have an affirmative duty

to provide accurate, written blending

instructions for the detergent (59 FR

66872).

Most commenters on this issue

disagreed with the Agency’s proposal to

extend presumptive liability for VAR

violations to additional parties,

asserting that EPA should be able to

effectively enforce the VAR

requirements with the liability scheme

currently in effect under the interim

program rule. These commenters also

argued that detergent blenders are the

only parties who could reasonably be

held responsible for their own VAR

violations. However, two commenters

stated that parties other than detergent

blenders could cause VAR violations,

and should therefore also be subject to

presumptive liability for such

violations.

Few parties commented specifically

about the alternative proposal to impose

an affirmative duty on parties to provide

accurate detergent blending

instructions. One commenter agreed

with the idea, provided that this

requirement would take the place of

extending presumptive liability for VAR

violations to additional parties. A

second commenter opposed the

proposal, basing its opposition on the

idea that a new affirmative duty was not

necessary in the detergent program.

Other commenters asserted that, in

general, no new enforcement provisions

were warranted at this point in the

detergent program.

EPA agrees with the majority of

commenters that most VAR violations

will be caused by detergent blenders.

Therefore, the Agency agrees that

extending presumptive liability to

parties other than detergent blenders

would be inappropriate. However, since

other regulated parties in addition to

detergent blenders clearly do have some

capacity to cause VAR violations,

today’s rule does extend liability for

VAR violations to those regulated

parties that EPA shows caused such

violations.

Today’s final rule does not impose a

new affirmative duty on parties in the

detergent distribution system to provide

their customers accurate detergent

blending instructions. It is obviously

important to the effectiveness of the

detergent program that detergent

blenders receive accurate blending

instructions. However, EPA’s

experience enforcing the detergent

program has shown the effectiveness of

the existing affirmative defense

requirements concerning blending

instructions, i.e., the reciprocal

affirmative defense requirements of the

detergent manufacturer and the

detergent blender, respectively, to

provide and receive accurate, written
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35343

blending instructions. This experience

indicates that the added imposition of

an affirmative obligation (in addition to

the affirmative defense element) to

provide such instructions is not

necessary.

c. Defense Against Liability Where

More Than One Party May Be Liable for

VAR Violations.

As proposed in the NPRM, both the

interim program and the certification

program provide that multiple parties

may be subject to liability for the same

VAR violations. This possibility exists

for several reasons: Multiple parties may

fit the definition of detergent blender;

several regulated parties may have

caused the VAR violations; and branded

refiners may be vicariously liable for

another party’s violations if a VAR

violation occurs at a branded facility,

including a detergent storage system,

operating under the corporate, trade, or

brand name of that branded refiner.

Many commenters suggested that

liability for VAR violations should be

limited by the terms of contracts that the

parties themselves have created

concerning additization of gasoline.

These commenters stated that detergent

additization is often carried out

pursuant to the terms of such contracts

which dictate responsibilities between

the parties, and which should be

respected by the Agency.

As EPA stated in the preamble to the

interim program rule, the Agency is not

required to base its own determination

of liability for violations on the

consensual agreements created by

potential violators. However, the

Agency may consider the division of

responsibilities contractually

established between the parties when

deciding whom it will prosecute for

violations.

It is the Agency’s policy that: if such

division of responsibilities is

established by a written contract; if the

parties not assuming responsibility have

implemented reasonable contractual

oversight procedures to ensure that the

assuming party has fulfilled its

responsibilities; if the assuming party is

fiscally sound and capable of paying the

penalty for failure to comply with the

VAR requirements; and if the nonassuming parties have not otherwise

caused the VAR violation; then, it is

appropriate for the non-assuming

parties to avoid liability for a VAR

violation.

The Agency believes that contractual

arrangements meeting these criteria

provide reasonable assurance that the

assuming party is responsible for the

VAR requirements and has the financial

ability to pay penalties if it fails to

adequately meet these requirements.

Therefore, EPA does not believe that

compliance with the detergent program

will be compromised if parties are

permitted to assert reliance on such

contracts as a defense to the imposition

of multiple liability for VAR violations.

Consequently, today’s final rule

provides that parties subject to liability

for VAR violations may successfully

assert an affirmative defense to such

liability, provided that the elements

described above are satisfied. This

defense cannot be used, however, to

avoid imposition of liability related to a

detergent blender’s failure to provide

VAR records upon EPA request, as

required pursuant to § 80.170(g). As

previously mentioned, the Agency

needs to review certain limited, but

essential, VAR records during

inspections at detergent blending

terminals. EPA cannot allow parties to

avoid this enforcement necessity

through a privately created contract.

d. Defense to Liability for Gasoline

Nonconformity Violations Based Solely

on the Addition of Misadditized Ethanol

or Other PRC to Gasoline. Under the

interim and certification programs,

gasoline which is properly additized at

a detergent blending terminal can

subsequently become a nonconforming

product when a party downstream of

the gasoline’s additization terminal

blends mis- or unadditized ethanol or

other PRC into the gasoline. The reason

for the nonconformity is that the

combined product fails to attain the

proper additization concentration

through the addition of the misadditized

PRC.

The sale, offering for sale, etc. of

nonconforming gasoline is a violation of

the detergent rule for which all parties

in the relevant gasoline, detergent, and

PRC distribution systems are presumed

liable, although each such party has the

right to assert an affirmative defense to

liability. In addition, branded refiners

are also subject to vicarious liability if

the violation involves branded products.

Neither the NPRM nor the interim rule

addressed the appropriateness of a

special affirmative defense specifically

geared to violations caused by

misadditized PRC.

In commenting on the Reopening

Notice, representatives of the ethanol

industry stated that the interim program

is causing a chilling effect on the use of

ethanol. According to one industry

representative, this situation is brought

about, in part, because parties in the

distribution chain who do not add

ethanol to the product are concerned

about their potential liability if mis- or

unadditized ethanol is subsequently

added to the gasoline. This commenter

asserted that such parties were avoiding

or prohibiting the use of ethanol with

their product because of their

apprehension of potential liability.

As a response to this comment,

today’s final rule provides that the party

not adding the ethanol or other PRC can

avoid the imposition of liability

(whether presumptive or vicarious) in

this situation merely by establishing

that it did not cause the violation, and

that it has PTDs establishing that the

product was in conformity with

program specifications when it left the

party’s control. This provision relaxes

the presumptive and vicarious liability

affirmative defense requirements

established for other violations in the

interim program and proposed in the

NPRM, and thus makes it easier for the

party not adding the ethanol to avoid

liability for nonconforming product.

The Agency believes this is appropriate

because such parties have little control

over this type of violation, and because

the environmental harm of the violation

tends to be mitigated by the industry

practice of slightly over-additizing

gasoline to ensure that actual

additization is above the required LAC.

e. Liability for the Sale of

Nonconforming Gasoline or PRC When

the Gasoline or PRC Also Violates VAR

Requirements. This section articulates

Agency policy about enforcement of

detergent rule provisions when the same

gasoline violates both the VAR standard

requirement and the prohibition against

the sale of nonconforming product.

When gasoline or PRC is misadditized

because it failed to attain the VAR

standard, a VAR violation has occurred.

Only the detergent blender and/or those

whom EPA can establish caused the

violation are responsible for that VAR

violation. However, any party, including

the detergent blender, who sells,

transfers, etc. the nonconforming

gasoline or PRC is also subject to

liability for a different violation, i.e., the

sale, etc. of nonconforming gasoline or

PRC. Any party subject to liability for

any of these violations has the right to

assert an affirmative defense to such

liability.

In the preamble to the interim

program final rule (59 FR 54700), the

Agency made clear that it intended to

treat fairly those parties who

unknowingly sell such non-complying

gasoline. EPA is reiterating that

position. Specifically, when a VAR

standard violation is found, the Agency

does not intend, as a general practice, to

take enforcement action against the

detergent blending party for both the

VAR violation and the violations

stemming from the sale of the same

nonconforming gasoline or PRC.

However, if the circumstances of the
35344 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

violation make the Agency believe that

the imposition of liability for both

violations is appropriate, then EPA will

bring an enforcement action for both

violations. Such unusual circumstances

could include the party’s deliberate

attempt to profit from detergent program

violations, or a pattern of significant and

repetitive VAR standard violations.

In a similar manner, when a VAR

standard violation is found, the Agency

will not generally take an enforcement

action against the non-blending parties

for selling or transferring the

nonconforming gasoline or PRC. The

reason is that parties receiving the

nonconforming product typically have

no practical means of knowing that the

product is misadditized, and,

consequently, they should easily be able

to establish their affirmative defense

element. However, if unusual

circumstances exist indicating that the

non-detergent blending parties had

responsibility for the nonconforming

sale violations, EPA may take

enforcement action against these parties

for such sale violations.

f. Detergent Blender Affirmative

Defense Clarification and Clarification

of Presumptive Liability Arising from

Detergent Blending. Under the interim

program, for detergent blenders to avoid

liability for VAR and product

nonconformity violations, they must

establish the standard detergent rule

affirmative defense elements of lack of

causation and PTD compliance. In

addition, because of their unique status

in the detergent program as the parties

actually adding the detergent to the

gasoline or PRC, they are also required

to establish two additional affirmative

defense elements. First, they must show

that, prior to blending, they received (or

provided) accurate, written blending

instructions including the LAC and any

applicable use restriction information

for the detergent. Second, they must

establish that they have a quality

assurance (quality) program which

includes periodic review of supporting

transfer and measurement documents,

confirming the correctness of the PTD’s

and VAR documents.

At an API detergent additives

compliance task group meeting

discussing implementation of the

interim rule, and through an NPRA

comment on the Reopening Notice (see

Docket items #IV–E–44 & #VI–D–63), the

Agency was advised of industry concern

about this quality program element for

an affirmative defense. The commenters

were concerned that this quality

program defense element might require

detergent blenders to review records of

downstream parties handling the

gasoline, to ensure that these other

parties were complying with detergent

rule requirements. Since these other

parties were not under the control of the

detergent blenders, according to these

commenters, the blenders feared that it

would be difficult for them to fulfill this

responsibility.

The Agency agrees that detergent

blenders should not be required to

review the records or other actions of

parties over whom the blenders have no

control. The Agency’s primary intent in

establishing this affirmative defense

element was to ensure that detergent

blenders properly control and assure the

quality of their own additization

process, not the operations of others

over whom they have no control.

Therefore, EPA is clarifying that the

detergent blender quality program

element applies to the blender’s review

of its own records and the supporting

documents it possesses to confirm the

correctness of its own additization

activities.

Blenders wishing to assert an

affirmative defense should be aware,

however, that they may find it difficult

to successfully establish their lack of

causation if they knew of a customer’s

misadditization of their product, and

they failed to prevent the continuance of

that practice. In such situations, the

blender can control future

misadditizations by refusing to sell to

the violating party. The Agency believes

that, in this unusual situation, the

blender does have some control over

such a violation, and that blenders can,

and should, be held accountable for

reasonable steps to prevent it in order to

establish an affirmative defense.

Today’s rule also clarifies another

point about detergent blending liability.

As proposed in the NPRM and as

codified in the interim rule, regulated

parties are presumptively in violation if

they own, control, etc. the facility where

a gasoline or PRC nonconformity

violation is found. In addition,

applicable parties are presumptively in

violation if they do actions (whether

upstream or downstream of the place

where the violation is found), such as

selling or transferring the product or

components of the product in violation,

which could cause the nonconformity or

other violation and which make it

reasonable for such parties to be

presumptively in violation.

For this latter liability, as was

proposed in the NPRM, the interim rule

specifies the acts giving rise to this

presumptive liability, including such

activities as manufacturing, refining,

selling, dispensing, and transporting the

products in question. While the interim

rule does not specifically mention the

act of detergent blending as one which

would give rise to this liability, the act

of detergent blending is typically

associated with the other activities

(such as selling, dispensing, or

transferring the relevant product),

which are specified in the rule. The act

of detergent blending clearly could give

rise to gasoline or PRC nonconformity

violations. Therefore, today’s

certification rule clarifies that detergent

blending is an activity that will trigger

presumptive liability under both the

interim and the certification programs.

This clarification is within the scope of

the NPRM proposal since it merely

specifies another action that is related to

the other—similar actions—which

precipitate such liability.

g. Liability Clarification. The Agency

received a comment from CMA

requesting clarification as to what

specific violations detergent

manufacturers would be deemed liable

for, and how the continuing days of

penalties would relate to those

violations. CMA stated that the

regulations were unclear, because the

section of the rule which designates the

prohibited acts appeared to make

manufacturers liable for a single event,

such as the sale of non-conforming

detergent, while the penalty provision

appeared to impose liability for all the

days that such non-conforming

detergent remained anywhere in the

gasoline distribution chain. CMA also

claimed that it was unreasonable for

EPA to impose such extended liability

on detergent manufacturers, since their

involvement with the detergent and its

subsequent blending is typically limited

to the initial sale or distribution of the

detergent.

EPA is clarifying in today’s rule that

parties are responsible for causing the

presence of nonconforming products in

their distribution systems, in addition to

their liability for their own sale,

transfer, etc. of nonconforming

products. This scheme for presumptive

liability is similar to that adopted under

several of EPA’s fuel regulations in Part

80, and has been found in practice to

efficiently provide a mechanism for EPA

to identify the party or parties that have

caused a violation, and to impose

adequate potential liability for purposes

of deterrence.

Under today’s rule, if a detergent

manufacturer makes a sale of a

nonconforming detergent, the detergent

manufacturer is liable for a violation of

the prohibition against selling

nonconforming detergent. The detergent

manufacturer is also liable for a

violation for each of the days that any

of the nonconforming detergent from

that sale remains in the detergent

distribution system. In addition, if the
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35345

nonconforming detergent was used by

its purchaser to create nonconforming

additized gasoline or post refinery

component (PRC), then each day that

the nonconforming gasoline or PRC

remains anywhere in the gasoline or

PRC distribution systems, is also

included (but not duplicated), in the

total number of days that the detergent

manufacturer is in violation.

In addition, if there were two original

sales of nonconforming detergent by the

detergent manufacturer, each of these

sales would be a separate violation for

that manufacturer, with additional

separate violations for each day that the

nonconforming detergent from each sale

remains anywhere in the detergent,

PRC, and gasoline distribution systems,

i.e., if detergent from each sale is in its

detergent distribution system or is

found in additized gasoline or PRC in

their distribution systems on a specific

day, then there are two violations for

that day. However, the detergent

manufacturer is not also responsible for

additional violations committed by

downstream parties who deal with the

nonconforming product. The daily

violation for causing the presence of

nonconforming product in the relevant

distribution systems does not change

depending on the number of people

who happen to store, transport, sell or

otherwise deal with the nonconforming

product.

Although the comment related

specifically to detergent manufacturers,

this principle is applicable to all parties’

liability under the detergent program.

Causing the presence of nonconforming

product in the relevant distribution

systems is the basis upon which EPA

established in the interim program the

provision under which penalties

continue to accrue for each day that the

nonconforming product remains in

these distribution systems. Thus, in

clarifying this point in today’s final rule,

EPA has added appropriate language to

§§ 80.155, 80.156, 80.168, and 80.169.

This clarification does not constitute a

change in EPA’s implementation or

intent with respect to either the interim

program or the certification program.

3. Inclusion of Importers of Additized

Gasoline Within the Definition of

Detergent Blender. The definition of

detergent blender in the interim rule did

not include importers of additized

gasoline. It became apparent to the

Agency that this omission interfered

with EPA’s ability to determine if

imported additized product had been

properly additized, since only detergent

blenders are required to maintain VAR

records. EPA thus had less oversight

over importers of additized gasoline

than it did over the domestic detergent

blending parties marketing the same

product, increasing the risk of

importation of misadditized gasoline.

This omission also put domestic

detergent blenders of gasoline at a

competitive disadvantage in relation to

importers.

To correct this problem, EPA

proposed in the Reopening Notice to

amend the definition of detergent

blender to include those parties who

imported additized gasoline. All of the

comments received on this issue

supported the proposed change.

Commenters stated that including

importers of additized gasoline within

the definition of detergent blenders is

fair and closes a gap in EPA’s ability to

enforce the regulation.

EPA agrees with these comments.

Accordingly, today’s final rule includes

importers of additized gasoline within

the definition of detergent blender. This

change applies to both the interim

program and the certification program.

4. Certification Use Restrictions.

Under the interim program, the only

possible detergent use restriction

applies to detergents which have a

separate LAC specific to leaded

gasoline. Such detergents cannot be

used at the leaded-only LAC with

unleaded gasoline. In all other

circumstances, any properly registered

detergent can be legally used with any

gasoline or PRC under the interim

program.

Under the certification program,

however, a detergent may be certified

for one or more restricted uses, thus

taking advantage of lower LACs

applicable to some restricted gasoline

pools (see Section IV). These use

restrictions require corresponding

prohibitions to ensure compliance with

the restrictions, as proposed in the

NPRM. Those parties choosing to take

advantage of the use-restricted

certification options in today’s program

must fully abide by the certified use

restrictions or they will be subject to

liability for violations for the sale,

transfer, etc. of the nonconforming

gasoline or PRC that results from the

noncompliance. The following is a

description of the certification rule’s use

restrictions, followed by a discussion of

a permissible method of removing the

restrictions under appropriate

circumstances.

Under the PADD-specific certification

option, gasoline and/or PRC additized

with a PADD-specific detergent must be

sold, transferred, etc. to the ultimate

consumer or to a retail outlet or WPC

facility, only in that specified PADD.

Detergent certified under the fuelspecific option, may only be blended

into gasoline or PRC that conforms with

the fuel segregation and composition

requirements of the fuel-specific

certification.

Under the national, PADD-specific,

and fuel-specific certification options, if

a detergent is certified with an LAC

which is effective for use only with nonoxygenated gasoline, or only with

gasoline containing a specified

oxygenate (or non-oxygenated product),

then that detergent at that LAC may

only be used with the appropriate base

gasoline or PRC product. In addition,

oxygenates cannot subsequently be

added to gasoline previously additized

at a lower LAC certified for use with

non-oxygenated gasoline. Similarly, an

oxygenate not included in a given

detergent’s certification cannot be added

to gasoline which was previously

additized according to that certification.

Properly additized gasoline may be

commingled with another gasoline

which was properly additized with a

different detergent, even if the second

detergent’s certification includes

different use restrictions from the first.

However, this does not apply to PADD

specific detergents. Gasoline or PRC

additized with a detergent certified

specifically to one PADD may not be

commingled with gasoline or PRC

additized with a detergent certified

specifically to a different PADD since,

by definition, each batch of gasoline,

including any PRC, must be sold or

transferred to the ultimate consumer,

etc., in its own PADD in order to be

considered properly additized.

If, prior to EPA inspection or sale to

the ultimate consumer, a party discovers

that it possesses product that is

nonconforming because of failure to

conform to use restrictions, or that party

wants to use an additized product in a

way that would be nonconforming to

that product’s use restrictions, it is

possible under appropriate

circumstances to cure such

nonconformity. Such a situation may

occur, for example, during mandated

oxygenate seasons, if a terminal has

gasoline which it previously additized

with detergent restricted for use with

non-oxygenated product. In order to

comply with the oxygenate

requirements, such a terminal would be

permitted to add oxygenate to the

gasoline in spite of its oxygenate

restriction, provided the appropriate

curing steps were followed.

The Agency proposed in the NPRM

that violations of certification

restrictions (specifically, PADD-specific

restrictions), would be curable by full

readditization of the product with the

proper PADD-specific detergent.

Commenters from the automotive

industry objected to this approach,
35346 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

claiming that such double additization

could cause combustion chamber

deposit formation.

While EPA agrees that double

additization is not a desirable cure for

use restriction misadditizations, today’s

rule does permit limited readditization

as a curing procedure under appropriate

circumstances. For example, prior to

EPA inspection and discovery of the

problem and prior to sale of the product

to the consumer, readditization is

clearly appropriate in the case of

gasoline that is nonconforming solely

because it contains detergent at a lower

treat rate than required for that gasoline

product. This could occur when a batch

of regular unleaded gasoline is

accidentally additized with detergent at

the lower treat rate certified for use only

with premium gasoline, or when a batch

of oxygenated gasoline is accidentally

additized at a detergent’s lower, nonoxygenated product treat rate. If the

detergent has also been certified at a

higher treat rate for use with the

gasoline product at issue, then the

violation can be cured merely by adding

enough of the detergent to attain the

appropriate, certified treat rate,

pursuant to the formula specified in the

rule. In such cases, documentation in

the form of a ‘‘curing VAR’’ for the

added detergent must be maintained. In

addition, any PTDs created for the cured

product must not include any reference

to the prior use restriction which no

longer applies.

Today’s final rule similarly permits

such curing to enable downstream

parties to add substances which would

otherwise be precluded by the upstream

addition of restricted-use detergent. For

example, oxygenate can be added to

gasoline which already contains a

detergent at a treat rate certified only for

unoxygenated gasoline, provided the

marketer adds at least enough additional

detergent to achieve a combined

detergent concentration no less than the

detergent’s certified LAC for oxygenated

gasoline. In such cases, not only must

the oxygenate component be properly

additized with detergent, but the

previously additized gasoline portion

must be further additized to attain the

certified treat rate for the combined endproduct, i.e., oxygenated gasoline.

However, if a downstream party does

not know which detergent has been

used upstream or does not have access

to it, or if the initial detergent has not

been certified for the downstream

party’s desired use, then the above

provision would not enable the use

restriction to be cured. For this reason,

today’s rule also permits a party to cure

a use restriction, prior to EPA

inspection or knowledge of the problem

and prior to sale to the ultimate

consumer, by adding the proper amount

of any detergent (according to the

formula for such addition provided at

§ 80.169(g)), that has been certified both

for the desired use and the initial use.

For example, oxygenate can be added to

gasoline which already contains a

detergent certified only for

nonoxygenated gasoline, provided an

adequate amount of another detergent is

added which has different LACs

certified for use with nonoxygenated

and oxygenated gasolines. The

minimum amount of new detergent

required is a function of the difference

between its certified treat rates for the

new (e.g., oxygenated) and the initial

(e.g., nonoxygenated) uses.

In a similar manner, if a party has

misadditized gasoline or PRC in

violation of a PADD restriction, the error

can be cured most easily, prior to EPA

discovery of the violation and prior to

sale to the ultimate consumer, by adding

more of the same detergent, provided it

has been certified for the desired use.

However, the violation can also be

cured by adding an appropriate amount

of a different detergent, provided it has

been certified both for the PADD and

the desired use (e.g., national). The

amount of additional detergent must be

based upon the difference between the

LACs for the PADD and other

certification, and must at least equal the

amount determined by the regulatory

formula. In all these instances, the party

must create a readditization VAR to

document the use restriction curing

procedure. If the above procedures are

fully complied with, then the use

restriction is effectively negated, and

any violation that would have resulted

from the use restriction is also obviated.

5. PTD Changes. The core of the PTD

requirements established under the

interim program continue under the

certification program. However, certain

changes and additions to the PTD

requirements have been incorporated

into the final rule. The following is a

discussion of these changes.

a. Elimination of PTD Retention

Requirement for Additized Gasoline for

Wholesale Purchaser-Consumers

(WPCs). Under the interim program,

gasoline WPCs, as regulated parties

under this program, are required to

retain their PTDs for five years.

However, EPA has determined that

retention of PTDs for additized gasoline

by such parties is not necessary.

The Agency’s enforcement of the

interim program thus far has centered

around auditing the VAR activities of

detergent blenders and conducting

paperwork reviews of other parties in

the gasoline distribution system, all as

part of general fuel regulation

compliance inspections. Because

inspections of WPC facilities have not

been extensive, and because EPA does

not expect an increase in such

inspections, EPA will not require WPCs

to retain PTDs for additized gasoline

under today’s final rule. In the unusual

event that they receive any other

regulated product (such as unadditized

gasoline or additized PRC), today’s rule

does require these parties to retain the

PTDs for such unusual transfers. Parties

selling or transferring regulated

products to WPCs are still required to

transfer PTD’s to those parties and to

retain copies of all such PTDs (except as

discussed in the following section).

As proposed under the NPRM and as

is required under the interim program,

the certification program requires WPCs

to receive PTDs at the time gasoline is

transferred to them, so that they can

review these documents to determine

proper additization compliance (with

the one exception for small loads

discussed below). In addition, if a WPC

transfers gasoline to another regulated

party which is not an ultimate consumer

using it in a motor vehicle, then the

WPC is a distributor of the gasoline, and

must comply with all PTD requirements

that apply to distributors.

b. Elimination of PTD Requirements

for Transfer of Small Loads of Additized

Gasoline to Ultimate Consumers. Under

the interim program, all regulated

parties who transfer gasoline or

additized PRC, with the exception of

WPCs or retail outlets transferring

gasoline to the ultimate consumer, are

required to transfer PTDs for that

product to the transferee. Similarly, all

regulated parties receiving the product

must obtain the PTDs from their

transferor. The interim program further

requires that such documents be

maintained for five years from date of

transfer.

The Agency was advised by the

Independent Petroleum Marketers

Association (IPMA) that this PTD

requirement was creating a hardship for

distributors in rural areas who pick up

additized gasoline from terminals, and

then deliver small amounts of this

product to farmers. (See Docket items

VI–D–51, VI–D–52, VI–D–66, and VI–D–

67.) IPMA suggested that such transfers

be made exempt from the PTD

requirements since such sales are

analogous to sales to the ultimate

consumer from retail outlets, which are

exempt from PTD requirements. These

loads are typically divided from the

larger truckloads picked up at the

terminals. New delivery tickets are

created for each of the divided loads,

typically hand written and containing
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35347

minimal information. Thus, the creation

and storage of detailed PTDs for those

small deliveries is unduly burdensome.

The Agency agrees that small sales by

distributors of additized gasoline to

ultimate consumers for their own use

can be considered analogous to retail

sales and should be exempt from PTD

requirements. The PTD requirements

were established to alert regulated

parties and the Agency to the

additization status of the transferred

product. This notification was not

intended to be extended to retail

customers. Further, the small amount of

product involved, and the fact that the

gasoline is not intended for additional

transfer, diminishes even further the

notification value of the PTDs in this

situation.

In light of the purported record

creation and maintenance burdens

associated with these documents, and

because of the minimal notification

value associated with them, today’s

final rule exempts from the PTD

requirements certain transfers of small

amounts of gasoline. Specifically, the

rule exempts transfers of additized

gasoline of no greater than 550 gallons

made by distributors which are not the

detergent blenders of the gasoline, to

ultimate consumers for their own use or

the use of their agents or employees.

The 550 gallon maximum is established

because that is the criteria for minimum

tank size used in the fuels regulations

(40 CFR 80.2(o)) to define a party as a

wholesale-purchaser consumer.

The PTD exemption is further limited

by the type of parties involved with the

transfer. The exemption does not apply

to those distributors actually doing the

detergent blending, since such parties

typically are terminals with equipment

that automatically produces PTDs, and

thus have no need for the exemption.

Further, the exemption is restricted to

small deliveries to ultimate consumers

of gasoline, who are not in the business

of distributing gasoline to other parties.

Deliveries to parties which distribute

gasoline are excluded from this

exemption since such marketers are

responsible for the further transfer of

gasoline to their own customers. The

Agency expects gasoline marketers to

fulfill their regulatory responsibility of

reviewing PTD receipts to ensure that

the product received is properly

additized.

c. Address of the Transferee/

Transferor. The certification program

continues the interim program

requirement that the addresses of both

the transferor and the transferee of the

product are to be listed on the PTD.

Today’s rule also adopts the Q&A

Document modification that allows the

address of the transferee to be identified

on a separate document which must be

made available to EPA inspectors upon

request (Q&A Document #1, Q.15, p.14).

This change responds to industry’s

concern about lack of space on

commercial transfer documents due to

PTD requirements.

For the sake of conformity with the

PTD requirements of the RFG rules (40

CFR part 80, subparts D & E), as

implemented by that rule’s Q&A

Documents, and because of document

space concerns, today’s final rule

expands this alternative procedure to

the identification of addresses of

transferrers also. However, as in the

RFG program, today’s final rule

establishes the following additional

requirements for those who would use

this alternative procedure: (1) The

normal business practice between the

parties must not include listing

addresses on their transfer documents,

and (2) both parties to the transaction

must know and have records of the

required addresses.

d. PTD Identification of Oxygenates

and PRC Added to Gasoline. In

promulgating the interim program, it

was not necessary to require regulated

parties such as refiners to identify on a

gasoline product’s PTD whether the

gasoline had been blended with a

particular oxygenate, since a properly

registered detergent could be used with

any gasoline, including oxygenated

gasoline, sold in the United States.

Using the same reasoning, the Q&As for

the interim program clarified that any

PRC (including an oxygenate) which

was added to gasoline prior to detergent

additization was not required to be

identified on the gasoline’s PTD. (Q&A

Document #2, Q.6, p.11.) If, however, a

PRC was additized separately from the

gasoline, the same Q&A reaffirmed the

regulatory requirement that the

gasoline’s PTD does have to identify the

component, because it is useful for the

Agency and regulated parties to be

aware of the separate additization of the

components.

In contrast, the identification of a

refinery-added oxygenate or a PRC is

very important under today’s final rule,

since a specific detergent certification

may not cover the use of a particular

oxygenate or, under the fuel-specific

certification option, a particular PRC.

Therefore, as originally proposed,

today’s rule requires that all gasoline

product transfer documents identify any

PRC added to the gasoline. It further

extends the identification requirement

to any oxygenate, whether refineryadded or a PRC, added to gasoline.

Without such identification, parties may

inadvertently additize gasoline

containing an oxygenate or PRC with

detergent that has not been certified for

use with that product.

e. Detergent Package Use Restriction

Designations. Since today’s final rule

permits detergents to be certified for use

with a specific fuel, or for a variety of

restricted uses, it is important that the

PTDs for detergent packages identify the

existence of any special use restrictions.

Without such identification, there

would be greater possibility that a

detergent blender would inadvertently

use the detergent with inappropriate

gasoline.

In the NPRM, the Agency proposed

that PTDs for certified detergents with

PADD, fuel-specific, CARB-based, or

leaded gasoline use restrictions must

specify the use restriction that applied

to the detergent being transferred.

Today’s rule adopts the concept that a

detergent’s use restrictions must be

highlighted on the detergent’s PTD.

However, because detergents under

today’s rule may be certified with a

multitude of different LACs related to

different use restrictions, today’s final

rule only requires PTDs for such

products to include a general warning

that use restrictions apply to the

product. The Agency believes that

requiring identification on a detergent

package’s PTD of all the options and

corresponding use restrictions under

which a detergent has been certified

would result in a waste of space on

PTDs for those detergents with

numerous use-restricted LACs.

Furthermore, identification of numerous

LACs could be confusing and counterproductive to the recipient of the

detergent, since many of the use

restrictions may not be relevant to the

particular party receiving the detergent.

Therefore, under today’s rule, if a

detergent has only one certified LAC for

generic use with any fuel product, then

the PTD for the detergent must not

include any reference to use restrictions.

However, if the detergent’s only

certified LAC is for use with a restricted

product (e.g., fuel-specific, leaded only,

premium only, etc.), then the PTD for

that detergent package must identify the

detergent as use-restricted detergent.

Similarly, if a detergent has been

certified with two or more LACs, and

thus has a variety of restricted use

possibilities, the PTD for that detergent

package must indicate that the detergent

has special use options available. The

Agency believes that such PTD

identification will give adequate notice

to detergent recipients of the userestricted status of transferred

detergents, while not presenting so

much information that the recipient

might be misled by it.
35348 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

f. Fuel-Specific Gasoline

Designations. As proposed in the

NPRM, today’s final rule requires that

base gasoline which is segregated for

use with a particular fuel specificdetergent must be identified as such on

its PTD. This identification will help

prevent the use of the specialized

detergent with an inappropriate

gasoline. The PTD for such gasoline

must indicate that it is base gasoline for

use with the designated detergent

package.

Because fuel-specific certification is

based on gasoline from a segregated fuel

supply, oxygenates or PRCs may be

added to the subject gasoline only if

they were specifically included in the

detergent’s fuel-specific certification.

Today’s rule adopts the proposed

provision that base gasoline with

oxygenates or PRCs which were not

included in the designated detergent’s

fuel-specific certification cannot be

identified on its PTD as base gasoline

for use with that fuel-specific detergent.

At the marketer’s option, base

gasoline which is designated for a fuelspecific detergent may be additized with

a different detergent, or at a non-fuelspecific LAC treat rate. The fuel-specific

designation does not require the use of

the fuel-specific detergent, it merely

permits it.

Today’s certification rule also

specifies the proper PTD identification

for the fuel-specific gasoline designated

in a fuel-specific detergent certification

which establishes that such gasoline

does not need to be additized. Because

some unusual gasoline supplies may be

able to pass the performance

requirements of detergent certification

testing without the use of detergents,

today’s rule provides that such gasoline

may be legally sold and transported

under the fuel-specific certification

option. The rule further requires that a

PTD for such product must identify it as

‘‘detergent-equivalent gasoline’’. This is

appropriate nomenclature, since the fuel

is equivalent to additized gasoline in its

deposit prevention capability. The use

of this PTD identification will provide

notice to recipients of the actual

additization status of the product.

g. PADD Designation on PTDs for

Additized Gasoline or PRC. Today’s rule

adopts the proposal that the PTD for

gasoline or PRC additized with a PADDspecific detergent must identify the

product as restricted for ultimate sale or

transfer in that PADD. For example, use

of the phrase ‘‘PADD I only’’ would be

considered acceptable identification of

this restricted use. In a similar manner,

the PTD for gasoline additized with a

CARB-based certified detergent must

identify the product as CARB-based, to

alert recipients that the gasoline must

either have been additized in California

or sold to the ultimate consumer in that

state. (See section VIII(B)(7)(c), below,

for a discussion of specified detergent

rule exemptions for gasoline additized

and sold in California.) As discussed

above, gasoline or PRC may be cured of

PADD or other use restrictions through

the approved readditization curing

process.

h. Identification of Oxygenate and

PRC Use Restrictions on PTDs for

Additized Gasoline. As previously

discussed, a misadditization violation

would arise under today’s rule if

oxygenate or PRC were added to

gasoline additized with a detergent

restricted against that use. Therefore,

successful implementation of the

detergent program requires that gasoline

additized with such detergent must

have a PTD identifying the oxygenate or

PRC restriction. Use of such phrases

such as ‘‘oxygenate use prohibited’’ or

‘‘MTBE use only’’, would be acceptable

identification. Such PTD identification

for the additized gasoline will provide

notice to downstream parties of the

continuing oxygenate or PRC use

restriction applying to the product. It

will also alert these parties to the need

to eliminate the restriction through the

approved curing method if they desire

to add the restricted component.

This PTD identification requirement

for additized gasoline is a modification

of the NPRM proposal, which would

have required that PTDs for additized

gasolines identify the EPA certification

number of the detergent used to additize

the gasoline. Under the proposal, the

use of the specified certification number

would have provided notice to

recipients that the particular use

restrictions certified with that specified

detergent needed to be followed.

However, today’s final rule does not

provide certification numbers for

detergents, since EPA does not believe

that the informational benefits of such

numbers would outweigh the

administrative and recordkeeping

burdens associated with them. As a

more efficient substitute, today’s rule

merely requires that those gasolines

actually additized at a use-restricted

LAC rate must identify the applicable

oxygenate or PRC use restrictions on

their PTDs.

i. Base Gasoline Identification. Under

the interim program rule, all regulated

parties transferring unadditized gasoline

are required to identify the product on

its PTD as base gasoline. In addition,

PTDs for such product are also required

to state the warning that this gasoline is

‘‘Not for sale to the ultimate consumer’’.

These base gasoline requirements

originally proposed in the NPRM were

considered necessary to highlight to the

recipients the significant information

that such unadditized product could not

legally be sold or transferred for

consumer use.

Although the Agency still believes it

is important for unadditized gasoline to

be highlighted as such within the

gasoline distribution system, EPA no

longer considers it necessary to mandate

particular identification language (e.g.

the phrase ‘‘base gasoline’’) for it. EPA

experience in implementing the interim

program has shown that permitting

industry flexibility in complying with

PTD identification requirements has not

resulted in significant identification

problems. Therefore, under today’s final

rule, PTDs for base gasoline may use

any nomenclature which clearly states

that the base gasoline is unadditized.

However, today’s rule does require that

PTDs for most base gasolines must

include the mandated language

specifically warning against the sale of

unadditized gasoline to the ultimate

consumer.

An exception is base gasoline to be

used for research and development

purposes, as discussed below in section

VIII.B.7. Another exception was initially

articulated by EPA in Q&A Document

#1, Q.13, p.13, in response to a refiner’s

suggestion that the consumer-sale

prohibition language was unnecessary

on certain specialized PTDs.

Specifically, an industry party requested

permission to delete this language on

PTDs for contractually controlled bulk

transfers of unadditized product from

refiners to pipelines, when the parties

have a written agreement which states

that the pipeline will not sell or transfer

the unadditized gasoline to ultimate

consumers.

The Agency agreed in the Q&A

Document that transfers between these

parties under these circumstances

should not require the PTD warning

language, because the likelihood of such

unadditized product being mistakenly

delivered to a consumer is minimal.

Today’s final rule codifies this

exception to the PTD warning language

requirement in the limited

circumstances outlined above. The

Agency believes that this modification

of the proposal will not result in the sale

of unadditized product to consumers,

but will reduce the paperwork burden

on refiners and pipelines.

j. Use of Product Codes on PTDs. The

NPRM and interim program did not

address the use of product codes and

other language not specified in the

regulation, to satisfy the information

requirements established for PTDs.

However, both in comments on the
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35349

NPRM, and in implementation feedback

to the Agency (See Q&A Document #1,

Q.13, p.13), regulated parties requested

permission to use product codes to

satisfy PTD information requirements

proposed in the NPRM and codified in

the interim program. The rationale given

by the parties supporting such

substitution is that the use of product

codes would greatly reduce the amount

of space needed to convey the required

information.

The Agency is sympathetic to

industry’s need to conserve space on

commercial documents because transfer

documents have to comply with several

regulatory information requirements,

not only those associated with the

detergent rule. In response to this

concern, the Agency issued a Q&A

Document which permitted the use of

product codes to comply with the

interim program’s PTD requirements,

provided certain conditions were met

(Q&A Document #1, supra.) The

conditions are designed to ensure clear

communication of the information

required by the regulation.

Under the Q&A guidance, product

codes or other alternative language must

be clear, accurate, and not misleading.

They must be standardized throughout

the distribution system in which they

are used, and downstream parties must

be informed of their full meaning.

However, parties may not use product

codes or alternative language to

substitute for the two required warnings

found in the interim regulation. These

are the prohibition against the sale of

base gasoline to the ultimate consumer,

and the statement that a detergent

certified only for the control of

carburetor deposits must be used with

leaded gasoline only. The Agency

believes that these warnings are so

important that abbreviations or

substitutions for them would not

provide adequate notice to receiving

parties.

Today’s final rule codifies this

approach. The rule’s provision requires

such codes to be clear and accurate, so

that any parties transferring PTDs with

product codes or alternative language

which are confusing or not effectively

explained to downstream parties, are

not in compliance with the detergent

rule’s PTD requirements. Such parties

are also liable for any product

nonconformity violations caused by the

non-complying PTDs.

Today’s rule does not prohibit the use

of product codes to convey the leaded

gasoline only warning, since PTD

notification requirements for all

detergent package use restrictions,

including the leaded gasoline

restriction, are treated in the same way

under today’s final rule (See preamble

section VIII.B.5.e.). Instead, compliance

with the generic use-restriction language

is required, to provide effective notice to

recipients of the detergent package that

the use of the detergent is subject to

conditions.

As discussed in the previous section,

today’s rule does not permit, in most

instances, substitution for the regulatory

warning language against the sale of

base gasoline to the ultimate consumer.

However, electronic data transmissions

cannot accommodate the PTD regulatory

language for base gasoline transfers.

Consequently, as under the RFG

program, today’s final rule permits the

warning language on electronic PTDs to

be reflected by product codes, provided

that such documents are for title

transfers only, and do not involve actual

transfer or possession of the product.

Under the specified conditions, the

Agency does not believe that the

absence of the exact regulatory warning

language from the electronic PTDs will

result in the improper transfer of

unadditized product.

k. PTD Requirements for Gasoline

Overadditized for the Later Addition of

Ethanol or Other PRC. Under the

interim rule, when gasoline is

overadditized to account for the later

addition of unadditized PRC, the PTD

for the gasoline must indicate that the

product has been overadditized to

account for the later addition of a

specified volume of PRC. The purpose

of this requirement is to provide notice

to the recipient that only the stated

volume of PRC has been accounted for

by the gasoline’s overadditization.

At the 1994 API public seminar on the

interim program, EPA received industry

feedback that it would be difficult for

marketers to identify on PTDs the actual

amount of anticipated ethanol that the

particular overadditization accounted

for, and that it would be much more

convenient and preferable to identify

the standardized, maximum percentage

of product volume that the anticipated

ethanol could comprise (See Docket

item IV–E–45). For example, most

blenders using this procedure would

over-additize a batch of gasoline in

anticipation of the later addition of

ethanol amounting to no greater than 10

percent of the fuel’s finished volume.

The Agency believes that

identification of the maximum

percentage of total product volume that

the blender anticipates will be PRC, and

for which the blender has additized,

will provide adequate notice of the

maximum amount of such product that

may be added to the additized gasoline.

Therefore, EPA stated at the API

seminar that blenders could identify on

PTDs the amount of ethanol that could

be added to overadditized gasoline

either by this percentage, or by the

volume of ethanol. Today’s final rule

codifies this change as to ethanol and

other PRCs.

6. Extension of the Agency’s Right of

Entry into Facilities of Detergent

Manufacturers, Distributors, and

Carriers. Neither the NPRM nor the

interim program addressed the Agency’s

authority to enter and inspect the

premises of parties in the detergent

distribution system. The EPA believes

that such authority is included in its

information gathering authority under

section 114, as well as in its authority

to regulate detergents under section

211(l) of the Clean Air Act, and in its

general authority under section 301(a).

Therefore, EPA proposed in the

Reopening Notice to expand its right of

entry provision located at 40 CFR 80.4.

Section 80.4 currently states that the

Administrator or her authorized

representative may enter the premises of

parties in the gasoline distribution

system to make inspections, take

samples, and conduct tests to determine

compliance with EPA fuels

requirements under 40 CFR Part 80. In

the Reopening Notice, the Agency

proposed expanding this section to

include entry into the facilities of the

detergent manufacturers, distributors,

and carriers now regulated under Part

80.

Only one commenter, the Chemical

Manufacturers Association, opposed the

proposal, and did so only in regard to

detergent manufacturers. CMA stated

that section 211(l) does not make it

unlawful for detergent manufacturers to

produce or store detergents out of

conformity with EPA specifications.

CMA argued that EPA’s only legitimate

concern under section 211(l) was to

ensure that detergents met

specifications when they were blended

into gasoline. This commenter believed

that the Agency could adequately

address this concern by sampling

detergents only at the premises of

detergent blenders. Thus, argued CMA,

EPA’s right to enter and inspect the

premises of a detergent manufacturer

could not be considered necessary to

carry out its functions under the Act

and was, therefore, not authorized

under section 301.

The Agency disagrees with CMA’s

argument. The Agency believes that it is

necessary for EPA to inspect the

premises of detergent manufacturers,

both to enforce the detergent

specifications mandated by section

211(l), as well as to prevent the creation

of misadditized gasoline which would

also be in violation of section 211(l).
35350 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

Detergent manufacturers can clearly

cause detergents to fail to conform to

required specifications through their

improper manufacture of the detergents.

Their sale of such nonconforming

detergent, which is a violation of the

detergent program in itself, would then

cause other violations of the program,

namely, the sale of misadditized

gasoline based on that detergent

nonconformity.

To ensure that the regulatory

detergent specifications are met and that

detergent is not sold which would cause

the sale of misadditized gasoline, it is

necessary for the Agency to sample and

test detergent at all points in its sale/

distribution system, including at

detergent manufacturer facilities. It

would be counter-productive and

impractical for the Agency to wait to

sample and test nonconforming

detergent until a detergent blender is

actually in the process of using it, or has

already used it, in violation of section

211(l) prohibitions. Thus, the Agency’s

ability to inspect the premises of

detergent manufacturers is reasonable

and necessary for EPA to effectively

carry out its statutory mandates.

7. Exemptions. As proposed in the

NPRM, the interim program includes an

exemption from the requirements of the

detergent rule for detergent used for

research, development, and testing

purposes. Also exempt under the

interim program are aviation fuel and

racing fuel. Several parties commenting

on the interim program have requested

modifications of these exemptions. (See

Docket items #IV–E–41, VI–D–08 and

VI–D–69.) The following is a discussion

of the exemptions finalized today,

including a discussion of the newlyincluded California gasoline

exemptions.

a. Research, Development, and

Testing Exemption. In the NPRM, EPA

proposed that parties conducting

research and development (R&D) testing

of gasoline and detergent additives

could apply to the Agency to obtain

detergent rule exemption waivers for

their products. Pursuant to industry

comment that the proposed waiver

procedures were burdensome and

unnecessary, the interim program

established an R&D-exemption which

did not require a specific EPA waiver.

Under this provision, detergents that are

in a research, development, or test

status, or are sold to petroleum,

automobile, engine, or component

manufacturers for such purposes, are

exempt from the rule’s requirements,

provided that (1) the detergent or the

fuel containing the detergent is kept

segregated, (2) documentation identifies

the product as R&D and states that it is

only to be used for R&D purposes, (3)

the product is not sold or transferred, or

offered for sale or transfer, from a retail

outlet, (4) if the detergent is transferred

or offered for transfer from a WPC

facility, that facility is R&D associated,

and (5) the party using the product

notifies EPA at least annually, and prior

to usage, of the purposes of the R&D

program and the volume of the product

to be used.

A comment on the Reopening Notice

pointed out that this R&D exemption

did not appear to include base gasoline

to be used for R&D purposes. This

commenter suggested that EPA

specifically add base gasoline to be used

for R&D purposes to the products being

exempted under the rule. The

commenter also suggested amending the

PTD warning requirements for base

gasoline, so that a base gasoline PTD

could say either that the product was

not for sale to the ultimate consumer or,

if appropriate, that it was to be used

only for R&D purposes.

The Agency agrees with this comment

about the R&D exemption. The omission

of R&D base gasoline from the language

of this exemption provision was

unintentional. Today’s final rule

therefore corrects this omission and

specifically includes within the

exemption all R&D gasoline, both base

and additized product. The rule

requires, however, that for gasoline to be

exempt under this provision, it must be

used by an appropriate R&D institution,

i.e., a manufacturer of additives,

gasoline, automotive parts, or

automobiles, or it must be used under

the control of such a party. This

requirement will ensure that only

parties legitimately connected with

petroleum, additive, or automotive

research and development will be able

to use the exemption.

In response to the request that EPA

allow PTDs for R&D base gasoline to

identify the product as such, and to

state ‘‘For R&D purposes only’’ instead

of the general warning against sale to

the ultimate consumer, today’s final rule

permits such information on PTDs for

this fuel.

CMA commented that the R&D

exemption requirement of prior and

annual notification to EPA was unfair

and burdensome. This commenter

asserted that such notification was not

required for the other detergent rule

exemptions, and therefore should not be

required for this one. Further, CMA

argued that the actual volume of R&D

product to be used in an upcoming year

was not knowable at the beginning of

the year, which would make it difficult

to comply with the reporting

requirement. Both CMA and a second

industry commenter (Docket item #VI–

D–57) believed that the notification

requirement was confusing as to which

parties had to report, because contract

laboratories often perform research on

behalf of the gasoline, additive, or

automotive manufacturers.

While today’s final rule retains the

annual notification requirement for the

R&D exemption, EPA has modified the

requirement in response to these

comments. The Agency believes that

annual notification is necessary because

it alerts the Agency to intended R&D

product use. The Agency can then

inspect the R&D facilities to ensure that

the exempted product is actually being

used for legitimate R&D purposes. In

addition, the prior notification

requirement is useful for enforcement

purposes because any party attempting

to assert R&D status as a rationale for

noncompliance will first have to

establish that it previously notified the

Agency of its intended R&D use.

However, in response to commenter

concern, the final rule does ease the

R&D notification requirements. The rule

permits either the party actually

conducting the research or the party

controlling the research to make the

notification to EPA. Therefore, if they

choose, manufacturers can submit one

annual notification to cover all the R&D

products that their contract laboratories

are testing for them, obviating the need

for contract laboratories to submit

multiple notifications for their varied

testing work. Moreover, the annual

notification need only identify a

reasonable estimate of the R&D product

to be used in the coming year, rather

than a certain amount.

b. Racing and Aviation Fuel

Exemptions. As proposed in the NPRM,

the interim program included an

exemption from detergent rule

requirements for fuel sold, transferred,

etc. as automotive racing fuel and for

fuel sold, etc. as airplane engine fuel.

For such fuel to be exempt, it must be

kept segregated and must be

accompanied by documentation

identifying it as racing or aviation fuel,

not for street or highway use. The

exemption provision also required that

the product not be sold or transferred

from a retail outlet.

Several comments on the NPRM

protested the restriction that racing fuel

sold or transferred from a retail outlet

would not qualify for the exemption.

These comments stated that prohibiting

the sale of such fuel at retail outlets

would be unfair to auto racing

participants, since some racing facilities

do not have fuel pumps available.

Further, the comments alleged that this
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35351

29See Docket item VI–D–68 for a summary of

CARB’s detergent program enforcement actions.

30See Docket item VI–D–55 regarding the 9/29/

95 Proposed Amendments to CARB’s Detergent

Additive Rule.

requirement would discriminate

unfairly against retail outlets.

The interim program’s exemption for

racing fuel included the retail outlet sale

restriction because such fuel, which

normally has a high lead content and

lacks detergent additives, is not

appropriate for street or highway use.

Retail outlets, by their very nature, are

facilities at which fuel is sold to

consumers for street or highway use.

Therefore, the Agency believed that

permitting the sale of this product at

facilities regularly selling gasoline to

general consumers would be conducive

to the illegal sale and use of this

exempted product.

EPA remains concerned about this

potential problem, but agrees with the

commenters that completely prohibiting

the sale of exempt racing fuel at retail

outlets is an unnecessarily broad

solution. Therefore, today’s final rule

places less restrictive requirements on

the sale of exempt racing fuel to protect

against the sale of this product to

highway-use consumers.

The product segregation and

documentation requirements

promulgated in the interim program will

continue under today’s rule. Also, the

rule affirms that the exemption is

confined to fuel distributed to racing

vehicles that are restricted for

nonhighway use. This requirement is

consistent with that of the RFG program.

The consistency between the two fuels

programs will make it easier for parties

to comply with both programs. In

addition, today’s rule requires that

pumps from which racing fuel is

dispensed must be clearly labeled as

such.

The Agency believes that these

provisions will prevent the improper

use of unadditized racing fuel in

highway vehicles as effectively as the

proposed retail outlet sale prohibition

would. At the same time, these

requirements do not unfairly

discriminate against retail outlets but

apply, instead, to all parties selling or

transferring racing fuel.

It is a violation of today’s rule to sell

product claimed to be exempt racing

fuel and not properly additized to a

consumer for street or highway use. The

Agency believes that parties who sell or

transfer the product to inappropriate

recipients may have difficulty

establishing for an affirmative defense

that they did not cause the violation if

they cannot demonstrate that they

complied with the exemption

requirements and that they had taken

reasonable steps to ensure the product

would be used in the proper manner so

that the exemption would apply.

Today’s rule continues to exempt

aviation gasoline. Similar to the

exemption for racing fuel, today’s rule

requires dispensers of exempt aviation

gasoline to properly label the aviation

pumps, and to sell or transfer the

product for aviation use only. The

interim program’s segregation and

documentation requirements for this

product are also continued in today’s

rule. The Agency believes that these

requirements will ensure that the

exempt product is used only in aviation

engines.

c. California Gasoline Exemptions.

The interim program requires that

gasoline additized and sold or

transferred to the ultimate consumer in

California is subject to all the

enforcement-related provisions of the

Federal detergent program, including

the VAR and paperwork requirements,

in spite of the fact that CARB is also

regulating this fuel under its own

detergent program. At the time the

interim rule was promulgated, EPA was

concerned that CARB’s detergent

program might not be as effective as the

Federal program in ensuring compliance

with the Federal standards for proper

additization. However, CARB’s

enforcement of its detergent regulation

program has proven to be very vigorous,

and its enforcement requirements have

been shown to be effective.29 Further,

CARB has proposed changes to its

detergent program which would make

CARB’s program even more rigorous in

the future.30

Therefore, EPA now considers that

CARB’s VAR and paperwork

requirements, even under the present

CARB statutory language, will be as

effective in ensuring compliance with

the Federal standards as are their

Federal program equivalents.

Consequently, EPA has decided to

create exemptions for California

gasoline from the Federal VAR and PTD

provisions. Since the equivalent CARB

record keeping and reconciliation

provisions are effective, these Federal

enforcement requirements would be

superfluous in California.

Today’s rule merely exempts the

specified California gasoline from

certain Federal enforcement program

requirements that are unnecessary in

California. Specifically, gasoline

additized in California is exempt from

the Federal VAR requirements, and

gasoline sold or transferred wholly

within California is exempt from the

Federal PTD requirements. Such

gasoline is still subject under today’s

rule to the general requirements of

additization and sale in conformity with

Federal certification requirements, since

Congress mandated the additization,

pursuant to EPA specifications, of all

gasoline sold to consumers in the

United States. California detergent

blenders can comply with both the state

and Federal requirements by using

detergents which have CARB-based

Federal certifications, and following the

CARB-mandated record keeping and

VAR procedures. EPA will evaluate

California blenders’ compliance with

the Federal LAC standards by

examining the records of the same type

mandated by CARB, plus the CARBmandated type of records for gasoline

additized in California for ultimate sale

elsewhere. The Agency does not expect

to regularly conduct detergent program

inspections in California. EPA believes

that CARB’s enforcement of the

California requirements will adequately

assure compliance with Federal

standards. However, if EPA believes it

appropriate, the Agency will conduct

detergent program inspections of

California facilities.

To ensure that the Agency will have

access to the same amount of

compliance records for California

detergent blenders as for blenders

outside of California, today’s final rule

requires California-regulated parties

who operate under the exemption from

the Federal VAR requirements to

maintain the detergent program records

required by CARB (and the same type of

records for gasoline to be sold outside

of California), for the same five-year

period that records are required to be

maintained under the Federal program.

The Federal VAR exemption is

predicated on this record creation and

maintenance. The Agency will thus be

able to review these compliance records,

if and when it chooses to inspect

California facilities, covering the same

time period that applies in other states.

The California gasoline exemptions

from the specified VAR and PTD

provisions of the Federal detergent

enforcement program are also

predicated on EPA’s conclusion that the

CARB program is as effective as the

Federal program in ensuring compliance

with the Federal detergent standards.

EPA intends to monitor CARB’s

program to ensure that these exemptions

continue to be justified. If EPA

determines that changes in CARB’s

regulations or its enforcement practices,

or other changed circumstances, would

compromise the CARB program’s ability

to ensure compliance with Federal

additization standards, then EPA may
35352 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

delete these exemptions through a

future rulemaking.

C. Proposed Changes Not Incorporated

in the Certification Rule

Several changes to enforcement

provisions of the interim program were

proposed in the Reopening Notice but

are not incorporated in today’s

certification rule. The following is a

summary of these proposed changes

along with the reasons they were

ultimately rejected by the Agency.

The first such nonfinalized proposal

would have required the use of meters

on all automated additization

equipment injectors. EPA proposed this

metering requirement to promote greater

additization accuracy. However,

comments on this proposal universally

condemned it as being expensive,

disruptive of industry’s present

operating procedures, and not

necessarily effective in ensuring greater

accuracy. The commenters believed that

the detergent program should continue

to permit blenders to use their existing

equipment, unless enforcement

experience established a need for greater

accuracy.

These comments are persuasive. EPA

enforcement experience of the first year

of the detergent program has indicated

minimal problems with non-metered

records. Therefore, the extra expense of

new metered additization equipment

has not proven to be necessary.

The second nonfinalized proposal

would have required VAR volumes to be

recorded to the nearest tenth of a gallon,

instead of the nearest gallon

requirement established under the

interim program. Commenters disputed

the need for increasing the severity of

the recording requirement, since some

additization systems cannot measure

volumes to that degree of precision and

installing new equipment would be very

costly. At the same time, commenters

asserted that increasing the precision

would not bring noticeable benefits in

greater additization accuracy. In

particular, it was pointed out that

recording volume figures to one tenth of

a gallon, for the large volumes of fuel

typically being recorded, would be

meaningless in improving additization

compliance.

The Agency finds these comments

persuasive, except as regards VAR

reporting of detergent volumes of five

gallons or less. Reporting such small

amounts of detergent only to the nearest

gallon would create a greater than 10

percent degree of inaccuracy in

reporting the additization that actually

occurred. The Agency believes that this

is an unacceptable level of inaccuracy in

VAR compliance reporting. Therefore,

although the proposed change to a tenth

of gallon reporting is not generally

incorporated in today’s final rule,

detergent volumes of five gallons of less

are required to be recorded on the VAR

formula records to the nearest tenth of

a gallon (or smaller unit), if the

blender’s equipment can measure to this

level. If not, such volumes are to be

reported down to the nearest gallon.

This procedure will address EPA’s

concerns for accurate reporting of

additization, while also meeting

industry’s objection to purchasing

upgraded equipment merely to ensure

this accuracy.

Another proposed change not

incorporated in today’s final rule was

the imposition of a minimum detergent

concentration for each gallon of gasoline

additized, in addition to meeting the

VAR averaging requirement. This was

another proposal that industry

commenters to the Reopening Notice

consistently opposed, primarily because

of the huge expenses they said would be

entailed for installing additization

equipment that could monitor pergallon compliance. Commenters argued

that little gain would result from this

requirement, since deposit formation

occurs over the long term. Therefore,

according to these commenters, the

compliance already required under the

VAR averaging procedures should be

adequate to prevent such buildups.

EPA concedes the points made, and

has chosen to delete the proposed

requirement of per-gallon minimum

additization. This decision could be

revisited in the future, however, if

experience shows that such additional

compliance requirements are necessary

to effectively prevent deposit formation.

The fourth change not incorporated

was the extension of presumptive

liability for VAR violations to all

parties, except upstream carriers, in the

product’s distribution system. See

Section VIII.B.2.b. for a discussion of

this issue.

The final proposed change from the

Reopening Notice that was not included

in today’s rule was the prohibition

against the use of multiple equipment

set rates within one VAR formula

record. The Agency was concerned that

if gasoline additized under several

detergent concentration set rates were

included within the reported VAR

volumes in the same formula record,

then there would be inadequate

assurance that the gasoline additized at

the lower rates was in compliance with

the LAC standard. Compliance at the

higher rates could mask noncompliance

in the lower rates. Therefore, the

Agency proposed the prohibition

against the use of multiple set rates

within the same VAR record.

Detergent blender commenters to this

proposal wanted to retain the ability to

use multiple set rates in the same VAR

record because it would minimize their

VAR paperwork burdens and would

allow the use of present equipment.

They rejected the need for the proposed

prohibition, arguing that the interim

program’s prohibition against setting

any injector’s set rate lower than the

LAC and the additional prohibition

against adjusting any injector’s set rate

higher than 10 percent of its initial

setting, would effectively ensure that

the gasoline additized at the lower treat

rates also attains the LAC standard.

The Agency agrees with these

comments that the interim program’s set

rate requirements do provide some

insurance that the gasoline additized

under the lower concentrations will be

adequately additized. Therefore, EPA

does not consider the added paperwork

and equipment expenditures associated

with the proposed multiple set rate

prohibition to be warranted. However,

the certification program maintains the

interim program requirement that

detergents being used at different LACs

must be recorded and reconciled on

separate VAR formula records (See

section VIII.B.2.e.). Since VAR

compliance is based on the comparison

of the actual detergent concentration

attained with the appropriate LAC

certified for the fuel product being

additized, each restricted LAC must be

separately compared to the respective

additized product.

To make this requirement meaningful,

the certification program continues the

interim program’s requirement that

blenders using a detergent at different

LACs must have the ability to accurately

measure the additization occurring

under each LAC. Both the interim and

certification programs provide

flexibility to blenders in satisfying this

requirement. For example, such

blenders could measure usage from

different tanks containing the detergent

being used at different LACs, use a

separate meter on an injector that is

additizing under a separate LAC, or use

a meter capable of distinguishing

additizations under separate LACs.

In summary, for the reasons outlined

above, EPA agrees with the

overwhelming majority of commenters

to the Reopening Notice that the above

compliance provision modifications

discussed in this section should not be

adopted. To date, EPA’s enforcement

experience with the interim program

has shown a high level of additization

compliance. If future experience reveals

that current enforcement provisions are
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35353

31 The RIA was prepared in conjunction with the

interim detergent program based on costs and

benefits projected for the detergent certification

program (Docket item V–B–01). An addendum

updating the RIA was prepared to reflect minor

changes in program costs from those projected in

the original analysis (Docket item V–B–03).

inadequate, then EPA may revise these

provisions through another rulemaking.

IX. Administrative Requirements

A. Administrative Designation and

Regulatory Analysis

Under Executive Order 12866 (58 FR

51735, Oct. 4, 1993), the Agency must

determine whether this regulatory

action is ‘‘significant’’ and therefore

subject to OMB review and the

requirements of the Executive Order.

The order defines ‘‘significant

regulatory action’’ as any regulatory

action 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.

Pursuant to the terms of Executive

Order 12866, EPA has determined that

this final rule is a ‘‘significant regulatory

action’’. EPA’s regulatory impact

analysis (RIA),31 available in the public

docket and summarized below,

indicates that the annual costs to

producers for compliance with the

requirements of the certification

program are expected to exceed $100

million. Therefore, EPA has treated this

action as significant and has submitted

a regulatory analysis to the Office of

Management and Budget (OMB) for

review.

The total cost of the detergent

additive certification program includes

costs associated with certification

testing and additional registration and

record-keeping requirements, as well as

additization costs. Over 90 percent of

the total estimated cost of the program

is associated with the price of the

additives needed to bring all gasoline up

to the effective detergency levels which

much of U.S. gasoline already contains.

The average incremental cost to

consumers is projected to be

approximately 0.10 cents per gallon of

gasoline. This amount will be partially

compensated for by the increased fuel

economy and decreased maintenance

requirements which improved deposit

control is expected to provide.

The gasoline detergent additive

requirements are expected to result in

reductions in motor vehicle emissions

of hydrocarbons, carbon monoxide, and

oxides of nitrogen, totalling over one

million tons during the 30-month

interim program and about 600,000 tons

per year under the detergent

certification program. These emissions

reductions will be achieved at relatively

low cost, i.e., about $226 per ton. Fuel

economy benefits are also expected as a

result of the detergent program,

amounting to nearly 450 million gallons

during the 1995–2001 period. The

savings associated with this fuel

economy benefit are expected to

partially offset the costs of the program,

decreasing the cost per ton of emissions

reduction to $120.

The program is not expected to be a

significant cost burden to individual

businesses, and adverse effects on

competitive relationships are not

expected. In fact, this rule should result

in increased sales and business

opportunities within the fuel additive

industry. Any written comments from

OMB and any EPA response to OMB’s

comments are available in the public

docket for this rule.

B. Regulatory Flexibility Act

EPA’s analysis of the impact of this

rule on small entities is included as

Chapter 5 in the Regulatory Impact

Assessment (RIA) that was prepared in

association with the interim program as

described above.

The analysis shows that the regulatory

responsibilities of the various types of

businesses affected by this rule, along

the chain from gasoline refiner to

distributor to retailer, differ

significantly. For each type of business,

however, even for the small business

entities in this chain, the costs of the

regulation are estimated to be modest.

The largest costs will be incurred by

gasoline producers in the price of the

additional detergent additive required to

be added to gasoline. However, this

basic cost is essential to the Clean Air

Act mandate and for realization of the

program’s emission control objectives.

Also, to some extent, additization costs

are expected to be passed along the

distribution chain to consumers. In the

case of small additive manufacturers

and additive injection equipment

manufacturers, rather than being unduly

burdensome, this regulation could result

in significant economic opportunities

through increased sales.

The addendum to the RIA, as noted in

the previous section, was prepared to

reflect minor changes in the regulatory

program from the previous analysis.

Relevant changes were primarily

associated with the cost of detergent

certification testing, especially in regard

to test fuel qualification. For small

additive manufacturers, which are likely

to use the services of contract

laboratories for certification testing,

such costs can be largely defrayed by

cost sharing, since ‘‘proven’’ test fuels

can be used by an unlimited number of

laboratory customers. Furthermore, the

economic benefits to small additive

manufacturers of the requirements for

detergent use will more than

compensate for the manufacturer’s

certification costs under this rule. Thus,

as was found in the original analysis,

the addendum to the RIA concluded

that significant adverse economic

impacts on small businesses are very

unlikely to occur as a result of this rule.

Consequently, EPA has determined that

this rule will not have a significant

adverse impact on a substantial number

of small entities.

C. Paperwork Reduction Act

The changes to the detergent

program’s information collection

requirements in this rule have been

submitted for approval to the Office of

Management and Budget (OMB) under

the requirements of the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq.

An Information Collection Request

document has been prepared by EPA

(ICR No. 1655.03) and a copy may be

obtained from Sandy Farmer, Regulatory

Information Division; EPA; 401 M

Street, SW. (Mail Code 2137);

Washington, DC 20460, or by calling

(202) 260–2740. These new

requirements are not effective until

OMB approves them. The information

collection requirements currently in

force under the interim detergent

program (ICR No. 1655–02) will

continue to be effective until replaced

by those contained in today’s rule. In

addition, many of the information

collection requirements unique to the

detergent certification program were

anticipated in the NPRM and were

previously approved by OMB (ICR No.

1655–01). These requirements will also

be effective until the requirements

contained in today’s rule are approved

by OMB.

The information to be collected is

necessary for the Agency to ensure that

detergent additives that are effective in

controlling deposits are used and that

the emissions control goals of this
35354 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

regulation are realized. The information

will be used by the Agency to evaluate

whether the deposit control

performance standards in today’s rule

have been satisfied, that detergents are

blended into gasoline at the required

levels, and that the restrictions placed

on the use of detergents certified under

the different certification options are

observed. The information collection

requirements are mandatory apart from

those associated with maintaining

affirmative defenses. Section 114 of the

Clean Air Act (CAA), 42 U.S.C. 7414

authorizes EPA to require recordkeeping

and reporting regarding enforcement of

the provisions of Title II of the CAA,

including the provisions related to this

rule. Any information or detergent

samples submitted to EPA for which a

claim of confidentiality is made will be

safeguarded according to EPA

regulations at 40 CFR 2.201 et seq.

The following estimates of this

collection requirements hourly and cost

burden include the time 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

respond to a collection of information;

search existing data sources; complete

and review the collection of

information; and transmit or otherwise

disclose the information.

The desegregated hourly burden

estimates for this collection are as

follows:

(a) Additive manufacturers: (1) EPA

estimate that two research exemptions

will be reported each year per

respondent at about 0.08 hr. per

response, with 59 total respondents; (2)

The certification testing recordkeeping

burden is estimated at approximately

3.5 certifications per respondent in 1996

and 1997 with 59 total respondents. In

1998 and following years this is

estimated to drop to approximately one

certification per respondent. The burden

initially includes about 382

certifications but is reduced

dramatically to a turnover rate of about

15 percent of the initial number of

certifications annually in future years.

The burden per certification response is

estimated to be less than 90 hours. The

1997 hours for all respondents is

approximately 21,830. This is reduced

to about 5,160 hours in 1998 and 1999;

(3) Other yearly requirements are

customary business practices or have no

hourly burden except a 0.15 hr. burden

to review the instruction for quality

assurance provision;

(b) Refiners and importers: (1)

Refiner/importer voluntary quality

assurance for defense involves about 20

responses per respondent with about

0.01 hr. per response. One hundred

parties are estimated to perform these

voluntary quality assurance procedures;

(2) Other requirements involve no

hourly burden;

(c) Terminals who blend detergent:

The monthly detergent use accounting

records requirement is largely a

customary business practice that was

adapted to EPA format under the

previous interim rule. It is estimated

that there will be 12 responses per year

per detergent for each terminal. The oncustomary business practice hourly

burden per terminal per month is about

0.01 hour. It is estimated that there

might be as many as 1,246 respondents;

(2) The required calibration of terminal

equipment is already performed,

however, the rule requires that it be

performed at least twice per year. The

associated non-customary business

practice burden per response associated

with this calibration requirement is

estimated at 0.21 hours, with 1,200

automated terminals participating. The

startup burden per terminal to read rule/

instructions is estimated at 0.25 hr; (3)

It is estimated that 1,246 terminals

conduct recordkeeping quality

assurance on 15 occasions per year at

0.02 hr. per review; (4) Other

requirements require no hourly burden;

(d) Truckers who hand blend

detergent: It is estimated that truckers

who hand blend detergent might do so

on as many as 875 occasions annually,

with approximately 0.03 hour per

response and 100 total respondents

annually for this requirement; (2) Other

trucker requirements are customary

business practices;

(e) Retailers and wholesale purchaserconsumers: It is estimated that retailers

and wholesale purchaser-consumers of

gasoline who also dispense detergentexempt aviation fuel or racing fuel will

spend 0.55 hrs to label pumps. This is

a one-time requirement for a total of

5,000 respondents.

The disaggregated cost estimates for

this collection are as follows:

(a) Additive manufacturers: (1) It is

estimated that the 59 respondents will

spend a total of $559,967 in 1996 and

$697,882 in 1997 for recordkeeping

involving the approximately 382

certifications that will occur initially.

This is reduced to $163,060/year in

ensuing years since it is estimated that

15 percent of the number of initially

certified additives will be certified

annually after the program’s first year.

For certification testing itself, there are

no capital costs; most of the additives

tested will be tested in-house on

existing equipment already used as a

customary business practice by these

manufacturers. Test costs for 1997

average $242,559 per party for 59

parties, and in 1996 average $210,921

per party for 59 parties. For 1998 and

beyond, the cost is estimated to fall to

$63,276 per party. These parties will

also spend about $4.86 per year for

exemption notices and will have a

startup cost of about $4.80 in 1996 for

a quality assurance program that is

otherwise a customary business

practice;

(b) Refiners and importers: It is

estimated that 100 refiners and

importers of gasoline will pay $2,564

per year per party for voluntary defense

quality assurance;

(c) Terminals: The VAR records for

terminals are expected to cost each of

1,246 terminals about $2.28 per year

beyond customary business practice

costs. Calibration requirements are

expected to cost each of 1,200 terminals

about $13 each beyond customary

business practices with a startup cost of

$8 per respondent in 1996 for reviewing

the changed requirement. Record checks

are expected to cost each terminal about

$8.00 per year;

(d) Truckers: If any truckers hand

blend a large number of loads per year,

the cost per trucker could be as high as

$691 per year. Other costs are customary

business practices;

(e) Retailers and wholesale purchaserconsumers: It is estimated that retailers

and wholesale purchaser-consumers of

gasoline who also dispense exempt

aviation gas or racing gas will pay about

$12.60 in the first year for labelling their

pumps and about $1 each year after for

the capital cost of purchasing the label.

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 Ch. 15.

Send comments on the Agency’s need

for this information, the accuracy of the

provided burden estimates, and any

suggested methods for minimizing the

respondent burden, including through

the use of automated collection

techniques to the Director, Regulatory

Information Division, U.S.

Environmental Protection Agency (Mail

Code 2137), 401 M Street, SW.,

Washington, DC 20460; and to the

Office of Information and Regulatory

Affairs, Office of Management and

Budget, Washington, DC 20503, marked

‘‘Attention: Desk Officer for EPA.’’
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35355

Include the ICR number in any

correspondence.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Pub. L.

104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures to state, local,

and tribal governments, in the aggregate,

or to the private sector, of $100 million

or more for 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 of 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 rule contains no Federal

mandates (under the regulatory

provisions of Title II of the UMRA) for

State, local, or tribal governments. The

rule imposes no enforceable duties on

any of these governmental entities.

Nothing in the program would

significantly or uniquely affect small

governments. EPA has determined that

this rule contains Federal mandates that

will result in expenditures of $100

million or more in any one year for the

private sector. EPA believes that the

program represents the least costly,

most cost-effective approach to

achieving the air quality goals of the

proposed rule. EPA has performed the

required analyses under Executive

Order 12866 which contains identical

analytical requirements. The reader is

directed to Section IX.A.,

Administrative Designation and

Regulatory Analysis, for further

information regarding these analyses.

E. Submission to Congress and the

General Accounting Office

Under section 801(a)(1)(A) of the

Administrative Procedures Act (APA) as

amended by the Small Business

Regulatory Enforcement Fairness Act of

1996, EPA submitted 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 General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is a

‘‘major rule’’ as defined by section

804(2) of the APA as amended.

X. Electronic Copies of Rulemaking

Documents

The preamble, the RIA, and regulatory

language of this final rule are available

in the public docket as described under

‘‘ADDRESSES’’ above and are also

available electronically on the Office of

Air Quality Planning and Standards

(OAQPS) Technology Transfer network

Bulletin Board System (TTNBBS).

Instructions for accessing TTNBBS and

downloading the relevant files are

described below.

A. Technology Transfer Network

Bulletin Board System (TTNBBS)

TTNBBS can be accessed using a dialin telephone line (919–541–5742) and a

1200, 2400, or 9600 bps modem

(equipment up to 14.4 Kbps can be

accommodated). The parity of the

modem should be set to N or none, the

data bits to 8, and the stop bits to 1.

When first signing on to the bulletin

board, the user will be required to

answer some basic informational

questions to register into the system.

After registering, proceed through the

following options from a series of

menus:

(T) Gateway to TTN Technical Areas

(Bulletin Boards)

(M) OMS—Mobile Sources Information

(K) Rulemaking and Reporting

(3) Fuels

(4) Detergent Additives

At this point, the system will list all

available files in the chosen category in

reverse chronological order with brief

descriptions. The following eight ‘‘zip’’

files are currently available:

DCAlCFP.ZIP (Preamble to the final

rule on the Certification

Requirements for Deposit Control

Additives)

DCAlCFR.ZIP (Regulatory text for the

final rule on the Certification

Requirements for Deposit Control

Additives)

DCAlRIAA.ZIP (Addendum to the

Regulatory Impact Analysis)

DCAlRCN.ZIP (Notice to Reopen the

Comment Period)

DCAlRIA.ZIP (Regulatory Impact

Analysis)

DCAl1FP.ZIP (Preamble to the final

rule on the Interim Requirements

for Deposit Control Additives)

DCAlIFR.ZIP (Regulatory text for the

final rule on the Interim

Requirements for Deposit Control

Additives)

DCAlPRE.ZIP (Preamble from the

Notice of Proposed Rulemaking)

File information can be obtained from

the ‘‘READ.ME’’ file. Choose from the

following options when prompted:

<D>ownload, <P>rotocol, <E>xamine,

<N>ew, <L>ist, <H>elp or <ENTER> to

exit.

To download a file, e.g., <D>

filename.ZIP, the user needs to choose

a file transfer protocol appropriate for

the user’s computer from the options

listed on the terminal. The user’s

computer is then ready to receive the

file by invoking the user’s resident file

transfer software. Programs and

instructions for de-archiving

compressed files can be found under

<S>ystems Utilities from the top menu,

under <A>rchivers/de-archivers. Please

note that due to differences between the

software used to develop the document

and the software into which the

document may be downloaded, changes

in format, page length, etc. may occur.

TTNBBS is available 24 hours a day,

7 days a week except Monday morning

from 8–12 EST, when the system is

down for maintenance and backup. For

help in accessing the system, call the

systems operator at 919–541–5384 in

Research Triangle Park, North Carolina,

during normal business hours EST.

B. Internet

Rulemaking documents may be found

on the internet as follow:

World Wide Web

http://www.epa.gov/omswww

FTP

ftp://ftp.epa.gov Then CD to the /pub/

gopher/OMS/ directory

Gopher

gopher://gopher.epa.gov:70/11/

Offices/Air/OMS

Alternatively, go to the main EPA

gopher, and follow the menus:

gopher.epa.gov

EPA Offices and Regions
35356 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

Office of Air and Radiation

Office of Mobile Sources

List of Subjects in 40 CFR Part 80

Environmental protection, Fuel

additives, Gasoline detergent additives,

Gasoline, Incorporation by reference,

Motor vehicle pollution, Penalties,

Reporting and recordkeeping

requirements.

Dated: June 21, 1996.

Carol M. Browner,

Administrator.

For the reasons set forth in the

preamble, part 80 of title 40 of the Code

of Federal Regulations is amended as

follows:

PART 80—[AMENDED]

1. The authority citation for part 80

continues to read as follows:

Authority: Sec. 114, 211 and 301(a) of the

Clean Air Act as amended (42 U.S.C. 7414,

7545, and 7601(a)).

2. Section 80.4 is revised to read as

follows:

§ 80.4 Right of entry; tests and

inspections.

The Administrator or his authorized

representative, upon presentation of

appropriate credentials, shall have a

right to enter upon or through any

refinery, retail outlet, wholesale

purchaser-consumer facility, or

detergent manufacturer facility; or the

premises or property of any gasoline or

detergent distributor, carrier, or

importer; or any place where gasoline or

detergent is stored; and shall have the

right to make inspections, take samples,

obtain information and records, and

conduct tests to determine compliance

with the requirements of this part.

3–4. Section 80.140 is amended by

revising the definition of ‘‘Detergent

Blender’’ and by adding definitions for

‘‘Leaded Gasoline’’ and ‘‘Repeatability’’,

in alphabetical order, to read as follows:

§ 80.140 Definitions.

* * * * *

Detergent blender means any person

who owns, leases, operates, controls or

supervises the blending operation of a

detergent blending facility, or imports

detergent-additized gasoline or

detergent-additized post-refinery

component.

* * * * *

Leaded gasoline means gasoline

which is produced with the use of any

lead additive or which contains more

than 0.05 gram of lead per gallon or

more than 0.005 gram of phosphorus per

gallon.

* * * * *

Repeatability of a test method means

the amount of random error which is

expected to affect the results obtained

for a given test substance, when the test

is replicated by a single operator in a

given laboratory within a short period of

time, using the same apparatus under

constant operating conditions.

Quantitatively, it is the difference

between two such single results that

would be exceeded in the long run in

only one out of twenty normal and

correct replications of the test method.

* * * * *

5. Section 80.141 is amended as

follows:

a. Paragraphs (a) and (b), the second

sentence of paragraph (c)(1)(i),

paragraphs (c)(1)(ii), (c)(2), (c)(3)(i), (d),

and (e)(1), the first sentence of

paragraph (e)(2)(ii)(B), and the last

sentence of paragraph (g)(3) are revised.

b. Paragraph (c)(3)(iv) is added.

c. Paragraph (e)(2)(ii)(B)(1)(iii) is

removed and reserved.

d. In paragraph (g)(1), the reference to

paragraph (d)(2)(ii)(B) is revised to

(d)(3)(ii).

§ 80.141 Interim detergent gasoline

program.

(a) Effective dates of requirements. (1)

Until June 30, 1997, the products listed

in paragraphs (a)(1)(i) through (iii) of

this section must comply with either the

interim program requirements described

in this section or the certification

program requirements described in

§ 80.161. Beginning July 1, 1997, the

listed products must comply with the

requirements in § 80.161. These dates

and requirements apply to:

(i) All gasoline sold or transferred to

a party who sells or transfers gasoline to

the ultimate consumer;

(ii) All additized post-refinery

component (PRC); and

(iii) All detergent additives sold or

transferred for use in gasoline or PRC for

compliance with the requirements of

this subpart.

(2) Until July 31, 1997, all gasoline

sold or transferred to the ultimate

consumer must contain detergent

additive(s) meeting either the interim

requirements of this § 80.141 or the

certification program requirements of

§ 80.161. Beginning August 1, 1997,

such gasoline must contain detergent

additive(s) meeting the certification

requirements of § 80.161.

(b) Applicability of gasoline and PRC

detergency requirement; responsible

parties. (1) Except as specifically

exempted in § 80.160, the detergency

requirements of this subpart apply to all

gasoline, whether intended for onhighway or nonroad use, including

conventional, reformulated, oxygenated,

and leaded gasolines, as well as the

gasoline component of fuel mixtures of

gasoline and alcohol fuels, gasoline

used as marine fuel, gasoline service

accumulation fuel (as described in

§ 86.113–94(a)(1) of this chapter), the

gasoline component of fuel mixtures of

gasoline and methanol used for service

accumulation in flexible fuel vehicles

(as described in § 86.113–94(d) of this

chapter), gasoline used for factory fill

purposes, and all additized PRC.

(2) Pursuant to paragraphs (c) through

(f) of this section, compliance with these

requirements is the responsibility of

parties who directly or indirectly sell or

dispense gasoline to the ultimate

consumer as well as parties who

manufacture, supply, or transfer

detergent additives or detergentadditized post-refinery components.

(c) * * *

(1) * * *

(i) * * * Polymeric components may

be reported as the product of other

chemical reactants, provided that the

supporting data specified in § 80.162(b)

is also reported for such components.

(ii) The weight and/or volume percent

(as applicable) of each component of the

package, with variability in these

amounts restricted according to the

provisions of paragraph (c)(2) of this

section.

* * * * *

(2) Allowable variation in

compositional data. (i) A single

detergent additive registration may

contain no variation in the identity of

any of the detergent-active components

identified pursuant to paragraph

(c)(1)(iii) of this section.

(ii) A single detergent additive

registration may specify a range of

concentrations for identified detergentactive components, provided that, if

each such component were present in

the detergent additive package at the

lower bound of its reported range of

concentration, the minimum

recommended concentration reported in

accordance with the requirements of

paragraph (c)(3) of this section would

still provide the deposit control

effectiveness claimed by the detergent

registrant.

(iii) The identity or concentration of

non-detergent-active components of the

detergent additive package may vary

under a single registration, provided

that the range of such variation is

specified in the registration, and that

such variability does not reduce the

deposit control effectiveness of the

additive package as compared with the

level of effectiveness claimed by the

detergent registrant pursuant to the

requirements of paragraph (c)(3) of this

section.
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35357

(iv) Except as provided in paragraph

(c)(2)(v) of this section, detergent

additive packages which do not satisfy

these restrictions must be separately

registered. EPA may disqualify an

additive for use in satisfying the

requirements of this subpart if EPA

determines that the variability included

within a given detergent additive

registration may reduce the deposit

control effectiveness of the detergent

package such that it could invalidate the

minimum recommended concentration

reported in accordance with the

requirements of paragraph (c)(3) of this

section.

(v) A change in minimum

concentration requirements resulting

from a modification of detergent

additive composition shall not require a

new detergent additive registration or a

change in existing registration if:

(A) The modification is effected by a

detergent blender only for its own use

or for the use of parties which are

subsidiaries of, or share common

ownership with, the blender, and the

modified detergent is not sold or

transferred to other parties; and

(B) The modification is a dilution of

the additive for the purpose of ensuring

proper detergent flow in cold weather;

and

(C) Gasoline is the only diluting agent

used; and

(D) The diluted detergent is

subsequently added to gasoline at a rate

that attains the detergent’s registered

minimum recommended concentration,

taking into account the dilution; and

(E) EPA is notified, either before or

within seven days after the dilution

action, of the identity of the detergent,

the identity of the diluting material, the

amount or percentage of the dilution,

the change in treat rate necessitated by

the dilution, and the locations and time

period of diluted detergent usage. The

notification shall be sent or faxed to the

address in § 80.174(c).

(3) * * *

(i) The lower boundary of the

recommended range of concentration for

the detergent additive package in

gasoline, which the additive

manufacturer must report pursuant to

the registration requirements in

§ 79.21(d) of this chapter, must equal or

exceed the minimum concentration

which the manufacturer has determined

to be necessary for the control of

deposits in the associated fuel type,

pursuant to paragraph (e) of this section.

The minimum recommended

concentration shall be provided to EPA

in units of gallons of detergent additive

package per thousand gallons of

gasoline or PRC, reported to four digits.

This concentration is the lowest

additive concentration (LAC) referred to

elsewhere in this subpart.

* * * * *

(iv) Once included in the registration

for a detergent additive package, the

minimum concentration recommended

by the detergent manufacturer to

detergent blenders and other users of

the detergent additive, pursuant to

paragraph (c)(3)(ii) of this section, may

not be changed without first notifying

EPA. The notification must be sent by

certified mail to the address specified in

§ 80.174(b). Changes to the minimum

recommended concentration must be

supported by available test data

pursuant to paragraph (c)(3)(iii) of this

section.

(d) The rate at which a detergent

blender treats gasoline with a detergent

additive package must be no less than

the minimum recommended

concentration reported for the subject

detergent additive pursuant to

paragraph (c)(3) of this section, except

under the following conditions:

(1) If a detergent blender believes that

the minimum treat rate recommended

by the manufacturer of a detergent

additive exceeds the amount of

detergent actually required for effective

deposit control, and possesses

substantiating data consistent with the

guidelines in paragraph (e) of this

section, then, upon informing EPA in

writing of these circumstances, the

detergent blender may use the detergent

at a lower concentration.

(2) The notification to EPA must

clearly specify the name of the detergent

product and its manufacturer, the

concentration recommended by the

detergent manufacturer, and the lower

concentration which the detergent

blender intends to use. The notification

must also attest that data are available

to substantiate the deposit control

effectiveness of the detergent at the

intended lower concentration. The

notification must be sent by certified

mail to the address specified in

§ 80.174(b).

(3) At its discretion, EPA may require

that the detergent blender submit the

test data purported to substantiate the

claimed effectiveness of the lower

concentration of the detergent additive.

EPA may also require the manufacturer

of the subject detergent additive to

submit test data substantiating the

minimum recommended concentration

specified in the detergent additive

registration. In either case, EPA will

send a letter to the appropriate party,

and the supporting data will be due to

EPA within 30 days of receipt of EPA’s

letter.

(i) If the detergent blender fails to

submit the required supporting data to

EPA in the allotted time period, or if

EPA judges the submitted data to be

inadequate to support the detergent

blender’s claim that the lower

concentration provides a level of

deposit control consistent with the

requirements of this section, then EPA

will disapprove the use of the detergent

at the lower concentration. Further, the

detergent blender may be subject to

applicable liabilities and penalties

pursuant to §§ 80.156 and 80.159 for

any gasoline or PRC it has additized at

the lower concentration.

(ii) If the detergent manufacturer fails

to submit the required test data to EPA

within the allotted time period, EPA

will proceed on the assumption that

data are not available to substantiate the

minimum recommended concentration

specified in the detergent registration,

and the subject additive may be

disqualified for use in complying with

the requirements of this subpart,

pursuant to the procedures in paragraph

(g) of this section. The detergent

manufacturer may also be subject to

applicable liabilities and penalties

pursuant to §§ 80.156 and 80.159.

(iii) If both parties submit the required

information, EPA will evaluate the

quality and results of both sets of test

data in relation to each other and to

industry-consensus test practices and

standards, in a manner consistent with

the guidelines described in paragraph

(e) of this section. EPA will approve or

disapprove the use of the detergent at

the lower concentration, and will

inform both the detergent blender and

the detergent manufacturer of the results

of its analysis within 60 days of receipt

of both sets of data.

(e) * * *

(1) CARB-based supporting test data.

For detergent additives which are

certified by the California Air Resources

Board (CARB) for use in the state of

California (pursuant to Title 13, section

2257 of the California Code of

Regulations), the CARB certification

data constitutes adequate support of the

detergent’s effectiveness under this

section, with the exception that CARB

detergent certification data specific to

California Phase II reformulated

gasoline (pursuant to Title 13, Chapter

5, Article 1, Subarticle 2, California

Code of Regulations, Standards for

Gasoline Sold Beginning March 1, 1996)

will not be considered adequate support

for detergent effectiveness in gasolines

that do not conform to the

compositional specifications for

California’s Phase II reformulated

gasoline. For CARB-based supporting

data to be used to demonstrate detergent

performance, the minimum

recommended concentration reported in
35358 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

the detergent additive registration must

be no less than the concentration of the

detergent-active components reported in

the subject CARB detergent certification.

(2) * * *

(ii) * * *

(B) For demonstration of fuel injector

and intake valve deposit control

performance, the tests specified in

§§ 80.165, or other vehicle-based tests

using generally accepted industry

procedures and standards, are

preferred.* * *

* * * * *

(g) * * *

(3) * * * All correspondence

regarding a disqualification must be sent

to the address specified in § 80.174(b).

* * * * *

6. Section 80.155 is revised to read as

follows:

§ 80.155 Interim detergent program

controls and prohibitions.

(a)(1) No person shall sell, offer for

sale, dispense, supply, offer for supply,

transport, or cause the transportation of

gasoline to the ultimate consumer for

use in motor vehicles or in any off-road

engines (except as provided in § 80.160),

or to a gasoline retailer or wholesale

purchaser-consumer, and no person

shall detergent-additize gasoline, unless

such gasoline is additized in conformity

with the requirements of § 80.141. No

person shall cause the presence of any

gasoline in the gasoline distribution

system unless such gasoline is additized

in conformity with the requirements of

§ 80.141.

(2) Gasoline has been additized in

conformity with the requirements of

§ 80.141 when the detergent component

satisfies the requirements of § 80.141

and when:

(i) The gasoline has been additized in

conformity with the detergent

composition and purpose-in-use

specifications of an applicable detergent

registered under 40 CFR part 79, and in

accordance with at least the minimum

concentration specifications of that

detergent as registered under 40 CFR

part 79 or as otherwise provided under

§ 80.141(d); or

(ii) The gasoline is composed of two

or more commingled gasolines and each

component gasoline has been additized

in conformity with the detergent

composition and purpose-in-use

specifications of a detergent registered

under 40 CFR part 79, and in

accordance with at least the minimum

concentration specifications of that

detergent as registered under 40 CFR

part 79 or as otherwise provided under

§ 80.141(d); or

(iii) The gasoline is composed of a

gasoline commingled with a postrefinery component (PRC), and both of

these components have been additized

in conformity with the detergent

composition and use specifications of a

detergent registered under 40 CFR part

79, and in accordance with at least the

minimum concentration specifications

of that detergent as registered under 40

CFR part 79 or as otherwise provided

under § 80.141(d).

(b) No person shall blend detergent

into gasoline or PRC unless such person

complies with the volumetric additive

reconciliation requirements of § 80.157.

(c) No person shall sell, offer for sale,

dispense, supply, offer for supply, store,

transport, or cause the transportation of

any gasoline, detergent, or detergentadditized PRC unless the product

transfer document for the gasoline,

detergent or detergent-additized PRC

complies with the requirements of

§ 80.158.

(d) No person shall refine, import,

manufacture, sell, offer for sale,

dispense, supply, offer for supply, store,

transport, or cause the transportation of

any detergent that is to be used as a

component of detergent-additized

gasoline or detergent-additized PRC,

unless such detergent conforms with the

composition specifications of a

detergent registered under 40 CFR part

79 and the detergent otherwise complies

with the requirements of § 80.141. No

person shall cause the presence of any

detergent in the detergent, PRC, or

gasoline distribution systems unless

such detergent complies with the

requirements of § 80.141.

(e)(1) No person shall sell, offer for

sale, dispense, supply, offer for supply,

transport, or cause the transportation of

detergent-additized PRC, unless the PRC

has been additized in conformity with

the requirements of § 80.141. No person

shall cause the presence in the PRC or

gasoline distribution systems of any

detergent-additized PRC that fails to

conform to the requirements of § 80.141.

(2) PRC has been additized in

conformity with the requirements of

§ 80.141 when the detergent component

satisfies the requirements of § 80.141

and:

(i) The PRC has been additized in

accordance with the detergent

composition and use specifications of a

detergent registered under 40 CFR part

79, and in accordance with at least the

minimum concentration specifications

of that detergent as registered under 40

CFR part 79 or as otherwise provided

under § 80.141(d); or

(ii) The PRC is composed of two or

more commingled PRCs, and each

component has been additized in

accordance with the detergent

composition and use specifications of a

detergent registered under 49 CFR part

79, and in accordance with at least the

minimum concentration specifications

of that detergent as registered under 40

CFR part 79 or as otherwise provided

under § 80.141(d).

7. Section 80.156 is amended by

revising paragraphs (a)(1)(ii), (a)(2),

introductory text, (a)(2)(ii), (a)(3),

introductory text, (a)(3)(ii), (a)(4), (a)(5),

introductory text, (c)(1), introductory

text, (c)(1)(i), (c)(3), (c)(4), and by adding

paragraphs (c)(5) through (c)(8) to read

as follows:

§ 80.156 Liability for violations of the

interim detergent program controls and

prohibitions.

(a) * * *

(1) * * *

(ii) Each gasoline refiner, importer,

distributor, reseller, retailer, wholesale

purchaser-consumer, oxygenate blender,

detergent manufacturer, distributor, or

blender, who refined, imported,

manufactured, sold, offered for sale,

dispensed, supplied, offered for supply,

stored, detergent additized, transported,

or caused the transportation of the

detergent-additized gasoline (or the base

gasoline component, the detergent

component, or the detergent-additized

post-refinery component of the gasoline)

that is in violation, and each such party

that caused the gasoline that is in

violation to be present in the gasoline

distribution system; and

* * * * *

(2) Post-refinery component nonconformity. Where detergent-additized

PRC contained in any storage tank at

any facility owned, leased, operated,

controlled or supervised by any gasoline

refiner, importer, carrier, distributor,

reseller, retailer, wholesale purchaserconsumer, oxygenate blender, detergent

manufacturer, carrier, distributor, or

blender, is found in violation of the

prohibitions specified in § 80.155(e), the

following persons shall be deemed in

violation:

(i) * * *

(ii) Each gasoline refiner, importer,

distributor, reseller, retailer, wholesalepurchaser consumer, oxygenate blender,

detergent manufacturer, distributor, or

blender, who sold, offered for sale,

dispensed, supplied, offered for supply,

stored, detergent additized, transported,

or caused the transportation of the

detergent-additized PRC (or the

detergent component of the PRC) that is

in violation, and each such party that

caused the PRC that is in violation to be

present in the PRC or gasoline

distribution systems; and

* * * * *

(3) Detergent non-conformity. Where

the detergent (prior to additization)
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35359

contained in any storage tank or

container found at any facility owned,

leased, operated, controlled or

supervised by any gasoline refiner,

importer, carrier, distributor, reseller,

retailer, wholesale purchaser-consumer,

oxygenate blender, detergent

manufacturer, carrier, distributor, or

blender, is found in violation of the

prohibitions specified in § 80.155(d), the

following persons shall be deemed in

violation:

(i) * * *

(ii) Each gasoline refiner, importer,

distributor, reseller, retailer, wholesale

purchaser-consumer, oxygenate blender,

detergent manufacturer, distributor, or

blender, who sold, offered for sale,

dispensed, supplied, offered for supply,

stored, transported, or caused the

transportation of the detergent that is in

violation, and each such party that

caused the detergent that is in violation

to be present in the detergent, gasoline,

or PRC distribution systems; and

* * * * *

(4) Volumetric additive reconciliation.

Where a violation of the volumetric

additive reconciliation requirements

established by § 80.155(b) has occurred,

the following persons shall be deemed

in violation:

(i) Each detergent blender who owns,

leases, operates, controls or supervises

the facility (including, but not limited

to, a truck or individual storage tank)

where the violation has occurred; and

(ii) Each gasoline refiner, importer,

carrier, distributor, reseller, retailer,

wholesale purchaser-consumer, or

oxygenate blender, and each detergent

manufacturer, carrier, distributor, or

blender, who refined, imported,

manufactured, sold, offered for sale,

dispensed, supplied, offered for supply,

stored, transported, or caused the

transportation of the detergent-additized

gasoline, the base gasoline component,

the detergent component, or the

detergent-additized post-refinery

component, of the gasoline that is in

violation, provided that the EPA

demonstrates, by reasonably specific

showings by direct or circumstantial

evidence, that such person caused the

violation.

(5) Product transfer document. Where

a violation of § 80.155(c) is found at a

facility owned, leased, operated,

controlled, or supervised by any

gasoline refiner, importer, carrier,

distributor, reseller, retailer, wholesale

purchaser-consumer, oxygenate blender,

detergent manufacturer, carrier,

distributor, or blender, the following

persons shall be deemed in violation:

* * * * *

(c) Defenses. (1) In any case in which

a gasoline refiner, importer, distributor,

carrier, reseller, retailer, wholesalepurchaser consumer, oxygenate blender,

detergent distributor, carrier, or blender,

is in violation of any of the prohibitions

of § 80.155, pursuant to paragraphs (a)

or (b) of this section as applicable, the

regulated party shall be deemed not in

violation if it can demonstrate:

(i) That the violation was not caused

by the regulated party or its employee

or agent (unless otherwise provided in

this paragraph (c));

* * * * *

(3) Detergent blender. In any case in

which a detergent blender is liable for

violating any of the prohibitions of

§ 80.155, the detergent blender shall not

be deemed in violation if it can

demonstrate, in addition to the defense

requirements stated in paragraph (c)(1)

of this section, the following:

(i) That it obtained or supplied, as

appropriate, prior to the detergent

blending, accurate written instructions

from the detergent manufacturer or

other party with knowledge of such

instructions, specifying the detergent’s

minimum recommended concentration

(lowest additive concentration)

pursuant to § 80.141(c)(3) and, if

applicable, the limitations of this

concentration for use in leaded product.

(ii) That it has implemented a quality

assurance program that includes, but is

not limited to, a periodic review of its

supporting product transfer and volume

measurement documents to confirm the

correctness of its product transfer and

volumetric additive reconciliation

documents created for all products it

additized.

(4) Detergent manufacturer—(i)

Presumptive liability affirmative

defense. Notwithstanding the provisions

of paragraph (c)(1) of this section, in any

case in which a detergent manufacturer

is liable for violating any of the

prohibitions of § 80.155, the detergent

manufacturer shall be deemed not in

violation if it can demonstrate each of

the following:

(A) Product transfer documents which

account for the detergent component of

the product in violation and which

indicate that such detergent satisfied all

relevant requirements when it left the

detergent manufacturer’s control; and

(B) Written blending instructions

which, pursuant to § 80.141(c)(3)(ii),

were supplied by the detergent

manufacturer to its customer who

purchased or obtained from the

manufacturer the detergent component

of the product determined to be in

violation. The written blending

instructions must have been supplied by

the manufacturer prior to the customer’s

use or sale of the detergent. The

instructions must accurately identify the

minimum recommended concentration

(lowest additive concentration)

specified in the detergent’s 40 CFR part

79 registration, and must also accurately

identify if the detergent, at that

concentration, is only registered as

effective for use in leaded gasoline.

(C) If the detergent batch used in the

noncomplying product was produced

less than one year before the

manufacturer was notified by EPA of the

possible violation, then the

manufacturer must provide FTIR or

other test results for the batch of

detergent used in the noncomplying

product, performed in accordance with

the detergent testing procedure

submitted by the manufacturer, or

available for submission, pursuant to

§ 80.141(f).

(1) The analysis may have been

conducted on the subject detergent

batch at the time it was manufactured,

or may be conducted on a sample of that

batch which the manufacturer retained

for such purpose at the time the batch

was manufactured.

(2) The test results must accurately

establish that, when it left the

manufacturer’s control, the detergent

component of the product determined to

be in violation was in conformity with

the chemical composition and

concentration specifications reported

pursuant to § 80.141(c)(1);

(D) If the detergent batch used in the

noncomplying product was produced

more than one year prior to the

manufacturer’s notification by EPA of

the possible violation, then the

manufacturer must provide either:

(1) Test results for the batch in

question as specified in the paragraph

(c)(4)(i)(C) of this section; or

(2) The following materials:

(i) Documentation of the measured

viscosity, density, and basic nitrogen

content of the detergent batch in

question, or any other such physical

parameters which the manufacturer

normally uses to ensure production

quality control, which establishes

conformity with the manufacturer’s

quality control standards for such

parameters; and

(ii) If the detergent registration

identifies polymeric component(s) of

the detergent package as the product(s)

of other chemical reactants,

documentation that the reagents used to

synthesize the detergent batch in

question were the same as those

specified in the registration and that

they met the manufacturer’s normal

acceptance criteria for such reagents,

reported pursuant to § 80.162(b)(1).
35360 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

(ii) Detergent manufacturer causation

liability. In any case in which a

detergent manufacturer is liable for a

violation of § 80.155, and the

manufacturer establishes an affirmative

defense to such liability pursuant to

paragraph (c)(4)(i) of this section, the

detergent manufacturer will nonetheless

be deemed liable for the violation of

§ 80.155 if EPA can demonstrate, by

reasonably specific showings by direct

or circumstantial evidence, that the

detergent manufacturer caused the

violation.

(5) Defense against liability where

more than one party may be liable for

VAR violations. In any case in which a

party is presumptively or vicariously

liable for a violation of § 80.155 due to

a failure to meet the VAR requirements

§ 80.157, except for the VAR record

requirements pursuant to § 80.157(g),

such party shall not be deemed liable if

it can establish the following:

(i) Prior to the violation it had entered

into a written contract with another

potentially liable detergent blender

party (‘‘the assuming party’’), under

which that other party assumed legal

responsibility for fulfilling the VAR

requirement that had been violated;

(ii) The contract included reasonable

oversight provisions to ensure that the

assuming party fulfilled its VAR

responsibilities (including, but not

limited to, periodic review of VAR

records) and the oversight provision was

actually implemented by the party

raising the defense;

(iii) The assuming party is fiscally

sound and able to pay its penalty for the

VAR violation; and

(iv) The employees or agents of the

party raising the defense did not cause

the violation.

(6) Defense to liability for gasoline

non-conformity violations caused solely

by the addition of misadditized ethanol

or other PRC to the gasoline. In any case

in which a party is presumptively or

vicariously liable for a gasoline nonconformity violation of § 80.155(a)

caused solely by another party’s

addition of misadditized ethanol or

other PRC to the gasoline, the former

party shall not be deemed liable for the

violation provided that it can establish

that is has fulfilled the requirements of

paragraphs (c)(1)(i) and (ii) of this

section.

(7) Detergent tank transitioning

defenses. The commingling of two

detergents in the same detergent storage

tank will not be deemed to violate or

cause violations of any of the provisions

of this subpart, provided the following

conditions are met:

(i) The commingling must occur

during a legitimate detergent

transitioning event, i.e., a shift from the

use of one detergent to another through

the delivery of the new detergent into

the same tank that contains the original

detergent; and

(ii) If the new detergent is restricted

to use in leaded gasoline, then such

restriction must be applied to the

combined detergents; and

(iii) The commingling event must be

documented, either on the VAR formula

record or on attached supporting

records; and

(iv) Notwithstanding any contrary

provisions in § 80.157, a VAR formula

record must be created for the combined

detergents. The VAR compliance period

must begin no later than the time of the

commingling event. However, at the

blender’s option, the compliance period

may begin earlier, thus including use of

the uncombined original detergent

within the same period, provided that

the 31-day limitation pursuant to

§ 80.157(a)(6) is not exceeded; and

(v) The VAR formula record must also

satisfy the requirements in one of the

following paragraphs (c)(7)(v)(A)

through (C) of this section, whichever

applies to the commingling event. If

neither paragraph (c)(7)(v)(A) nor (B) of

this section initially applies, then the

blender may drain and subsequently

redeliver the original detergent into the

tank in restricted amounts, in order to

meet the conditions of paragraph

(c)(7)(v)(A) or (B) of this section.

Otherwise, the blender must comply

with paragraph (c)(7)(v)(C) of this

section.

(A) If both detergents have the same

LAC, and the original detergent

accounts for no more than 20 percent of

the tank’s total delivered volume after

addition of the new detergent, then the

VAR formula record is required to

identify only the use of the new

detergent.

(B) If the two detergents have different

LACs and the original detergent

accounts for 10 percent or less of the

tank’s total delivered volume after

addition of the new detergent, then the

VAR formula record is required to

identify only the use of the new

detergent, and must attain the LAC of

the new detergent. If the original

detergent’s LAC is greater than that of

the new detergent, then the compliance

period may begin earlier than the date

of the commingling event (pursuant to

paragraph (c)(7)(iv) of this section) only

if the original detergent does not exceed

10 percent of the total detergent used

during the compliance period.

(C) If neither of the preceding

paragraphs (c)(7)(v)(A) or (B) of this

section applies, then the VAR formula

record must identify both of the

commingled detergents, and must use

and attain the higher LAC of the two

detergents. Once the commingled

detergent has been depleted by an

amount equal to the volume of the

original detergent in the tank at the time

the new detergent was added,

subsequent VAR formula records must

identify and use the LAC of only the

new detergent.

(8) Defense to liability for

noncompliance with leaded-only use

restrictions. A party shall not be deemed

liable for violations of § 80.155(a) or (e)

caused solely by the additization or use

of gasoline or PRC in violation of

leaded-only use restrictions, provided

that the conditions specified in

§ 80.169(c)(9) are met.

8. Section 80.157 is amended by

revising the introductory text and

paragraphs (a) and (b), by revising

paragraphs (d), (e), and (f) and

redesignating them as paragraphs (e), (f),

and (g), and by adding a new paragraph

(d), to read as follows:

§ 80.157 Volumetric additive reconciliation

(VAR), equipment calibration, and

recordkeeping requirements under the

interim detergent program.

This section contains requirements for

automated detergent blending facilities

and hand-blending detergent facilities.

All gasolines and all PRC intended for

use in gasoline must be additized,

unless otherwise noted in supporting

VAR records, and must be accounted for

in VAR records. The VAR reconciliation

standard is attained under this section

when the actual concentration of

detergent used per VAR formula record

equals or exceeds the lowest additive

concentration (LAC) specified for that

detergent pursuant to § 80.141(c)(3), or,

if appropriate, under § 80.141(d). A

separate VAR formula record must be

created for leaded gasoline additized

with a detergent registered for use only

with leaded gasoline, or used at a

concentration that is registered as

effective for leaded gasoline only.

Detergent so used must be accurately

and separately measured, either through

the use of a separate storage tank, a

separate meter, or some other

measurement system that is able to

accurately distinguish its use. Recorded

volumes of gasoline, detergent, and PRC

must be expressed to the nearest gallon

(or smaller units), except that detergent

volumes of five gallons or less must be

expressed to the nearest tenth of a

gallon (or smaller units). However, if the

blender’s equipment cannot accurately

measure to the nearest tenth of a gallon,

then such volumes must be rounded

downward to the next lower gallon. PRC

included in the reconciliation must be
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35361

identified. Each VAR formula record

must also contain the following

information:

(a) Automated blending facilities. In

the case of an automated detergent

blending facility, for each VAR period,

for each detergent storage system and

each detergent in that storage system,

the following must be recorded:

(1) The manufacturer and commercial

identifying name of the detergent

additive package being reconciled, and

the LAC specified in the detergent

registration for use with the applicable

type of gasoline (i.e., unleaded or

leaded). The LAC must be expressed in

terms of gallons of detergent per

thousand gallons of gasoline or PRC,

and expressed to four digits. If the

specified LAC is only effective for use

with leaded gasoline, the record must so

indicate. If the detergent storage system

which is the subject of the VAR formula

record is a proprietary system under the

control of a customer, this fact must be

indicated on the record.

(2) The total volume of detergent

blended into gasoline and PRC, in

accordance with one of the following

paragraphs, as applicable.

(i) For a facility which uses in-line

meters to measure detergent usage, the

total volume of detergent measured,

together with supporting data which

includes one of the following: the

beginning and ending meter readings for

each meter being measured, the metered

batch volume measurements for each

meter being measured, or other

comparable metered measurements. The

supporting data may be supplied on the

VAR formula record or in the form of

computer printouts or other comparable

VAR supporting documentation.

(ii) For a facility which uses a gauge

to measure the inventory of the

detergent storage tank, the total volume

of detergent shall be calculated from the

following equation:

Detergent Volume=(A)¥(B)+(C)¥(D)

Where:

A=Initial detergent inventory of the tank

B=Final detergent inventory of the tank

C=Sum of any additions to detergent

inventory

D=Sum of any withdrawals from

detergent inventory for purposes

other than the additization of

gasoline or PRC.

The value of each variable in this

equation must be separately recorded on

the VAR formula record. In addition, a

list of each detergent addition included

in variable C and a list of each detergent

withdrawal included in variable D must

be provided, either on the formula

record or as VAR supporting

documentation.

(3) The total volume of gasoline plus

PRC to which detergent has been added,

together with supporting data which

includes one of the following: The

beginning and ending meter

measurements for each meter being

measured, the metered batch volume

measurements for each meter being

measured, or other comparable metered

measurements. The supporting data may

be supplied on the VAR formula record

or in the form of computer printouts or

other comparable VAR supporting

documentation. If gasoline has

intentionally been overadditized in

anticipation of the later addition of

unadditized PRC, then the total volume

of gasoline plus PRC recorded must

include the expected amount of

unadditized PRC to be added later. In

addition, the amount of gasoline which

was overadditized for this purpose must

be specified.

(4) The actual detergent

concentration, calculated as the total

volume of detergent added (pursuant to

paragraph (a)(2) of this section), divided

by the total volume of gasoline plus PRC

(pursuant to paragraph (a)(3) of this

section). The concentration must be

calculated and recorded to four digits.

(5) A list of each detergent

concentration rate initially set for the

detergent that is the subject of the VAR

record, together with the date and

description of each adjustment to any

initially set concentration. The

concentration adjustment information

may be supplied on the VAR formula

record or in the form of computer

printouts or other comparable VAR

supporting documentation. No

concentration setting is permitted below

the applicable LAC, except as may be

modified pursuant to § 80.141(d) or as

described in paragraph (a)(7) of this

section.

(6) The dates of the VAR period,

which shall be no longer than thirty-one

days. If the VAR period is

contemporaneous with a calendar

month, then specifying the month will

fulfill this requirement; if not, then the

beginning and ending dates and times of

the VAR period must be listed. The

times may be supplied on the VAR

formula record or in supporting

documentation. Any adjustment to any

detergent concentration rate more than

10 percent over the concentration rate

initially set in the VAR period shall

terminate that VAR period and initiate

a new VAR period, except as provided

in paragraph (a)(7) of this section.

(7) The concentration setting for a

detergent injector may be set below the

applicable LAC, or it may be adjusted

more than 10 percent above the

concentration initially set in the VAR

period without terminating that VAR

period, provided that:

(i) The purpose of the change is to

correct a batch misadditization prior to

the end of the VAR period and prior to

the transfer of the batch to another

party, or to correct an equipment

malfunction; and

(ii) The concentration is immediately

returned after the correction to a

concentration that fulfills the

requirements of paragraphs (a)(5) and

(6) of this section; and

(iii) The blender creates and

maintains documentation establishing

the date and adjustments of the

correction; and

(iv) If the correction is initiated only

to rectify an equipment malfunction,

and the amount of detergent used in this

procedure is not added to gasoline in

the compliance period, then this

amount is subtracted from the detergent

volume listed on the VAR formula

record.

(8) If unadditized gasoline has been

transferred from the facility, other than

bulk transfers from refineries or

pipelines to non-retail outlets or nonWPC facilities, the total amount of such

gasoline must be specified.

(b) Non-automated facilities. In the

case of a facility in which hand

blending or any other non-automated

method is used to blend detergent, for

each detergent and for each batch of

gasoline and each batch of PRC to which

the detergent is being added, the

following shall be recorded:

(1) The manufacturer and commercial

identifying name of the detergent

additive package being reconciled, and

the LAC specified in the detergent

registration for use with the applicable

type of gasoline (i.e., unleaded or

leaded). The LAC must be expressed in

terms of gallons of detergent per

thousand gallons of gasoline or PRC,

and expressed to four digits. If the

specified LAC is only effective for use

with leaded gasoline, the record must so

indicate.

(2) The date of the additization that is

the subject of the VAR formula record.

(3) The volume of added detergent.

(4) The volume of the gasoline and/or

PRC to which the detergent has been

added. If gasoline has intentionally been

overadditized in anticipation of the later

addition of unadditized PRC, then the

total volume of gasoline plus PRC

recorded must include the expected

amount of unadditized PRC to be added

later. In addition, the amount of

gasoline which was overadditized for

this purpose must be specified.

(5) The brand (if known), grade, and

leaded/unleaded status of gasoline, and/

or the type of PRC.
35362 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

(6) The actual detergent

concentration, calculated as the volume

of added detergent (pursuant to

paragraph (b)(3) of this section), divided

by the volume of gasoline and/or PRC

(pursuant to paragraph (b)(4) of this

section). The concentration must be

calculated and recorded to four digits.

* * * * *

(d) Electronically-generated VAR

formula and supporting records. (1)

Electronically-generated records are

acceptable for VAR formula records and

supporting documentation (including

PTDs), provided that they are complete,

accessible, and easily readable. VAR

formula records must also be stored

with access and audit security, which

must restrict to a limited number of

specified people those who have the

ability to alter or delete the records. In

addition, parties maintaining records

electronically must make available for

EPA use the hardware and software

necessary to review the records.

(2) Electronically-generated VAR

formula records may use an electronic

user identification code to satisfy the

signature requirements of paragraph

(c)(1) of this section, provided that:

(i) The use of the ID is limited to the

record creator; and

(ii) A paper record is maintained,

which is signed and dated by the VAR

formula record creator, acknowledging

that the use of that particular user ID on

a VAR formula record is equivalent to

his/her signature on the document.

(e) Automated detergent blenders

must calibrate their detergent

equipment once in each calendar half

year, with the acceptable calibrations

being no less than one hundred twenty

days apart. Equipment recalibration is

also required each time the detergent

package is changed, unless written

documentation indicates that the new

detergent package has the same

viscosity as the previous detergent

package. Detergent package change

calibrations may be used to satisfy the

semiannual requirement provided that

the calibrations occur in the appropriate

half calendar year and are no less than

one hundred twenty days apart.

(f) The following VAR supporting

documentation must also be created and

maintained:

(1) For all automated detergent

blending facilities, documentation

reflecting performance of the

calibrations required by paragraph (e) of

this section, and any associated

adjustments of the automated detergent

equipment;

(2) For all hand-blending facilities

which are terminals, a record

specifying, for each calendar month, the

total volume in gallons of transfers from

the facility of unadditized base gasoline;

(3) For all detergent blending

facilities, product transfer documents

for all gasoline, detergent and detergentadditized PRC transferred into or out of

the facility; in addition, bills of lading,

transfer, or sale for all unadditized PRC

transferred into the facility;

(4) For all automated detergent

blending facilities, documentation

establishing the brands (if known) and

grades of the gasoline which is the

subject of the VAR formula record;

(5) For all hand blending detergent

blenders, the documentation, if in the

party’s possession, supporting the

volumes of gasoline, PRC, and detergent

reported on the VAR formula record;

and

(6) For all detergent blending

facilities, documentation establishing

the curing of a batch or amount of

misadditized gasoline or PRC, or the

curing of a use restriction on the

additized gasoline or PRC, and

providing at least the following

information: the date of the curing

procedure; the problem that was

corrected; the amount, name, and LAC

of the original detergent used; the

amount, name, and LAC of the added

curing detergent; and the actual

detergent concentration attained in, and

the volume of, the total cured product.

(g) Document retention and

availability. All detergent blenders shall

retain the documents required under

this section for a period of five years

from the date the VAR formula records

and supporting documentation were

created, and shall deliver them upon

request to the EPA Administrator or the

Administrator’s authorized

representative.

(1) Except as provided in paragraph

(g)(3) of this section, automated

detergent blender facilities and handblender facilities which are terminals,

which physically blend detergent into

gasoline, must make immediately

available to EPA, upon request, the

preceding twelve months of VAR

formula records plus the preceding two

months of VAR supporting

documentation.

(2) Except as provided in paragraph

(g)(3) of this section, other handblending detergent facilities which

physically blend detergent into gasoline

must make immediately available to

EPA, upon request, the preceding two

months of VAR formula records and

VAR supporting documentation.

(3) Facilities which have centrally

maintained records at other locations, or

have customers who maintain their own

records at other locations for their

proprietary detergent systems, and

which can document this fact to the

Agency, may have until the start of the

next business day after the request to

supply VAR supporting documentation,

or longer if approved by the Agency.

(4) In this paragraph (g) of this

section, the term immediately available

means that the records must be

provided, electronically or otherwise,

within approximately one hour of EPA’s

request, or within a longer time frame as

approved by EPA.

9. Section 80.158 is revised to read as

follows:

§ 80.158 Product transfer documents

(PTDs).

(a) Contents. For each occasion when

any gasoline refiner, importer, reseller,

distributor, carrier, retailer, wholesale

purchaser-consumer, oxygenate blender,

detergent manufacturer, distributor,

carrier, or blender, transfers custody or

title to any gasoline, detergent, or

detergent-additized PRC other than

when detergent-additized gasoline is

sold or dispensed at a retail outlet or

wholesale purchaser-consumer facility

to the ultimate consumer, the transferor

shall provide to the transferee, and the

transferee shall acquire from the

transferor, documents which accurately

include the following information:

(1) The names and addresses of the

transferee and transferor; the address

requirement may be fulfilled, in the

alternative, through separate

documentation which establishes said

addresses and is maintained by the

parties and made available to EPA for

the same length of time as required for

the PTDs, provided that the normal

business procedure of these parties is

not to identify addresses on PTDs.

(2) The date of the transfer.

(3) The volume of product transferred.

(4)(i) The identity of the product

being transferred (i.e., its identity as

base gasoline, detergent, detergentadditized gasoline, or specified

detergent-additized oxygenate or

detergent-additized gasoline blending

stock that comprises a detergentadditized PRC). PTDs for detergentadditized gasoline or PRC are not

required to identify the particular

detergent used to additize the product.

(ii) If the product being transferred

consists of two or more different types

of product subject to this regulation, i.e.,

base gasoline, detergent-additized

gasoline, or specified detergentadditized PRC, then the PTD for the

commingled product must identify each

such type of component contained in

the commingled product.

(5) If the product being transferred is

gasoline to which an oxygenate or a PRC

has been added, then the PTD for the
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35363

gasoline must identify the oxygenate or

PRC. The PTDs for commingled,

additized gasolines must identify all the

oxygenates and PRCs added to either

component.

(6) If the product being transferred is

base gasoline, then in addition to the

base gasoline identification, the

following warning must be stated on the

PTD: ‘‘Not for sale to the ultimate

consumer’’. If, pursuant to § 80.160(a),

the product being transferred is exempt

base gasoline to be used for research,

development, or test purposes only, the

following warning must also be stated

on the PTD: ‘‘For use in research,

development, and test programs only.’’

(7) The name of the detergent additive

as reported in its registration must be

used to identify the detergent package

on its PTD.

(8) If the product being transferred is

leaded gasoline, then the PTD must

disclose that the product contains lead

and/or phosphorous, as applicable.

(9) If the product being transferred is

detergent that is only authorized for the

control of carburetor deposits, then the

following must be stated on the

detergent’s transfer document: ‘‘For use

with leaded gasoline only.’’

(10) If the product being transferred is

detergent-additized gasoline that has

been overadditized in anticipation of

the later (or earlier) addition of PRC,

then the PTD must include a statement

that the product has been overadditized

to account for a specified volume in

gallons, or a specified percentage of the

product’s total volume, of additional,

specified PRC.

(b) Gasoline may not be additized

with a detergent authorized only for the

control of carburetor deposits and

whose product transfer document states

‘‘For use with leaded gasoline only’’,

and gasoline may not be additized at the

lower concentration specified for a

detergent authorized at a lower

concentration for the control of

carburetor deposits only, unless the

product transfer document for the

gasoline to be additized identifies it as

leaded gasoline.

(c) Use of product codes and other

non-regulatory language. (1) Product

codes and other non-regulatory language

may not be used as a substitute for the

specified PTD warning language

specified in paragraph (a)(6) of this

section for base gasoline, except that:

(i) The specified warning language

may be omitted for bulk transfers of base

gasoline from a refinery to a pipeline if

there is a prior written agreement

between the parties specifying that all

such gasoline is unadditized and will

not be transferred to the ultimate

consumer;

(ii) Product codes may be used as a

substitute for the specified warning

language provided that the PTD is an

electronic data interchange (EDI)

document being used solely for the

transfer of title to the base gasoline, and

provided that the product codes

otherwise comply with the requirements

of this section.

(2) Product codes and other language

not specified in this section may

otherwise be used to comply with PTD

information requirements, provided that

they are clear, accurate, and not

misleading.

(3) If product codes are used, they

must be standardized throughout the

distribution system in which they are

used, and downstream parties must be

informed of their full meaning.

(d) PTD exemption for small transfers

of additized gasoline. Transfers of

additized gasoline are exempt from the

PTD requirements of this section

provided all the following conditions

are followed:

(1) The product is being transferred by

a distributor who is not the product’s

detergent blender; and

(2) The recipient is a wholesale

purchaser-consumer (WPC) or other

ultimate consumer of gasoline, for its

own use only or for that of its agents or

employees; and

(3) The volume of additized gasoline

being transferred is not greater than 550

gallons.

(e) Recordkeeping period. Any person

creating, providing or acquiring product

transfer documentation for gasoline,

detergent, or detergent-additized PRC,

except as provided in paragraph (d) of

this section, shall retain the documents

required by this section for a period of

five years from the date the product

transfer documentation was created,

received or transferred, as applicable,

and shall deliver such documents to

EPA upon request. WPCs are not

required to retain PTDs of additized

gasoline received by them.

10. Section 80.160 is revised to read

as follows:

§ 80.160 Exemptions.

(a) Research, development, and

testing exemptions. Any detergent that

is either in a research, development, or

test status, or is sold to petroleum,

automobile, engine, or component

manufacturers for research,

development, or test purposes, or any

gasoline to be used by, or under the

control of, petroleum, additive,

automobile, engine, or component

manufacturers for research,

development, or test purposes, is

exempted from the provisions of the

interim detergent program, provided

that:

(1) The detergent (or fuel containing

the detergent), or the gasoline, is kept

segregated from non-exempt product,

and the party possessing the product

maintains documentation identifying

the product as research, development,

or testing detergent or fuel, as

applicable, and stating that it is to be

used only for research, development, or

testing purposes; and

(2) The detergent (or fuel containing

the detergent), or the gasoline, is not

sold, dispensed, or transferred, or

offered for sale, dispensing, or transfer

from a retail outlet. It shall also not be

sold, dispensed, or transferred, or

offered for sale, dispensing, or transfer

from a wholesale purchaser-consumer

facility, unless such facility is

associated with detergent, fuel,

automotive, or engine research,

development or testing; and

(3) The party using the product for

research, development, or testing

purposes, or the party sponsoring this

usage, notifies the EPA, on at least an

annual basis and prior to the use of the

product, of the purpose(s) of the

program(s) in which the product will be

used and the anticipated volume of the

product to be used. The information

must be submitted to the address or fax

number provided in § 80.174(c).

(b) Racing fuel and aviation fuel

exemptions. Any fuel that is refined,

sold, dispensed, transferred, or offered

for sale, dispensing, or transfer as

automotive racing fuel or as aircraft

engine fuel, is exempted from the

provisions of this subpart, provided

that:

(1) The fuel is kept segregated from

non-exempt fuel, and the party

possessing the fuel for the purposes of

refining, selling, dispensing,

transferring, or offering for sale,

dispensing, or transfer as automotive

racing fuel or as aircraft engine fuel,

maintains documentation identifying

the product as racing fuel, restricted for

non-highway use in racing motor

vehicles, or as aviation fuel, restricted

for use in aircraft, as applicable;

(2) Each pump stand at a regulated

party’s facility, from which such fuel is

dispensed, is labeled with the

applicable fuel identification and use

restrictions described in paragraph

(b)(1) of this section; and

(3) The fuel is not sold, dispensed,

transferred, or offered for sale,

dispensing, or transfer for highway use

in a motor vehicle.

(c) California gasoline exemptions. (1)

Gasoline or PRC which is additized in

the state of California is exempt from
35364 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

the VAR provisions in §§ 80.155(b) and

(e) and 80.157, provided that:

(i) For all such gasoline or PRC,

whether intended for sale within or

outside of California, records of the type

required for California gasoline

(specified in title 13, California Code of

Regulations, section 2257) are

maintained; and

(ii) Such records, with the exception

of daily additization records, are

maintained for a period of five years

from the date they were created and are

delivered to EPA upon request.

(2) Gasoline or PRC that is transferred

and/or sold solely within the state of

California is exempt from the PTD

provisions of the interim detergent

program, specified in §§ 80.155(c) and

80.158.

(3) Nothing in this paragraph (c)

exempts such gasoline or PRC from the

requirements of § 80.155(a) and (e), as

applicable. EPA will base its

determination of California gasoline’s

conformity with the detergent’s LAC on

the additization records required by

CARB, or records of the same type.

11. Subpart G is further amended by

adding new §§ 80.161 through 80.173, to

read as follows:

§ 80.161 Detergent additive certification

program.

(a) Effective dates and applicability of

requirements. (1) As of July 1, 1997:

(i) Detergent additives for the control

of port fuel injector deposits (PFID) and/

or intake valve deposits (IVD) in

gasoline engines may not be transferred

or sold for use in compliance with this

subpart unless such additives have been

certified according to the requirements

of this section.

(ii) Except as provided in

§ 80.169(c)(8), PFID and IVD control

additives may not be added to gasoline

or post-refinery component (PRC) for

compliance with this subpart unless

such additives have been certified

according to the requirements of this

section.

(iii) Gasoline may not be sold or

transferred to a party who sells or

transfers gasoline to the ultimate

consumer unless such gasoline contains

detergent additives which have been

certified according to the requirements

of this section.

(2) Beginning August 1, 1997, all

gasoline sold or transferred to the

ultimate consumer must contain

detergent additive(s) which have been

certified, according to the requirements

of this section, to be effective for the

control of PFID and IVD in gasoline

engines.

(3) Except as specifically exempted in

§ 80.173, these detergency requirements

apply to all gasoline, whether intended

for on-highway or nonroad use,

including conventional, oxygenated,

reformulated, and leaded gasolines, as

well as the gasoline component in

mixtures of petroleum and alcohol fuels,

gasoline used as marine fuel, gasoline

service accumulation fuel (as described

in § 86.113–94(a)(1) of this chapter), the

gasoline component of fuel mixtures of

petroleum and methanol used for

service accumulation in flexible fuel

vehicles (as described in § 86.113–94(d)

of this chapter), the gasoline used for

factory fill purposes, and all additized

PRC.

(4) The specific controls and

prohibitions applicable to persons

subject to these regulations are set forth

in § 80.168.

(b) Detergent additive certification

requirements. For a detergent additive

package to be certified as eligible for use

by detergent blenders in complying with

the gasoline detergency requirements of

this subpart, the requirements listed in

this paragraph (b) must be satisfied for

such detergent. Subject to the provisions

of paragraph (e) of this section, if the

certifier fails to conduct the specified

tests or to submit the specified

materials, or if EPA judges the testing or

materials to be inadequate, or if the

detergent fails EPA confirmatory deposit

control performance testing pursuant to

§ 80.167, the Administrator may deny or

withdraw the detergent’s eligibility to be

used to satisfy the detergency

requirements of this subpart.

(1) The detergent additive

manufacturer must properly register the

detergent additive under 40 CFR part

79. For this purpose:

(i) The compositional data required

under § 79.21(a) of this chapter shall

include the information specified in

§ 80.162.

(ii) The minimum recommended

additive concentration required under

§ 79.21(d) of this chapter shall be

reported to EPA in units of gallons of

detergent additive package per 1000

gallons of gasoline or PRC, provided to

four digits. This concentration is the

lowest additive concentration (LAC)

referred to in § 80.170, and shall be

reported as follows:

(A) For a detergent additive registered

for use in unleaded gasoline, the

minimum concentration must be

determined and reported for each

certification option under which the

manufacturer wishes to certify the

additive pursuant to § 80.163.

(1) In the case of a detergent certified

for use in California gasoline based on

an existing certification granted by the

California Air Resources Board (CARB),

pursuant to § 80.163(d), the minimum

recommended concentration must equal

or exceed the amount specified in the

CARB certification.

(2) In the case of any other detergent

certification option, the minimum

recommended concentration must equal

or exceed the amount mixed into the

associated test fuel specified in § 80.164,

which was shown to satisfy the PFID

and IVD deposit control performance

tests and standards specified in

§ 80.165.

(B) For a detergent registered for use

in leaded gasoline, the minimum

recommended concentration must be no

less than the amount shown to be

needed for control of carburetor

deposits, pursuant to the test procedure

and test fuel guidelines in § 80.166.

(C) Once it has been registered by

EPA, the minimum recommended

concentration specified by a detergent

manufacturer to detergent blenders and

other users of the additive, pursuant to

paragraph (c) of this section, may not be

changed without first notifying EPA.

Such notification should be sent by

certified mail to the address specified in

§ 80.174(b). The change in minimum

concentration must be supported by

existing certification data or else the

notification to EPA must be

accompanied by new certification

information which demonstrates that

the modification is consistent with the

requirements of paragraphs (b)(1)(ii)(A)

and (B) of this section.

(2) The detergent additive

manufacturer (or other certifying party)

must submit to EPA a sample of the

actual detergent additive package which

was used in the certification testing

specified in § 80.164 or, if such sample

is not available, then a sample which

has the same composition as the

package used in certification testing.

(i) The sample volume shall be

between 250 ml and 500 ml.

(ii) The sample shall be packaged in

a container which has a resealable

closure and which will maintain sample

integrity for at least one year. The

container shall be labeled with the name

and address of the manufacturer and the

name of the detergent additive package.

(iii) Any known shelf life limitations,

and any available information on

optimal temperature, light exposure, or

other conditions to prolong sample shelf

life, shall be provided.

(iv) If the certifying party wishes to

claim that the sample or any

accompanying documents are entitled to

special handling for reasons of business

confidentiality, the party must clearly

identify the sample or documents as

such. EPA will handle any samples or

documents with such claims according

to the regulations at 40 CFR part 2.
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35365

(v) The sample shall be submitted to

EPA, at the address provided in

§ 80.174(a), within seven days of the

date on which the certification letter for

the detergent package is sent to EPA as

required by paragraph (b)(3) of this

section.

(3) The detergent additive

manufacturer (or other certifying party)

shall submit a certification letter for the

detergent additive package to the

address in § 80.174(b). The party must

use certified or express mail with return

receipt service. The letter shall be

signed by a person legally authorized to

represent the certifying party and shall

contain the following information:

(i) Identifying information.

(A) The name and address of the

detergent additive manufacturer.

(B) In any case where the certifier is

not the detergent additive manufacturer,

such as in the case of a fuel-specific

certification pursuant to § 80.163(c), the

name and address of the certifier.

(C) The commercial identifying name

of the detergent additive product as

registered under the requirements of

§ 79.21 of this chapter.

(ii) A statement attesting that:

(A) The detergent package which is

the subject of this certification has been

tested according to applicable

procedural and test fuel requirements in

this subpart and has met the applicable

performance standards; and

(B) The testing was conducted in a

manner consistent with good

engineering practices; and

(C) Complete documentation of the

test fuel formulation and IVD

demonstration procedures, detergent

performance test procedures, and test

results are available for EPA’s

inspection upon request.

(iii) The name and location of the

laboratory(ies) at which the certification

testing was conducted and the dates

during which the testing was

conducted.

(iv) For each option under which

certification is sought pursuant to

§ 80.163, specifications of the test fuel(s)

in which the detergent underwent

performance testing. These fuel

specifications must include:

(A) The sulfur content in weight

percent.

(B) The T–90 distillation point in

degrees Fahrenheit.

(C) The olefin content in volume

percent.

(D) The aromatic content in volume

percent.

(E) The identity and volume percent

of any oxygenate compound.

(F) The source of the test fuel(s) and/

or fuel blend stocks used to formulate

the test fuel(s).

(v) In the case of a national or PADD

certification (pursuant to § 80.163 (a) or

(b)) for which the test fuel was specially

formulated from refinery blend stocks,

the results of the IVD demonstration

test, pursuant to § 80.164(b)(3).

(vi) In the case of a fuel-specific

detergent certification, pursuant to

§ 80.163(c), the definition of the

segregated gasoline pool, including any

permitted PRC, for which the

certification is sought, and the fuel

parameter percentile distributions

determined for the subject gasoline

pool, as specified in § 80.164(c). The

percentile distributions must include all

of the fuel parameters listed in

paragraph (b)(3)(iv) (A) through (D) of

this section, along with any other fuel

parameter(s) which the certifier wishes

to use to define the certification fuel. As

specified in § 80.164(c)(1)(iv), the

procedures used to measure the

additional parameters must be

identified, as well as the levels of these

additional parameters present in the test

fuel(s).

(vii) In the case of a certification for

California gasoline based on an existing

certification granted by CARB, pursuant

to § 80.163(d), a copy of the CARB

certificate.

(viii) The test concentration(s) of the

subject detergent additive in each test

fuel, and the corresponding test results

(percent flow restriction demonstrated

in the PFID test and milligrams of

deposit per valve demonstrated in the

IVD test).

(ix) For each option under which

certification of the detergent is sought,

the minimum recommended

concentration which the certifying party

seeks to establish for the detergent

additive package, pursuant to paragraph

(b)(1)(ii) of this section.

(4) EPA will acknowledge receipt of

the detergent certification letter. The

effective date of certification will be the

sooner of 60 days from the date on

which EPA receives the certification

letter, or the certifier’s receipt of EPA’s

acknowledgement of the certification

letter. However, neither the passage of

60 days nor EPA’s acknowledgement

will signify acceptance by EPA of the

validity of the information in the

certification letter or the adequacy or

potency of the detergent sample

submitted pursuant to paragraph (b)(2)

of this section. EPA may elect at any

time to review the detergent

certification data, analyze the submitted

detergent additive sample, or subject the

detergent additive package to

confirmatory testing as described in

§ 80.167 and, where appropriate, may

disqualify a detergent certification

according to the provisions in paragraph

(e) of this section.

(c) The minimum concentration

reported in the detergent registration

according to the provisions of paragraph

(b)(1)(ii) of this section, plus any

restrictions in use associated with that

concentration, must be accurately

communicated in writing by the

additive manufacturer to each fuel

manufacturer or detergent blender who

purchases the subject detergent for

purpose of compliance with the gasoline

detergency requirements of this subpart,

and to any additive manufacturer who

purchases the subject additive with the

intent of reselling it to a fuel

manufacturer for this purpose.

(d) The rate at which a detergent

blender treats gasoline with a detergent

additive package must be no less than

the minimum recommended

concentration reported for the subject

detergent additive pursuant to

paragraph (b)(1)(ii) of this section,

except under the following conditions:

(1) If a detergent blender possesses

deposit control performance test results

as specified in § 80.165 or § 80.166

which show that the minimum treat rate

recommended by the manufacturer of a

detergent additive product exceeds the

amount of that detergent actually

required for effective deposit control,

then, upon informing EPA in writing of

these circumstances, the detergent

blender may use the detergent at the

lower concentration substantiated by

these test results.

(2) The notification to EPA must

clearly specify the name of the detergent

product and its manufacturer, the

concentration recommended by the

detergent manufacturer, and the lower

concentration which the detergent

blender intends to use. The notification

must also attest that the required data

are available to substantiate the deposit

control effectiveness of the detergent at

the intended lower concentration. The

notification must be sent by certified

mail to the address specified in

§ 80.174(b).

(3) At its discretion, EPA may require

that the detergent blender submit the

test data purported to substantiate the

claimed effectiveness of the lower

concentration of the detergent additive.

In addition, EPA may require the

manufacturer of the subject detergent

additive to submit test data

substantiating the minimum

recommended concentration specified

in the detergent additive registration. In

either case, EPA will send a letter to the

appropriate party; the supporting data

will be due to EPA within 30 days of

receipt of EPA’s letter.
35366 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

(i) If the detergent blender fails to

submit the required supporting data to

EPA in the allotted time period, or if

EPA judges the submitted data to be

inadequate to support the detergent

blender’s claim that the lower

concentration provides a level of

deposit control consistent with the

requirements of this section, then EPA

will disapprove the use of the detergent

at the lower concentration. Further, the

detergent blender may be subject to

applicable liabilities and penalties

pursuant to §§ 80.169 and 80.172 for

any gasoline or PRC it has additized at

the lower concentration.

(ii) If the detergent manufacturer fails

to submit the required test data to EPA

within the allotted time period, EPA

will proceed on the assumption that

data are not available to substantiate the

minimum recommended concentration

specified in the detergent registration,

and the subject additive may be

disqualified for use in complying with

the requirements of this subpart,

pursuant to the procedures in paragraph

(e) of this section. The detergent

manufacturer may also be subject to

applicable liabilities and penalties in

§§ 80.169 and 80.172.

(iii) If both parties submit the required

information, EPA will evaluate the

quality and results of both sets of test

data, and will either approve or

disapprove the use of the lower treat

rate submitted by the detergent blender.

EPA will inform both parties of the

results of its analysis.

(e) Disqualification of a detergent

additive package. (1) When EPA makes

a preliminary determination that a

detergent additive certifier has failed to

comply with the detergent certification

requirements of this section, including a

failure to submit required materials for

a detergent additive or submission of

materials which EPA deems inadequate,

or if a detergent additive fails

confirmatory testing conducted

pursuant to § 80.167, EPA shall notify

the additive certifier by certified mail,

return receipt requested, setting forth

the basis for that determination and

informing the certifier that the detergent

may lose its eligibility to be used to

comply with the detergency

requirements of this section.

(2) If EPA determines that the

detergent certification was created by

fraud or other misconduct, such as a

negligent disregard for the truthfulness

or accuracy of the required information,

the detergent certification will be

considered void ab initio and the

disqualification will be retroactive to

July 1, 1997 or the date on which the

additive product was first certified,

whichever is later.

(3) The certifier will be afforded 60

days from the date of receipt of the

notice of intent of detergent

disqualification to submit written

comments concerning the notice, and to

demonstrate or achieve compliance with

the specific requirements which provide

the basis for the proposed

disqualification. If the certifier does not

respond in writing within 60 days from

the date of receipt of the notice of intent

of disqualification, the detergent

disqualification shall become final and

the Administrator shall notify the

certifier of such final disqualification

order. If the certifier responds in writing

within 60 days from the date of receipt

of the notice of intent to disqualify, the

Administrator shall review and consider

all comments submitted by the certifier

before taking final action concerning the

proposed disqualification. All

correspondence regarding a

disqualification must be sent to the

address provided in § 80.174(b).

(4) As part of a written response to a

notice of intent to disqualify, a certifier

may request an informal hearing

concerning the notice. Any such request

shall state with specificity the

information the certifier wishes to

present at such a hearing. If an informal

hearing is requested, EPA shall schedule

such a hearing within 90 days from the

date of receipt of the request. If an

informal hearing is held, the subject

matter of the hearing shall be confined

solely to whether or not the certifier has

complied with the specific requirements

which provide the basis for the

proposed disqualification. If an informal

hearing is held, the designated presiding

officer may be any EPA employee, the

hearing procedures shall be informal,

and the hearing shall not be subject to

or governed by 40 CFR part 22 or by 5

U.S.C. 554, 556, or 557. A verbatim

transcript of each informal hearing shall

be kept and the Administrator (or

designee) shall consider all relevant

evidence and arguments presented at

the hearing in making a final decision

concerning a proposed disqualification.

(5) If a certifier who has received a

notice of intent to disqualify submits a

timely written response, and the

Administrator (or designee) decides

after reviewing the response and the

transcript of any informal hearing to

disqualify the detergent for use in

complying with the requirements of this

subpart, the Administrator (or designee)

shall issue a final disqualification order

and forward a copy of the

disqualification order to the certifier by

certified mail. Notice of the

disqualification order will also be

published in the Federal Register. The

disqualification will become effective as

of the date on which the copy of the

order is received by the certifier. If the

certifier is also a blender of the

disqualified additive, then the certifier

must stop using the ineligible detergent

upon receipt of the disqualification

order.

(6) Within 10 days of receipt of EPA’s

notification of the final decision to

disqualify a detergent additive package

pursuant to this paragraph (e), the

detergent certifier must submit to EPA,

at the address specified in § 80.174(b), a

list of its customers who use the

disqualified detergent. Failure to do so

may subject the certifier to liabilities for

violations of § 80.168 that result from

the use of the uncertified detergent. EPA

shall inform the certifier’s customers by

certified mail that the detergent is no

longer eligible for compliance with the

requirements of this subpart. These

parties must stop using the ineligible

detergent additive package and

substitute an eligible detergent additive

within 45 days of receiving the

notification, or within 45 days of

publication of the disqualification

notice in the Federal Register,

whichever occurs sooner.

§ 80.162 Additive compositional data.

For a detergent additive product to be

eligible for use by detergent blenders in

complying with the gasoline detergency

requirements of this subpart, the

compositional data to be supplied to

EPA by the additive manufacturer for

the purpose of registering a detergent

additive package under § 79.21(a) of this

chapter must include the items listed in

this section. In the case of items

requiring measurement or other

technical analysis, and for which a

specific test procedure is not stipulated

herein, the procedure must conform to

reasonable and customary standards of

repeatability and reproducibility, and

reasonable and customary limits of

detection and accuracy for the type of

test procedure or analytic procedure in

question. At EPA’s request, detailed

documentation of any such test

procedure must be submitted within 10

days of the registrant’s receipt of EPA’s

request.

(a) A complete listing of the

components of the detergent additive

package and the weight and/or volume

percent (as applicable) of each

component of the package.

(1) When possible, standard chemical

nomenclature shall be used or the

chemical structure of the component

shall be given. Polymeric components

may be reported as the product of other

chemical reactants, provided that the

supporting data specified in paragraph

(b) of this section is also reported.
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35367

(2) Each detergent-active component

of the package shall be classified into

one of the following designations:

(i) Polyalkyl amine;

(ii) Polyether amine;

(iii) Polyalkylsuccinimide;

(iv) Polyalkylaminophenol;

(v) Detergent-active petroleum-based

carrier oil;

(vi) Detergent-active synthetic carrier

oil; and

(vii) Other detergent-active

component (identify category, if

feasible.)

(3) Composition variability.

(i) The composition of a detergent

additive reported in a single additive

registration (and the detergent additive

product sold under a single additive

registration) may not:

(A) Include detergent-active

components which differ in identity

from those contained in the detergent

additive package at the time of

certification testing; or

(B) Include a range of concentration

for any detergent-active component

such that, if the component were

present in the detergent additive

package at the lower bound of the

reported range, the deposit control

effectiveness of the additive package

would be reduced as compared with the

level of effectiveness demonstrated

during certification testing.

(ii) The identity or concentration of

non-detergent-active components of the

detergent additive package may vary

under a single registration, provided

that the range of such variation is

specified in the registration and that

such variability does not reduce the

deposit control effectiveness of the

additive package as compared with the

level of effectiveness demonstrated

during certification testing.

(iii) Except as provided in paragraph

(a)(3)(iv) of this section, detergent

additive packages which do not satisfy

the restrictions in this paragraph (a)(3)

must be separately registered. EPA may

disqualify an additive for use in

satisfying the requirements of this

subpart if EPA determines that the

variability included within a given

detergent additive registration may

reduce the deposit control effectiveness

of the detergent package such that it

may invalidate the minimum

recommended concentration reported in

accordance with the applicable

requirements of § 80.161(b)(1)(ii).

(iv) A change in minimum

concentration requirements resulting

from a modification of detergent

additive composition shall not require a

new detergent additive registration or a

change in existing registration if:

(A) The modification is effected by a

detergent blender only for its own use

or for the use of parties which are

subsidiaries of, or share common

ownership with, the blender, and the

modified detergent is not sold or

transferred to other parties; and

(B) The modification is a dilution of

the additive for the purpose of ensuring

proper detergent flow in cold weather;

and

(C) Gasoline is the only diluting agent

used; and

(D) The diluted detergent is

subsequently added to gasoline at a rate

that attains the detergent’s registered

minimum recommended concentration,

taking into account the dilution; and

(E) EPA is notified, either before or

within seven days after the dilution

action, of the identity of the detergent,

the identity of the diluting material, the

amount or percentage of the dilution,

the change in treat rate necessitated by

the dilution, and the locations and time

period of diluted detergent usage. The

notification shall be sent or faxed to the

address in § 80.174(c).

(b) For detergent-active polymers and

detergent-active carrier oils which are

reported as the product of other

chemical reactants:

(1) Identification of the reactant

materials and the manufacturer’s

acceptance criteria for determining that

these materials are suitable for use in

synthesizing detergent components. The

manufacturer must maintain

documentation, and submit it to EPA

upon request, demonstrating that the

acceptance criteria reported to EPA are

the same criteria which the

manufacturer specifies to the suppliers

of the reactant materials.

(2) A Gel Permeation Chromatograph

(GPC), providing the molecular weight

distribution of the polymer or detergentactive carrier oil components and the

concentration of each chromatographic

peak representing more than one

percent of the total mass. For these

results to be acceptable, the GPC test

procedure must include equipment

calibration with a polystyrene standard

or other readily attainable and generally

accepted calibration standard. The

identity of the calibration standard must

be provided, together with the GPC

characterization of the standard.

(c) For non-detergent-active carrier

oils, the following parameters:

(1) T10, T50, and T90 distillation

points, and end boiling point, measured

according to applicable test procedures

cited in § 80.46.

(2) API gravity and viscosity

(3) Concentration of oxygen, sulfur,

and nitrogen, if greater than or equal to

0.5 percent (by weight) of the carrier oil

(d) Description of an FTIR-based

method appropriate for identifying the

detergent additive package and its

detergent-active components (polymers,

carrier oils, and others) both

qualitatively and quantitatively,

together with the actual infrared spectra

of the detergent additive package and

each detergent-active component

obtained by this test method.

(e) To provide a basis for establishing

an affirmative defense to presumptive

liability pursuant to

§ 80.169(c)(4)(i)(D)(2)(i), specific

physical parameters must be identified

which the manufacturer considers

adequate and appropriate, in

combination with other information and

sampling requirements under this

subpart, for identifying the detergent

additive package and monitoring its

production quality control.

(1) Such parameters shall include (but

need not be limited to) viscosity,

density, and basic nitrogen content,

unless the additive manufacturer

specifically requests, and EPA approves,

the substitution of other parameter(s)

which the manufacturer considers to be

more appropriate for a particular

additive package. The request must be

made in writing and must include an

explanation of how the requested

physical parameter(s) are helpful as

indicator(s) of detergent production

quality control. EPA will respond to

such requests in writing; the additional

parameters are not approved until the

certifier receives EPA’s written

approval.

(2) The manufacturer shall identify a

standardized measurement method,

consistent with the chemical and

physical nature of the detergent

product, which will be used to measure

each parameter. The documented ASTM

repeatability for the method shall also

be cited. The manufacturer’s target

value for each parameter in the

detergent package, and the expected

range of production values for each

parameter, shall be specified.

(3) EPA will consider the parameter

measurements to be an acceptable basis

for establishing an affirmative defense to

presumptive liability, if the expected

range of variability differs from the

target value by an amount no greater

than five times the standard

repeatability of the test procedure, or by

no more than 10 percent of the target

value, whichever is less. However, in

the case of nitrogen analysis or other

procedures for measuring

concentrations of specific chemical

compounds or elements, when the target

value is less than 10 parts per million,

a range of variability up to 50 percent
35368 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

of the target value will be considered

acceptable.

(4) If a manufacturer wishes to rely on

measurement methods or production

variability ranges which do not conform

to the above limitations, then the

manufacturer must receive prior written

approval from EPA in order to be

assured that any related parameter

measurements will be considered an

acceptable basis for establishing an

affirmative defense. A request for such

allowance must be made in writing. It

must fully justify the adequacy of the

test procedure, explain why a broader

range of variability is required, and

provide evidence that the production

detergent will perform adequately

throughout the requested range of

variability.

§ 80.163 Detergent certification options.

To be used to satisfy the detergency

requirements under § 80.161(a), a

detergent additive must be certified in

accordance with the requirements of

one or more of the options and

suboptions described in this section.

Where a certification option makes an

additive eligible for use in a particular

gasoline, that additive is also eligible for

use in PRC which will be added to the

particular gasoline. Under each option,

the lowest additive concentration (LAC)

or minimum recommended

concentration registered for a detergent

additive package, pursuant to

§ 80.161(b)(1)(ii), must equal or exceed

the lowest detergent treat rate shown to

be needed in the designated test fuel in

order to meet the deposit control

performance requirements specified in

§ 80.165.

(a) National certification. A detergent

certified under a national certification

option is eligible for use in gasoline

which can be sold or dispensed

anywhere within the United States or its

territories (subject to approved state

programs).

(1) National generic certification

option. To be certified under this

option, a candidate detergent must meet

the deposit control performance test

requirements and standards specified in

§ 80.165 using test fuels that conform to

the requirements in § 80.164(b)(1), Table

1, Line 1. A detergent certified under

this option is eligible to be used at a

conforming LAC in any grade of

gasoline, with or without an oxygenate

component.

(i) National nonoxygenate suboption.

The requirements for certification under

this suboption are the same as those in

paragraph (a)(1) of this section, except

that, pursuant to § 80.164(a)(2)(ii), the

certification test fuel shall contain no

ethanol or other oxygenate. A detergent

certified under this suboption is eligible

to be used at a conforming LAC only in

gasoline that does not contain an

oxygenate component.

(ii) National oxygenate-specific

suboption. The requirements for

certification under this suboption are

the same as those in paragraph (a)(1) of

this section, except that, pursuant to

§ 80.164(a)(2)(iii), the certification test

fuel shall contain an oxygenate

compound other than ethanol. A

detergent certified under this suboption

is eligible to be used at a conforming

LAC only in gasoline that contains no

oxygenate component other than the

one present in the test fuel.

(2) National premium certification

option. To be certified under this

option, a candidate detergent must meet

the deposit control performance test

requirements and standards specified in

§ 80.165 using test fuels that conform to

the requirements in § 80.164(b)(1), Table

1, Line 2. A detergent certified under

this option is eligible to be used at a

conforming LAC only in premium grade

gasoline, with or without an oxygenate

component.

(i) National premium nonoxygenate

suboption. The requirements for

certification under this suboption are

the same as those in paragraph (a)(2) of

this section, except that, pursuant to

§ 80.164(a)(2)(ii), the certification test

fuel shall contain no ethanol or other

oxygenate. A detergent certified under

this suboption is eligible to be used at

a conforming LAC only in premium

grade gasoline that does not contain an

oxygenate component.

(ii) National premium oxygenatespecific suboption. The requirements for

certification under this suboption are

the same as those in paragraph (a)(2) of

this section, except that, pursuant to

§ 80.164(a)(2)(iii), the certification test

fuel shall contain an oxygenate

compound other than ethanol. A

detergent certified under this suboption

is eligible to be used at a conforming

LAC only in gasoline that is premium

grade and contains no oxygenate

component other than the one present

in the test fuel.

(b) Petroleum Administrative Defense

District (PADD) Certification. A

detergent certified under a PADD

certification option is eligible for use in

gasoline which can be sold or dispensed

to the ultimate purchaser, or to those

parties who sell or dispense to the

ultimate consumer, only within the

PADD for which the certification was

granted. The states and jurisdictions

included within each PADD are

specified in § 79.59(b)(3)(i) through (v),

except that, for purposes of PADD

certification, the state of California is

excluded from PADD V.

(1) PADD generic certification option.

To be certified under this option, a

candidate detergent must meet the

deposit control performance test

requirements and standards specified in

§ 80.165 using test fuels that conform to

the requirements in § 80.164(b)(1), Table

2, for a selected PADD. A detergent

certified under this option is eligible to

be used at a conforming LAC in any

grade of gasoline, with or without an

oxygenate component, provided that the

gasoline is ultimately dispensed in the

selected PADD.

(i) PADD nonoxygenate suboption.

The requirements for certification under

this suboption are the same as those in

paragraph (b)(1) of this section, except

that, pursuant to § 80.164(a)(2)(ii), the

certification test fuel shall contain no

ethanol or other oxygenate. A detergent

certified under this suboption is eligible

to be used at a conforming LAC only in

gasoline that is nonoxygenated and is

ultimately dispensed in the selected

PADD.

(ii) PADD oxygenate-specific

suboption. The requirements for

certification under this suboption are

the same as those in paragraph (b)(1) of

this section, except that, pursuant to

§ 80.164(a)(2)(iii), the certification test

fuel shall contain an oxygenate

compound other than ethanol. A

detergent certified under this suboption

is eligible to be used at a conforming

LAC only in gasoline that contains no

oxygenate component other than the

one present in the test fuel and is

ultimately dispensed in the selected

PADD.

(2) PADD premium certification

option. To be certified under this

option, a candidate detergent must meet

the deposit control performance test

requirements and standards specified in

§ 80.165 using test fuels that conform to

the requirements in § 80.164(b)(1), Table

2, for a selected PADD. A detergent

certified under this option is eligible to

be used at a conforming LAC only in

gasoline that is premium grade (with or

without an oxygenate component) and

is ultimately dispensed in the selected

PADD.

(i) PADD premium nonoxygenate

suboption. The requirements for

certification under this suboption are

the same as those in paragraph (b)(2) of

this section, except that, pursuant to

§ 80.164(a)(2)(ii), the certification test

fuel shall contain no ethanol or other

oxygenate. A detergent certified under

this suboption is eligible to be used at

a conforming LAC only in gasoline that

is premium grade, contains no
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35369

oxygenate component, and is ultimately

dispensed in the selected PADD.

(ii) PADD premium oxygenate-specific

suboption. The requirements for

certification under this suboption are

the same as those in paragraph (b)(2) of

this section, except that, pursuant to

§ 80.164(a)(2)(iii), the certification test

fuel shall contain an oxygenate

compound other than ethanol. A

detergent certified under this suboption

is eligible to be used at a conforming

LAC only in gasoline that is premium

grade, contains no oxygenate

component other than the one present

in the test fuel, and is ultimately

dispensed in the selected PADD.

(c) Fuel-specific certification. Except

as provided in paragraph (c)(3) of this

section, to be certified under the fuelspecific certification option, a candidate

detergent must meet the deposit control

performance test requirements and

standards specified in § 80.165 using

test fuels that conform to the

requirements of § 80.164(c).

(1) A detergent certified under this

option is eligible to be used at a

conforming LAC only in the defined

gasoline pool reported in the

certification letter pursuant to

§ 80.161(b)(3).

(i) The gasoline pool may only

include gasoline produced or

distributed from the facilities covered

by the fuel survey which was used to

define the fuel-specific certification test

fuels, pursuant to § 80.164(c)(1).

(ii) The gasoline pool must be kept

segregated from any other gasoline prior

to blending with the detergent additive.

(iii) Depending on the oxygenate

components added to the test fuel

pursuant to § 80.164(a)(2), the gasoline

pool may be inclusive of all grades and

all oxygenate blending characteristics

(i.e., generic), or may be restricted to

non-oxygenated gasoline, or to gasoline

containing a specific oxygenate

compound. The certification may also

be restricted to premium grade gasoline.

Any such use restrictions must be

specified in the certification letter.

Provisions in §§ 80.168 and 80.171(a)(9)

through (12) related to such use

restrictions also apply.

(2) Detergent certification under this

option entails special initial and annual

reporting requirements, specified under

§§ 80.161(b)(3)(vi) and 80.164(c)(3),

which necessitate that the responsible

party have control over and access to

the segregated gasoline pool for which

the detergent is certified. For this

reason, the certifying party under this

option is likely to be (but is not required

to be) a fuel manufacturer or detergent

blender, rather than the additive

manufacturer.

(3) If a certifier demonstrates that the

required test fuel representing a

segregated pool of gasoline meets the

deposit control performance standards

specified in § 80.165 in the absence of

a detergent additive, or using a

detergent additive which has only PFIDcontrol activity, then this gasoline pool

(and PFID detergent, if applicable) can

be certified accordingly under the fuelspecific option.

(4) Gasoline properly additized with a

detergent certified under the fuelspecific option may be transferred or

sold anywhere within the United States

and its territories (subject to approved

state programs).

(d) CARB-Based Certification. A valid

certification under section 2257 of Title

13, California Code of Regulations

(CARB certification) may be the basis for

a certification under the following

restrictions and conditions:

(1) A detergent certified under this

option may be used at the LAC specified

in the CARB certification only in

gasoline that meets the requirements of

California Phase II reformulated

gasoline (pursuant to Title 13, Chapter

5, Article 1, Subarticle 2, California

Code of Regulations, Standards for

Gasoline Sold Beginning March 1,

1996). The grade(s) of California

gasoline which may be so additized, and

the oxygenate(s) which may be present,

are as specified in the CARB

certification for the detergent in

question.

(2) The gasoline must be either:

Additized in California; or sold or

dispensed to the ultimate consumer in

California (or to parties who sell or

dispense to the ultimate consumer in

California); or both additized and

ultimately dispensed in California.

(3) A certification under this option

will continue to be valid only as long as

the CARB certification remains valid.

The certifier must cease selling or using

a detergent immediately upon being

notified by CARB that the CARB

certification for this detergent has been

invalidated, and must notify EPA within

7 days of receipt of this notification.

§ 80.164 Certification test fuels.

(a) General requirements. This section

provides specifications for the test fuels

required in conjunction with the

certification options described in

§ 80.163. For each such certification

option, the associated test fuel must

meet or exceed the levels of four basic

fuel parameters (aromatics, fuel sulfur,

olefins, and T–90) prescribed here and

may also contain specified oxygenate

compounds. In addition, pursuant to

paragraph (b)(3) of this section, some

fuels must undergo an IVD

demonstration test before they are

eligible to be used as test fuels under

this certification program. Test fuel

characteristics must be reported to EPA

in the detergent certification letter

required pursuant to § 80.161(b)(3).

(1) Quantitative specifications for the

four basic fuel parameters, provided in

paragraphs (b) and (c) of this section,

refer to the levels of these parameters in

the base gasoline prior to the addition

of any oxygenate. The levels of the basic

fuel parameters must be measured in

accordance with applicable procedures

in § 80.46.

(2) Oxygenate components of

certification test fuels must be of fuel

grade quality. The type and amount of

oxygenate to be blended into the test

fuel (if any) shall be as follows:

(i) To certify a detergent for generic

use (i.e., for use in gasoline containing

any oxygenate compound, as well as for

use in nonoxygenated gasoline), the

finished test fuel shall contain ethanol

at 10 volume percent.

(ii) To certify a detergent specifically

for use in nonoxygenated gasoline, no

oxygenate compounds shall be added to

the test fuel.

(iii) To certify a detergent specifically

for use in gasoline blended with a

specified oxygenate compound other

than ethanol, the specified oxygenate

must be added to the test fuel in an

amount such that the finished fuel

contains the oxygenate at the highest

concentration at which the specific

oxygenate may be used in in-use

gasoline.

(3) No detergent-active substance

other than the detergent additive

package undergoing testing may be

added to a certification test fuel. Typical

nondetergent additives, such as

antioxidants, corrosion inhibitors, and

metal deactivators, may be present in

the test fuel at the discretion of the

additive certifier. In addition, any

nondetergent additives (other than

oxygenate compounds) which are

commonly blended into gasoline and

which are known or suspected to affect

IVD or PFID formation, or to reduce the

ability of the detergent in question to

control such deposits, should be added

to the test fuel for certification testing.

(4) Certification test requirements may

be satisfied for a detergent additive

using more than one batch of test fuel,

provided that each batch satisfies all

applicable test fuel requirements under

this section.

(5) Unless otherwise required by this

section, finished test fuels must conform

to the requirements for commercial

gasoline described in ASTM D 4814–

95c, ‘‘Standard Specification for

Automotive Spark-Ignition Engine
35370 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

Fuel’’, which is incorporated by

reference. This incorporation by

reference was approved by the Director

of the Federal Register in accordance

with 5 U.S.C. 552(a) and 1 CFR part 51.

Copies may be inspected at U.S. EPA,

OAR, 401 M Street, Southwest,

Washington, DC 20460, or at the Office

of the Federal Register, 800 North

Capitol Street, NW., suite 700,

Washington, DC. Copies of this material

may be obtained from ASTM, 1916 Race

St., Philadelphia, PA 19103.

(b) National and PADD certification

test fuels.

(1) Test fuels for the national generic

and premium certification options must

contain levels of the designated fuel

parameters which meet or exceed the

applicable values in Table 1. Test fuels

for the PADD generic certification

options must contain levels of the

designated fuel parameters which meet

or exceed the applicable values in Table

2. Test fuels for the PADD premium

certification options must contain levels

of the designated fuel parameters which

meet or exceed the applicable values in

Table 3. Oxygenate requirements for the

respective nonoxygenate and oxygenatespecific suboptions are specified in

paragraph (a)(2) of this section.

TABLE 1.—NATIONAL CERTIFICATION TEST FUELS

Certification option

Required minimum fuel parameter values

Sulfur

(weight %) T–90 (F) Olefins (volume %)

Aromatics

(volume %)

Oxygenate (volume %)

1. National Generic ............................................................................ 0.034 339 11.4 31.1 10% Ethanol.

2. National Premium .......................................................................... 0.016 332 6.5 35.9

TABLE 2.—PADD-SPECIFIC GENERIC CERTIFICATION TEST FUELS

Certification option

Required minimum fuel parameter values

Sulfur

(weight %) T–90 (F) Olefins (volume %)

Aromatics

(volume %)

Oxygenate (volume %)

PADD 1 Generic ................................................................................ 0.039 343 15.4 32.1

PADD 2 Generic ................................................................................ 0.034 338 10.3 29.3

PADD 3 Generic ................................................................................ 0.032 343 12.9 29.8 10% Ethanol.

PADD 4 Generic ................................................................................ 0.050 326 10.0 27.1

PADD 5 Generic ................................................................................ 0.021 337 7.6 34.5

TABLE 3.—PADD-SPECIFIC PREMIUM-GRADE CERTIFICATION TEST FUELS

Certification option

Required minimum fuel parameter values

Sulfur

(weight %) T–90 (F) Olefins (volume %)

Aromatics

(volume %)

Oxygenate (volume %)

PADD 1 Premium .............................................................................. 0.018 332 9.2 38.6

PADD 2 Premium .............................................................................. 0.014 333 6.0 34.3

PADD 3 Premium .............................................................................. 0.015 334 6.0 34.6 10% Ethanol.

PADD 4 Premium .............................................................................. 0.040 319 6.0 22.3

PADD 5 Premium .............................................................................. 0.011 332 4.3 36.7

(2) National and PADD certification

test fuels must either be formulated to

specification from normal refinery blend

stocks, or drawn from finished gasoline

supplies. The source of such samples

must be normally-operating gasoline

production or distribution facilities

located in the U.S. Samples must not be

drawn from a segregated gasoline pool

that is or will be covered by a fuelspecific certification under § 80.163(c)

on the date when the certification

information under this option is

submitted to EPA.

(3) To be eligible for use in detergent

additive certification testing, in addition

to the specifications above, national and

PADD test fuels which are specially

formulated from refinery blend stocks

must themselves undergo testing to

demonstrate their deposit-forming

tendency. For this purpose, the

unadditized, nonoxygenated test fuel

must be subjected to the IVD control test

procedure described in § 80.165(b). At

the discretion of the tester, the duration

of the demonstration test may be less

than 10,000 miles, provided the results

satisfy the standard of this paragraph. In

order to qualify for use in certification

testing, the formulated fuel’s test results

must meet or exceed the values shown

in Table 4 for the relevant certification

option. If the demonstration test results

do not meet these criteria, then the

formulated fuel may not be used for

detergent certification testing.

TABLE 4.—IVD DEMONSTRATION TEST CRITERIA

Certification option

Minimum required deposit level in IVD demonstration test

(mg/valve, average)

National PADD 1 PADD 2 PADD 3 PADD 4 PADD 5

Generic .............................................................................. 290 290 260 290 260 260
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35371

TABLE 4.—IVD DEMONSTRATION TEST CRITERIA—Continued

Certification option

Minimum required deposit level in IVD demonstration test

(mg/valve, average)

National PADD 1 PADD 2 PADD 3 PADD 4 PADD 5

Premium ............................................................................ 260 260 235 260 235 235

(c) Fuel-specific certification test

fuels. (1) Test fuels required for fuelspecific certification must contain levels

of each of the four basic fuel parameters

(aromatics, olefins, T–90, and fuel

sulfur) at no less than their respective

65th percentile values in the segregated

gasoline pool for which the detergent

certification is sought in accordance

with § 80.163(c). These values must be

determined by the certifier as follows:

(i) At least once monthly for at least

one complete year prior to the

certification, the certifier must measure

the levels of the required parameters in

representative fuel samples contributed

to the segregated gasoline pool by each

participating refinery, terminal, or other

fuel production or distribution facility.

The fuel parameters must be measured

in accordance with the test procedures

in § 80.46. If the applicability of the

fuel-specific certification is to be limited

to premium gasoline, then the required

fuel compositional data must be

collected only from samples of premium

gasoline.

(ii) The fuel composition survey

results, weighted according to the

percentage of gasoline contributed to the

segregated gasoline pool from each

participating facility, shall be used to

construct a percentile distribution of the

measured values for each of the fuel

parameters.

(iii) Data from more than one year

may be used to construct the required

statistical distribution provided that

only the total data from complete

consecutive years is used and that all

survey data must have been collected

within three years of the date the

certification information is submitted to

EPA.

(iv) At the discretion of the certifier,

other fuel parameters may be used to

define the certification test fuels in

addition to the four required

parameters. To be taken into account by

EPA in case of confirmatory testing

pursuant to § 80.167, such additional

parameters must be surveyed and

analyzed according to the same

requirements applicable to the four

standard parameters. In addition, any

optional parameters must be measured

using test procedures which conform to

reasonable and customary standards of

repeatability and reproducibility, and

reasonable and customary limits of

detection and accuracy for the type of

test procedure or analytic procedure in

question.

(v) Using the percentile distributions

calculated from the survey data for the

four required parameters and any

additional discretionary parameters, the

65th percentile value for each such

parameter shall be determined. Prior to

the addition of any oxygenate

compound, the fuel-specific

certification test fuel shall contain each

specified parameter at a level or

concentration no less than this 65th

percentile value. Test fuel oxygenate

requirements for generic, nonoxygenate,

and oxygenate-specific certification

suboptions are specified in paragraph

(a)(2) of this section.

(2) Fuel-specific certification test fuels

must either be formulated to

specification from the same refinery

blend stocks which are normally used to

blend the gasolines included in the

subject gasoline pool, or drawn from the

finished fuel supplies which contribute

to this pool of gasoline. Fuel-specific

certification test fuels need not undergo

an IVD demonstration test prior to use

in certification testing.

(3) The certifier must submit an

annual report to EPA within 30 days of

the anniversary of the initial

certification effective date. Failure to

submit the annual report by the required

date will invalidate the fuel-specific

certification and may subject the

certifier to liability and penalties under

§§ 80.169 and 80.172. The purpose of

the annual report is to update the

information on the composition of the

segregated gasoline pool that was

characterized by the initial fuel survey.

(i) For this purpose, the same fuel

survey and statistical analysis

requirements that were conducted

pursuant to paragraphs (c)(1)(i),(ii), and

(iv) of this section must be repeated,

using data for the most current twelvemonth period from each of the

production/distribution facilities that

contributed to the original fuel survey.

(ii) The annual report must present

the percentile distributions for each fuel

parameter as determined from the new

survey data and, for each measured fuel

parameter, must compare the newly

determined 50th percentile value with

the 60th percentile value for that

parameter as determined in the original

fuel survey.

(iii) If the new 50th percentile level

for any fuel parameter is greater than or

equal to the 60th percentile level

reported in the initial certification, then

the fuel-specific certification is no

longer valid. In such instance, the

certifier must immediately discontinue

the sale and use of the subject detergent

under the conditions of the fuel-specific

certification and must immediately

notify any downstream customers/

recipients of the subject detergent that

the certification is no longer valid and

that their use of the detergent must

discontinue within seven days. To avoid

liability and penalties under §§ 80.169

and 80.172, the certifier must take these

remedial steps within 45 days of the

anniversary of the original fuel-specific

certification. Downstream customers/

recipients must discontinue usage of the

detergent within seven days of receipt of

notification of the detergent’s invalidity

to avoid such liability.

(4) The fuel composition survey

results which support the original test

fuel specifications and the annual

statistical analyses, along with related

documentation on test methods and

statistical procedures, shall be retained

by the certifier for a period of at least

five years, and shall be made available

to EPA upon request.

§ 80.165 Certification test procedures and

standards.

This section specifies the deposit

control test requirements and

performance standards which must be

met in order to certify detergent

additives for use in unleaded gasoline,

pursuant to § 80.161(b)(1)(ii)(A)(2).

These standards must be met in the

context of the specific test procedures

identified in paragraphs (a) and (b) of

this section, except as provided in

paragraph (c) of this section. In any

case, the testing must be conducted and

the performance standards met when

the subject detergent additive is mixed

in a test fuel meeting all relevant

requirements of § 80.164, including the

deposit-forming tendency

demonstration specified in

§ 80.164(b)(3), if applicable. Complete

test documentation must be submitted
35372 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

by the certifying party within 30 days of

receipt of a written request from EPA for

such records.

(a) Fuel injector deposit control

testing. (1) The required test fuel must

produce no more than 5% flow

restriction in any one injector when

tested in accordance with ASTM D

5598–94, ‘‘Standard Test Method for

Evaluating Unleaded Automotive SparkIgnition Engine Fuel for Electronic Port

Fuel Injector Fouling,’’ 1994, which is

incorporated by reference. This

incorporation by reference was

approved by the Director of the Federal

Register in accordance with 5 U.S.C.

552(a) and 1 CFR part 51. Copies may

be inspected at U.S. EPA, OAR, 401 M

Street, Southwest, Washington, DC

20460, or at the Office of the Federal

Register, 800 North Capitol Street, NW.,

suite 700, Washington, DC. Copies of

this material may be obtained from

ASTM, 1916 Race St., Philadelphia, PA

19103.

(2) At the option of the certifier, fuel

injector flow may be measured at

intervals during the 10,000 mile test

cycle described in ASTM D 5598–94, in

addition to the flow measurements

required at the completion of the test

cycle, but not more than every 1,000

miles.

(b) Intake valve deposit control

testing. The required test fuel must

produce the accumulation of less than

100 mg of intake valve deposits on

average when tested in accordance with

ASTM D 5500–94, ‘‘Standard Test

Method for Vehicle Evaluation of

Unleaded Automotive Spark-Ignition

Engine Fuel for Intake Valve Deposit

Formation,’’ 1994, which is

incorporated by reference. This

incorporation by reference was

approved by the Director of the Federal

Register in accordance with 5 U.S.C.

552(a) and 1 CFR part 51. Copies may

be inspected at U.S. EPA, OAR, 401 M

Street, Southwest, Washington, DC

20460, or at the Office of the Federal

Register, 800 North Capitol Street, NW.,

suite 700, Washington, DC. Copies of

this material may be obtained from

ASTM, 1916 Race St., Philadelphia, PA

19103.

(c) If conducted using test fuels

meeting all relevant requirements of

§ 80.164, and completed prior to

September 3, 1996, then the PFID and

IVD control test procedures required for

detergent certification in California

(specified in section 2257 of Title 13,

California Code of Regulations) will also

be considered acceptable. California Air

Resources Board, ‘‘Test Method for

Evaluating Port Fuel Injector (PFI)

Deposits in Vehicle Engines’’, March 1,

1991, and California Air Resources

Board, ‘‘BMW—10,000 Miles Intake

Valve Test Procedure’’, March 1, 1991,

are incorporated by reference. This

incorporation by reference was

approved by the Director of the Federal

Register in accordance with 5 U.S.C.

552(a) and 1 CFR part 51. Copies may

be inspected at U.S. EPA, OAR, 401 M

Street, Southwest, Washington, DC

20460, or at the Office of the Federal

Register, 800 North Capitol Street, NW.,

suite 700, Washington, DC. Copies of

this material may be obtained from the

California Air Resource Board,

Stationary Source Division, 2020 L

Street, PO Box 2815, Sacramento, CA,

95814.

§ 80.166 Carburetor deposit control

performance test and test fuel guidelines.

EPA will use the guidelines in this

section to evaluate the adequacy of

carburetor deposit control test data,

used to support the minimum

concentration recommended for

detergents used in leaded gasoline

pursuant to § 80.161(b)(1)(ii)(B).

(a) Carburetor Deposit Control Test

Procedure and Performance Standard

Guidelines. For demonstration of

carburetor deposit control performance,

any generally accepted vehicle, engine,

or bench test procedure and associated

performance standard for carburetor

deposit control will be considered

adequate. Port and throttle body fuel

injector deposit control test data will

also be considered to be adequate

demonstration of an additive’s ability to

control carburetor deposits. Examples of

acceptable test procedures for

demonstration of carburetor deposit

control, in addition to the fuel injector

test procedure listed in § 80.165(a), are

contained in the following references:

(1) ‘‘Test Method for Evaluating Port

Fuel Injector (PFI) Deposits in Vehicle

Engines’’, March 1, 1991, Section 2257,

Title 13, California Code of Regulations.

(2) ‘‘A Vehicle Test Technique for

Studying Port Fuel Injector Deposits—A

Coordinating Research Council

Program’’, Robert Tupa et al., SAE

Technical paper No. 890213, 1989.

(3) ‘‘The Effects of Fuel Composition

and Additives on Multiport Fuel

Injector Deposits’’, Jack Benson et al.,

SAE Technical Paper Series No. 861533,

1986.

(4) ‘‘Injector Deposits—The Tip of

Intake System Deposit Problems’’, Brian

Taneguchi, et al., SAE Technical Paper

Series No. 861534, 1986.

(5) ‘‘Fuel Injector, Intake Valve, and

Carburetor Detergency Performance of

Gasoline Additives’’, C.H. Jewitt et al.,

SAE Technical Paper No. 872114, 1987.

(6) ‘‘Carburetor Cleanliness Test

Procedure, State-of-the-Art Summary,

Report: 1973–1981’’, Coordinating

Research Council, CRC Report No. 529,

Coordinating Research Council Inc.

(CRC), 219 perimeter Center Parking,

Atlanta, Georgia, 30346.

(b) Carburetor Deposit Control Test

Fuel Guidelines. (1) The gasoline used

in the tests described in paragraph (a) of

this section must contain the detergentactive components of the subject

detergent additive package in an amount

which corresponds to the minimum

recommended concentration recorded

in the respective detergent registration,

or less than this amount.

(2) The test fuel must not contain any

detergent-active components other than

those recorded in the subject detergent

certification.

(3) The composition of the test fuel

used in carburetor deposit control

testing, conducted to support the

claimed effectiveness of detergents used

in leaded gasoline, should be reasonably

typical of in-use gasoline in its tendency

to form carburetor deposits (or more

severe than typical in-use fuels) as

defined by the olefin and sulfur content.

A test fuel conforming to these

compositional guidelines may be

sampled directly from finished

gasolines or may be blended to

specification using typical refinery

blend stocks. Test data using leaded

fuels is preferred for this purpose, but

data collected using unleaded fuels may

also be acceptable provided that some

correlation with additive performance

in leaded fuels is available.

§ 80.167 Confirmatory testing.

EPA may test a detergent to confirm

that the required performance levels are

met. Based on the findings of this

confirmatory testing, a detergent

certification may be denied or revoked

under the provisions of § 80.161(e).

(a) Confirmatory testing conducted to

evaluate the validity of detergent

certifications under the national, PADD,

or fuel-specific options will generally

entail a single vehicle test using the

procedures detailed in § 80.165. The test

fuel(s) used in conducting confirmatory

certification testing will contain the

specified fuel parameters at or below the

minimum levels specified in § 80.164,

and will otherwise conform to the

applicable certification test fuel

specifications therein.

(b) Confirmatory certification testing

conducted to evaluate the validity of

CARB-based detergent certifications will

use the subject detergent in test fuel(s)

containing the relevant fuel parameters

at levels no greater than the maximum

levels for which the CARB certification

was granted. The test procedures will be

conducted pursuant to the procedures
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35373

specified under section 2257 of Title 13,

California Code of Regulations.

(c) Confirmatory testing conducted to

evaluate the validity of registration and

certification information specific to

detergent use in leaded gasoline will use

the subject detergent in a test fuel

containing the test fuel parameters at

levels no greater than those prescribed

in § 80.164. EPA will make all

reasonable efforts to use the same test

procedure for confirmatory testing

purposes as was used by the certifier in

conducting deposit control performance

testing.

(d) When EPA decides to conduct

confirmatory testing on a fuel or

additive which is not readily available

in the open market, EPA may request

that the detergent certifier and/or

manufacturer of such fuel or additive

furnish a sample in the needed quantity.

If testing is conducted to evaluate the

validity of a detergent certification

under the fuel-specific option, the

detergent blender must supply EPA

with test fuel, or with blend stocks with

which to formulate such test fuel, in

sufficient quantity to conduct the

specified deposit control performance

testing. The fuel or additive

manufacturer shall comply with a

sample request made pursuant to this

paragraph within 30 days of receipt of

the request.

§ 80.168 Detergent certification program

controls and prohibitions.

(a)(1) No person shall sell, offer for

sale, dispense, supply, offer for supply,

transport, or cause the transportation of

gasoline to the ultimate consumer for

use in motor vehicles or in any off-road

engines (except as provided in § 80.173),

or to a gasoline retailer or wholesale

purchaser-consumer, and no person

shall detergent-additize gasoline, unless

such gasoline is additized in conformity

with the requirements of § 80.161. No

person shall cause the presence of any

gasoline in the gasoline distribution

system unless such gasoline is additized

in conformity with the requirements of

§ 80.161.

(2) Gasoline has been additized in

conformity with the requirements of

§ 80.161 when the detergent component

satisfies the requirements of § 80.161

and when:

(i) The gasoline has been additized in

conformity with the detergent

composition and purpose-in-use

specifications of a detergent certified in

accordance with this subpart, and in

accordance with at least the minimum

concentration specifications of that

detergent as certified or as otherwise

provided under § 80.161(d); or

(ii) The gasoline is composed of two

or more commingled gasolines and each

component gasoline has been additized

in conformity with the detergent

composition and purpose-in-use

specifications of a detergent certified in

accordance with this subpart, and in

accordance with at least the minimum

concentration specifications of that

detergent as certified or as otherwise

provided under § 80.161(d); or

(iii) The gasoline is composed of a

gasoline commingled with a postrefinery component (PRC), and both of

these components have been additized

in conformity with the detergent

composition and use specifications of a

detergent certified in accordance with

this subpart, and in accordance with at

least the minimum concentration

specifications of that detergent as

certified or as otherwise provided under

§ 80.161(d).

(b) No person shall blend detergent

into gasoline or PRC unless such person

complies with the volumetric additive

reconciliation requirements of § 80.170.

(c) No person shall sell, offer for sale,

dispense, supply, offer for supply, store,

transport, or cause the transportation of

any gasoline, detergent, or detergentadditized PRC, unless the product

transfer document for the gasoline,

detergent or detergent-additized PRC

complies with the requirements of

§ 80.171.

(d) No person shall refine, import,

manufacture, sell, offer for sale,

dispense, supply, offer for supply, store,

transport, or cause the transportation of

any detergent that is to be used as a

component of detergent-additized

gasoline or detergent-additized PRC

unless such detergent conforms with the

composition specifications of a

detergent certified in accordance with

this subpart and the detergent otherwise

complies with the requirements of

§ 80.161. No person shall cause the

presence of any detergent in the

detergent, PRC, or gasoline distribution

systems unless such detergent complies

with the requirements of § 80.161.

(e)(1) No person shall sell, offer for

sale, dispense, supply, offer for supply,

transport, or cause the transportation of

detergent-additized PRC unless the PRC

has been additized in conformity with

the requirements of § 80.161. No person

shall cause the presence in the PRC or

gasoline distribution systems of any

detergent-additized PRC that fails to

conform to the requirements of § 80.161.

(2) PRC has been additized in

conformity with the requirements of

§ 80.161 when the detergent component

satisfies the requirements of § 80.161

and when:

(i) The PRC has been additized in

accordance with the detergent

composition and use specifications of a

detergent certified in accordance with

this subpart and in conformity with at

least the minimum concentration

specifications of that detergent as

certified or as otherwise provided under

§ 80.161(d), or

(ii) The PRC is composed of two or

more commingled PRCs, and each

component has been additized in

accordance with the detergent

composition and use specifications of a

detergent certified in accordance with

this subpart, and in conformity with at

least the minimum concentration

specifications of that detergent as

certified or as otherwise provided under

§ 80.161(d).

§ 80.169 Liability for violations of the

detergent certification program controls

and prohibitions.

(a) Persons Liable—(1) Gasoline nonconformity. Where gasoline contained in

any storage tank at any facility owned,

leased, operated, controlled or

supervised by any gasoline refiner,

importer, carrier, distributor, reseller,

retailer, wholesale purchaser-consumer,

oxygenate blender, or detergent blender,

is found in violation of any of the

prohibitions specified in § 80.168(a), the

following persons shall be deemed in

violation:

(i) Each gasoline refiner, importer,

carrier, distributor, reseller, retailer,

wholesale purchaser-consumer,

oxygenate blender, or detergent blender,

who owns, leases, operates, controls or

supervises the facility (including, but

not limited to, a truck or individual

storage tank) where the violation is

found;

(ii) Each gasoline refiner, importer,

distributor, reseller, retailer, wholesale

purchaser-consumer, oxygenate blender,

detergent manufacturer, distributor, or

blender, who refined, imported,

manufactured, sold, offered for sale,

dispensed, supplied, offered for supply,

stored, detergent additized, transported,

or caused the transportation of the

detergent-additized gasoline (or the base

gasoline component, the detergent

component, or the detergent-additized

post-refinery component of the gasoline)

that is in violation, and each such party

that caused the gasoline that is in

violation to be present in the gasoline

distribution system; and

(iii) Each gasoline carrier who

dispensed, supplied, stored, or

transported any gasoline in the storage

tank containing gasoline found to be in

violation, and each detergent carrier

who dispensed, supplied, stored, or

transported the detergent component of
35374 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

any PRC or gasoline in the storage tank

containing gasoline found to be in

violation, provided that EPA

demonstrates, by reasonably specific

showings by direct or circumstantial

evidence, that the gasoline or detergent

carrier caused the violation.

(2) Post-refinery component nonconformity. Where detergent-additized

PRC contained in any storage tank at

any facility owned, leased, operated,

controlled or supervised by any gasoline

refiner, importer, carrier, distributor,

reseller, retailer, wholesale purchaserconsumer, oxygenate blender, detergent

manufacturer, carrier, distributor, or

blender, is found in violation of the

prohibitions specified in § 80.168(e), the

following persons shall be deemed in

violation:

(i) Each gasoline refiner, importer,

carrier, distributor, reseller, retailer,

wholesale-purchaser consumer,

oxygenate blender, detergent

manufacturer, carrier, distributor, or

blender, who owns, leases, operates,

controls or supervises the facility

(including, but not limited to, a truck or

individual storage tank) where the

violation is found;

(ii) Each gasoline refiner, importer,

distributor, reseller, retailer, wholesale

purchaser-consumer, oxygenate blender,

detergent manufacturer, distributor, or

blender, who sold, offered for sale,

dispensed, supplied, offered for supply,

stored, detergent additized, transported,

or caused the transportation of the

detergent-additized PRC (or the

detergent component of the PRC) that is

in violation, and each such party that

caused the PRC that is in violation to be

present in the PRC or gasoline

distribution systems; and

(iii) Each carrier who dispensed,

supplied, stored, or transported any

detergent-additized PRC in the storage

tank containing PRC that is in violation,

and each detergent carrier who

dispensed, supplied, stored, or

transported the detergent component of

any detergent-additized PRC which is in

the storage tank containing detergentadditized PRC found to be in violation,

provided that EPA demonstrates by

reasonably specific showings by direct

or circumstantial evidence, that the

gasoline or detergent carrier caused the

violation.

(3) Detergent non-conformity. Where

the detergent (prior to additization)

contained in any storage tank or

container found at any facility owned,

leased, operated, controlled or

supervised by any gasoline refiner,

importer, carrier, distributor, reseller,

retailer, wholesale purchaser-consumer,

oxygenate blender, detergent

manufacturer, carrier, distributor, or

blender, is found in violation of the

prohibitions specified in § 80.168(d), the

following persons shall be deemed in

violation:

(i) Each gasoline refiner, importer,

carrier, distributor, reseller, retailer,

wholesale purchaser-consumer,

oxygenate blender, detergent

manufacturer, carrier, distributor, or

blender, who owns, leases, operates,

controls or supervises the facility

(including, but not limited to, a truck or

individual storage tank) where the

violation is found;

(ii) Each gasoline refiner, importer,

distributor, reseller, retailer, wholesale

purchaser-consumer, oxygenate blender,

detergent manufacturer, distributor, or

blender, who sold, offered for sale,

dispensed, supplied, offered for supply,

stored, transported, or caused the

transportation of the detergent that is in

violation, and each such party that

caused the detergent that is in violation

to be present in the detergent, gasoline,

or PRC distribution systems; and

(iii) Each gasoline or detergent carrier

who dispensed, supplied, stored, or

transported any detergent which is in

the storage tank or container containing

detergent found to be in violation,

provided that EPA demonstrates, by

reasonably specific showings by direct

or circumstantial evidence, that the

gasoline or detergent carrier caused the

violation.

(4) Volumetric additive reconciliation.

Where a violation of the volumetric

additive reconciliation requirements

established by § 80.168(b) has occurred,

the following persons shall be deemed

in violation:

(i) Each detergent blender who owns,

leases, operates, controls or supervises

the facility (including, but not limited

to, a truck or individual storage tank)

where the violation has occurred; and

(ii) Each gasoline refiner, importer,

carrier, distributor, reseller, retailer,

wholesale purchaser-consumer, or

oxygenate blender, and each detergent

manufacturer, carrier, distributor, or

blender, who refined, imported,

manufactured, sold, offered for sale,

dispensed, supplied, offered for supply,

stored, transported, or caused the

transportation of the detergent-additized

gasoline, the base gasoline component,

the detergent component, or the

detergent-additized PRC of the gasoline

that is in violation, provided that EPA

demonstrates, by reasonably specific

showings by direct or circumstantial

evidence, that such person caused the

violation.

(5) Product transfer document. Where

a violation of § 80.168(c) is found at a

facility owned, leased, operated,

controlled, or supervised by any

gasoline refiner, importer, carrier,

distributor, reseller, retailer, wholesale

purchaser-consumer, oxygenate blender,

detergent manufacturer, carrier,

distributor, or blender, the following

persons shall be deemed in violation:

each gasoline refiner, importer, carrier,

distributor, reseller, retailer, wholesale

purchaser-consumer, oxygenate blender,

detergent manufacturer, carrier,

distributor, or blender, who owns,

leases, operates, control or supervises

the facility (including, but not limited

to, a truck or individual storage tank)

where the violation is found.

(b) Branded Refiner Vicarious

Liability. Where any violation of the

prohibitions specified in § 80.168 has

occurred, with the exception of

violations of § 80.168(c), a refiner will

also be deemed liable for violations

occurring at a facility operating under

such refiner’s corporate, trade, or brand

name or that of any of its marketing

subsidiaries. For purposes of this

section, the word facility includes, but

is not limited to, a truck or individual

storage tank.

(c) Defenses. (1) In any case in which

a gasoline refiner, importer, distributor,

carrier, reseller, retailer, wholesale

purchaser-consumer, oxygenate blender,

detergent distributor, carrier, or blender,

is in violation of any of the prohibitions

of § 80.168, pursuant to paragraph (a) or

(b) of this section as applicable, the

regulated party shall be deemed not in

violation if it can demonstrate:

(i) That the violation was not caused

by the regulated party or its employee

or agent (unless otherwise provided in

this paragraph (c));

(ii) That product transfer documents

account for the gasoline, detergent, or

detergent-additized PRC in violation

and indicate that the gasoline, detergent,

or detergent-additized PRC satisfied

relevant requirements when it left the

party’s control; and

(iii) That the party has fulfilled the

requirements of paragraphs (c) (2) or (3)

of this section, as applicable.

(2) Branded refiner. Where a branded

refiner is in violation of any of the

prohibitions of § 80.168 as a result of

violations occurring at a facility

(including, but not limited to, a truck or

individual storage tank) which is

operating under the corporate, trade or

brand name of a refiner or that of any

of its marketing subsidiaries, the refiner

shall be deemed not in violation if it can

demonstrate, in addition to the defense

requirements stated in paragraph (c)(1)

of this section, that the violation was

caused by:

(i) An act in violation of law (other

than these regulations), or an act of

sabotage or vandalism, whether or not
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35375

such acts are violations of law in the

jurisdiction where the violation of the

prohibitions of § 80.168 occurred; or

(ii) The action of any gasoline refiner,

importer, reseller, distributor, oxygenate

blender, detergent manufacturer,

distributor, blender, or retailer or

wholesale purchaser-consumer supplied

by any of these persons, in violation of

a contractual undertaking imposed by

the refiner designed to prevent such

action, and despite the implementation

of an oversight program, including, but

not limited to, periodic review of

product transfer documents by the

refiner to ensure compliance with such

contractual obligation; or

(iii) The action of any gasoline or

detergent carrier, or other gasoline or

detergent distributor not subject to a

contract with the refiner but engaged by

the refiner for transportation of gasoline,

PRC, or detergent, to a gasoline or

detergent distributor, oxygenate blender,

detergent blender, gasoline retailer or

wholesale purchaser consumer, despite

specification or inspection of

procedures or equipment by the refiner

which are reasonably calculated to

prevent such action.

(iv) In this paragraph (c)(2), to show

that the violation ‘‘was caused’’ by any

of the specified actions, the party must

demonstrate by reasonably specific

showings, by direct or circumstantial

evidence, that the violation was caused

or must have been caused by another.

(3) Detergent blender. In any case in

which a detergent blender is liable for

violating any of the prohibitions of

§ 80.168, the detergent blender shall not

be deemed in violation if it can

demonstrate, in addition to the defense

requirements stated in paragraph (c)(1)

of this section, the following:

(i) That it obtained or supplied, as

appropriate, prior to the detergent

blending, accurate written instructions

from the detergent manufacturer or

other party with knowledge of such

instructions, specifying the appropriate

LAC for the detergent, as specified in

§ 80.161(b)(1)(ii), together with any use

restrictions which pertain to this LAC

pursuant to the detergent’s certification;

and

(ii) That it has implemented a quality

assurance program that includes, but is

not limited to, a periodic review of its

supporting product transfer and volume

measurement documents to confirm the

correctness of its product transfer and

volumetric additive reconciliation

documents created for all products it

additized.

(4) Detergent manufacturer.— (i)

Presumptive Liability Affirmative

Defense. Notwithstanding the

provisions of paragraph (c)(1) of this

section, in any case in which a detergent

manufacturer is liable for violating any

of the prohibitions of § 80.168, the

detergent manufacturer shall be deemed

not in violation if it can demonstrate

each of the following:

(A) Product transfer documents which

account for the detergent component of

the product in violation and which

indicate that such detergent satisfied all

relevant requirements when it left the

detergent manufacturer’s control.

(B) Written blending instructions

which, pursuant to § 80.161(c), were

supplied by the detergent manufacturer

to its customer who purchased or

obtained from the manufacturer the

detergent component of the product

determined to be in violation. The

written blending instructions must have

been supplied by the manufacturer prior

to the customer’s use or sale of the

detergent. The instructions must

accurately specify both the appropriate

LAC for the detergent, pursuant to

§ 80.161(b)(1)(ii), plus any use

restrictions which may pertain to this

LAC pursuant to the detergent’s

certification.

(C) If the detergent batch used in the

noncomplying product was produced

less than one year before the

manufacturer was notified by EPA of the

possible violation, then the

manufacturer must provide FTIR test

results for the batch in question.

(1) The FTIR analysis may have been

conducted on the subject detergent

batch at the time it was manufactured,

or may be conducted on a sample of that

batch which the manufacturer retained

for such purpose at the time the batch

was manufactured.

(2) To establish that, when it left the

manufacturer’s control, the detergent

component of the noncomplying

product was in conformity with the

chemical composition and

concentration specifications reported

pursuant to § 80.161(b), the FTIR test

results for the detergent batch used in

the noncomplying product must, in

EPA’s judgment, be consistent with the

FTIR results submitted at the time of

registration pursuant to § 80.162(d).

(D) If the detergent batch used in the

noncomplying product was produced

more than one year prior to the

manufacturer’s notification by EPA of

the possible violation, then the

manufacturer must provide either:

(1) FTIR test results for the batch in

question as specified in the preceding

paragraph (c)(4)(i)(C) of this § 80.169(c);

or

(2) The following materials:

(i) Documentation for the batch in

question, showing that its measured

viscosity, density, and basic nitrogen

content, or any other such physical

parameter(s) which EPA may have

approved for monitoring production

quality control, were within the

acceptable range of production values

specified in the certification pursuant to

§ 80.162(e); and

(ii) If the detergent registration

identifies polymeric component(s) of

the detergent package as the product(s)

of other chemical reactants,

documentation that the reagents used to

synthesize the detergent batch in

question were the same as those

specified in the registration and that

they met the manufacturer’s normal

acceptance criteria reported pursuant to

§ 80.162(b)(1).

(ii) Detergent manufacturer causation

liability. In any case in which a

detergent manufacturer is liable for a

violation of § 80.168, and the

manufacturer establishes an affirmative

defense to such liability pursuant to

§ 80.169(c)(4)(i), the detergent

manufacturer will nonetheless be

deemed liable for the violation of

§ 80.168 if EPA can demonstrate, by

reasonably specific showings by direct

or circumstantial evidence, that the

detergent manufacturer caused the

violation.

(5) Defense against liability where

more than one party may be liable for

VAR violations. In any case in which a

party is presumptively or vicariously

liable for a violation of § 80.170, except

for the VAR record requirements

pursuant to § 80.170(g), such party shall

not be deemed liable if it can establish

the following:

(i) Prior to the violation it had entered

into a written contract with another

potentially liable detergent blender

party (‘‘the assuming party’’), under

which that other party assumed legal

responsibility for fulfilling the VAR

requirement that had been violated;

(ii) The contract included reasonable

oversight provision to ensure that the

assuming party fulfilled its VAR

responsibilities (including, but not

limited to, periodic review of VAR

records) and the oversight provision was

actually implemented by the party

raising the defense;

(iii) The assuming party is fiscally

sound and able to pay its penalty for the

VAR violation; and

(iv) The employees or agents of the

party raising the defense did not cause

the violation.

(6) Defense to liability for gasoline

non-conformity violations caused solely

by the addition of misadditized ethanol

or other PRC to the gasoline. In any case

in which a party is presumptively or

vicariously liable for a gasoline nonconformity violation of § 80.168(a)
35376 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

caused solely by another party’s

addition of misadditized ethanol or

other PRC to the gasoline, the former

party shall not be deemed liable for the

violation, provided that it can establish

that it has fulfilled the defense

requirements of paragraphs (c)(1) (i) and

(ii) of this section.

(7) Detergent tank transitioning

defenses. The commingling of two

detergents in the same detergent storage

tank will not be deemed to violate or

cause violations of any of the provisions

of this subpart, provided the following

conditions are met:

(i) The commingling must occur

during a legitimate detergent

transitioning event, i.e., a shift from the

use of one detergent to another through

the delivery of the new detergent into

the same tank that contains the original

detergent; and

(ii) Any use restrictions applicable to

the new detergent’s certification also

apply to the combined detergents; and

(iii) The commingling event must be

documented, either on the VAR formula

record or on attached supporting

records; and

(iv) Notwithstanding any contrary

provisions in § 80.170, a VAR formula

record must be created for the combined

detergents. The VAR compliance period

must begin no later than the time of the

commingling event. However, at the

blender’s option, the compliance period

may begin earlier, thus including use of

the uncombined original detergent

within the same period, provided that

the 31-day limitation pursuant to

§ 80.170(a)(6) is not exceeded; and

(v) The VAR formula record must also

satisfy the requirements in one of the

following paragraphs (c)(7)(v) (A)

through (C) of this section, whichever

applies to the commingling event. If

neither paragraph (c)(7)(v) (A) nor (B) of

this section initially applies, then the

blender may drain and subsequently

redeliver the original detergent into the

tank in restricted amounts, in order to

meet the conditions of paragraph

(c)(7)(v) (A) or (B) of this section.

Otherwise, the blender must comply

with paragraph (c)(7)(v)(C) of this

section.

(A) If both detergents have the same

LAC, and the original detergent

accounts for no more than 20 percent of

the tank’s total delivered volume after

addition of the new detergent, then the

VAR formula record is required to

identify only the use of the new

detergent.

(B) If the two detergents have different

LACs and the original detergent

accounts for 10 percent or less of the

tank’s total delivered volume after

addition of the new detergent, then the

VAR formula record is required to

identify only the use of the new

detergent, and must attain the LAC of

the new detergent. If the original

detergent’s LAC is greater than that of

the new detergent, then the compliance

period may begin earlier than the date

of the commingling event (pursuant to

paragraph (c)(7)(iv) of this section) only

if the original detergent does not exceed

10 percent of the total detergent used

during the compliance period.

(C) If neither of the preceding

paragraphs (c)(7)(v) (A) or (B) of this

section applies, then the VAR formula

record must identify both of the

commingled detergents, and must use

and attain the higher LAC of the two

detergents. Once the commingled

detergent has been depleted by an

amount equal to the volume of the

original detergent in the tank at the time

the new detergent was added,

subsequent VAR formula records must

identify and use the LAC of only the

new detergent.

(8) Transition from noncertified to

certified detergent. Notwithstanding the

prohibitions in §§ 80.161(a)(3) and

80.168, after June 30, 1997, the addition

to gasoline or PRC of a detergent which

has not been certified pursuant to

§ 80.161 shall not be deemed to violate

or cause violations of provisions of this

subpart, provided that all of the

following conditions are met:

(i) The detergent was received by the

detergent blender prior to July 1, 1997

and is used prior to January 1, 1998.

Documentation which supports these

dates must be maintained for at least

five years and must be available for

EPA’s inspection upon request;

(ii) The detergent is added to gasoline

or PRC only in combination with a

certified detergent and, at any one time,

accounts for no more than 10 percent of

the detergent tank’s delivered volume;

(iii) The total volume of detergent

added to the gasoline or PRC is

sufficient to attain the LAC of the

certified detergent; and

(iv) Use restrictions associated with

the certified detergent are adhered to.

(g) Procedures for curing use

restrictions. In the case of a fuel product

which has been additized with a

detergent under the conditions of a userestricted certification (pursuant to

§ 80.163), the use restriction can be

negated (‘‘cured’’) by application of the

procedures in this paragraph (g). A party

shall not be liable for violations of

§ 80.168(a) or (e) caused solely by the

additization or subsequent use of

gasoline or PRC in violation of such use

restriction, provided that the following

steps and conditions are applied before

EPA has identified the nonconformity

and prior to the sale or transfer of

nonconforming product to the ultimate

consumer:

(i) Additional detergent must be

added in sufficient quantity to provide

effective deposit control, taking into

account both the amount of detergent

previously added and the final

anticipated volume and composition of

the subject fuel product.

(ii) The additional detergent may be

either the original detergent or a

different detergent, so long as the

additional detergent has been separately

certified both for use with the subject

fuel product and for use with the type

of fuel product associated with the

restriction which the party wishes to

negate by the curing procedure.

Detergents which have not been

separately certified for both types of fuel

products are not eligible to be used for

this curing procedure.

(iii) If a fuel product has been

detergent additized under the

conditions of a use-restricted

certification which would preclude the

addition of an oxygenate or other PRC,

then such oxygenate or other PRC may

nevertheless be added to that fuel

product under this curing procedure,

provided that additional eligible

detergent is added, in an amount which

equals or exceeds the number of gallons

(DA) derived from the following

equation:

Additional Detergent

Volume=DA=Vp(LAC2–LAC1) +

V(1¥p)LAC2

Where:

V=Final volume of fuel product (in

gallons)

p=Fraction of final fuel product

composed of the original

(uncombined) fuel product

LAC2=Detergent’s LAC certified for the

final combined fuel product (in

gallons of detergent per 1,000

gallons of fuel product)

LAC1=Detergent’s LAC certified for the

original (uncombined) fuel product

(in gallons of detergent per 1,000

gallons of fuel product)

(iv) In other instances in which

gasoline or PRC has been additized in

violation of a detergent use restriction,

and no additional fuel components are

to be added, such use restriction can be

cured by the addition of eligible

detergent in an amount which equals or

exceeds the number of gallons (DA)

derived from the following equation,

which is a simplified version of the

previous equation:

Additional Detergent

Volume=DA=V(LAC2–LAC1)

Where:
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35377

V=Volume of fuel product (in gallons) to

be cured of the use restriction

LAC2=Detergent’s LAC certified for the

fuel product without the use

restriction (in gallons of detergent

per 1,000 gallons of fuel product)

LAC1=Detergent’s LAC certified for the

fuel product with the use restriction

to be cured (in gallons of detergent

per 1,000 gallons of fuel product)

(v) In all such instances, a curing VAR

must be created and maintained, which

documents the use of the appropriate

equation as specified above, and

otherwise complies with the

requirements of § 80.170(f)(6).

§ 80.170 Volumetric additive reconciliation

(VAR), equipment calibration, and

recordkeeping requirements.

This section contains requirements for

automated detergent blending facilities

and hand-blending detergent facilities.

All gasoline and all PRC intended for

use in gasoline must be additized unless

otherwise noted in supporting VAR

records, and must be accounted for in

VAR records. The VAR reconciliation

standard is attained under this section

when the actual concentration of

detergent used per VAR formula record

equals or exceeds the applicable LAC

certified for that detergent pursuant to

§ 80.161(b)(3)(ix) or, if appropriate,

§ 80.161(d). If a given detergent package

has been certified under more than one

certification option pursuant to

§ 80.163, then a separate VAR formula

record must be created for gasoline or

PRC additized on the basis of each

certification and its respective LAC. In

such cases, the amount of the detergent

used under different certification

options must be accurately and

separately measured, either through the

use of a separate storage tank, a separate

meter, or some other measurement

system that is able to accurately

distinguish its use. Recorded volumes of

gasoline, detergent, and PRC must be

expressed to the nearest gallon (or

smaller units), except that detergent

volumes of five gallons or less must be

expressed to the nearest tenth of a

gallon (or smaller units). However, if the

blender’s equipment cannot accurately

measure to the nearest tenth of a gallon,

then such volumes must be rounded

downward to the next lower gallon. PRC

included in the reconciliation must be

identified. Each VAR formula record

must also contain the following

information:

(a) Automated blending facilities. In

the case of an automated detergent

blending facility, for each VAR period,

for each detergent storage system and

each detergent in that storage system,

the following must be recorded:

(1) The manufacturer and commercial

identifying name of the detergent

additive package being reconciled, the

LAC, and any use restriction applicable

to the LAC. The LAC must be expressed

in terms of gallons of detergent per

thousand gallons of gasoline or PRC,

and expressed to four digits. If the

detergent storage system which is the

subject of the VAR formula record is a

proprietary system under the control of

a customer, this fact must be indicated

on the record.

(2) The total volume of detergent

blended into gasoline and PRC, in

accordance with one of the following

paragraphs (a)(2)(i) or (ii) of this section,

as applicable.

(i) For a facility which uses in-line

meters to measure detergent usage, the

total volume of detergent measured,

together with supporting data which

includes one of the following: the

beginning and ending meter readings for

each meter being measured, the metered

batch volume measurements for each

meter being measured, or other

comparable metered measurements. The

supporting data may be supplied on the

VAR formula record or in the form of

computer printouts or other comparable

VAR supporting documentation.

(ii) For a facility which uses a gauge

to measure the inventory of the

detergent storage tank, the total volume

of detergent shall be calculated from the

following equation:

Detergent Volume=(A)–(B)+(C)–(D)

Where:

A=Initial detergent inventory of the tank

B=Final detergent inventory of the tank

C=Sum of any additions to detergent

inventory

D=Sum of any withdrawals from

detergent inventory for purposes

other than the additization of

gasoline or PRC.

The value of each variable in this

equation must be separately recorded on

the VAR formula record. In addition, a

list of each detergent addition included

in variable C and a list of each detergent

withdrawal included in variable D must

be provided, either on the formula

record or as VAR supporting

documentation.

(3) The total volume of gasoline plus

PRC to which detergent has been added,

together with supporting data which

includes one of the following: the

beginning and ending meter

measurements for each meter being

measured, the metered batch volume

measurements for each meter being

measured, or other comparable metered

measurements. The supporting data may

be supplied on the VAR formula record

or in the form of computer printouts or

other comparable VAR supporting

documentation. If gasoline has

intentionally been overadditized in

anticipation of the later addition of

unadditized PRC, then the total volume

of gasoline plus PRC recorded must

include the expected amount of

unadditized PRC to be added later. In

addition, the amount of gasoline which

was overadditized for this purpose must

be specified.

(4) The actual detergent

concentration, calculated as the total

volume of detergent added (pursuant to

paragraph (a)(2) of this section), divided

by the total volume of gasoline plus PRC

(pursuant to paragraph (a)(3) of this

section). The concentration must be

calculated and recorded to four digits.

(5) A list of each detergent

concentration rate initially set for the

detergent that is the subject of the VAR

record, together with the date and

description of each adjustment to any

initially set concentration. The

concentration adjustment information

may be supplied on the VAR formula

record or in the form of computer

printouts or other comparable VAR

supporting documentation. No

concentration setting is permitted below

the applicable certified LAC, except as

may be modified pursuant to § 80.161(d)

or as described in paragraph (a)(7) of

this section.

(6) The dates of the VAR period,

which shall be no longer than thirty-one

days. If the VAR period is

contemporaneous with a calendar

month, then specifying the month will

fulfill this requirement; if not, then the

beginning and ending dates and times of

the VAR period must be listed. The

times may be supplied on the VAR

formula record or in supporting

documentation. Any adjustment to any

detergent concentration rate more than

10 percent over the concentration rate

initially set in the VAR period shall

terminate that VAR period and initiate

a new VAR period, except as provided

in paragraph (a)(7) of this section.

(7) The concentration setting for a

detergent injector may be set below the

applicable LAC, or it may be adjusted

more than 10 percent above the

concentration initially set in the VAR

period without terminating that VAR

period, provided that:

(i) The purpose of the change is to

correct a batch misadditization prior to

the end of the VAR period and prior to

the transfer of the batch to another

party, or to correct an equipment

malfunction; and

(ii) The concentration is immediately

returned after the correction to a

concentration that fulfills the
35378 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

requirements of paragraphs (a) (5) and

(6) of this section; and

(iii) The blender creates and

maintains documentation establishing

the date and adjustments of the

correction; and

(iv) If the correction is initiated only

to rectify an equipment malfunction,

and the amount of detergent used in this

procedure is not added to gasoline

within the compliance period, then this

amount is subtracted from the detergent

volume listed on the VAR formula

record.

(8) If unadditized gasoline has been

transferred from the facility, other than

bulk transfers from refineries or

pipelines to non-retail outlets or nonWPC facilities, the total amount of such

gasoline must be specified.

(b) Non-automated facilities. In the

case of a facility in which hand

blending or any other non-automated

method is used to blend detergent, for

each detergent and for each batch of

gasoline and each batch of PRC to which

the detergent is being added, the

following shall be recorded:

(1) The manufacturer and commercial

identifying name of the detergent

additive package being reconciled, the

LAC, and any use restriction applicable

to the LAC. The LAC must be expressed

in terms of gallons of detergent per

thousand gallons of gasoline or PRC,

and expressed to four digits.

(2) The date of the additization that is

the subject of the VAR formula record.

(3) The volume of added detergent.

(4) The volume of the gasoline and/or

PRC to which the detergent has been

added. If gasoline has intentionally been

overadditized in anticipation of the later

addition of unadditized PRC, then the

total volume of gasoline plus PRC

recorded must include the expected

amount of unadditized PRC to be added

later. In addition, the amount of

gasoline which was overadditized for

this purpose must be specified.

(5) The brand (if known), grade, and

leaded/unleaded status of gasoline, and/

or the type of PRC.

(6) The actual detergent

concentration, calculated as the volume

of added detergent (pursuant to

paragraph (b)(3) of this section), divided

by the volume of gasoline and/or PRC

(pursuant to paragraph (b)(4) of this

section). The concentration must be

calculated and recorded to four digits.

(c) Every VAR formula record created

pursuant to paragraphs (a) and (b) of

this section shall contain the following:

(1) The signature of the creator of the

VAR record;

(2) The date of the creation of the

VAR record; and

(3) A certification of correctness by

the creator of the VAR record.

(d) Electronically-generated VAR

formula and supporting records.

(1) Electronically-generated records

are acceptable for VAR formula records

and supporting documentation

(including PTDs), provided that they are

complete, accessible, and easily

readable. VAR formula records must

also be stored with access and audit

security, which must restrict to a

limited number of specified people

those who have the ability to alter or

delete the records. In addition, parties

maintaining records electronically must

make available to EPA the hardware and

software necessary to review the

records.

(2) Electronically-generated VAR

formula records may use an electronic

user identification code to satisfy the

signature requirements of paragraph

(c)(1) of this section, provided that:

(i) The use of the ID is limited to the

record creator; and

(ii) A paper record is maintained,

which is signed and dated by the VAR

formula record creator, acknowledging

that the use of that particular user ID on

a VAR formula record is equivalent to

his/her signature on the document.

(e) Automated detergent blenders

must calibrate their detergent

equipment once in each calendar half

year, with the acceptable calibrations

being no less than one hundred twenty

days apart. Equipment recalibration is

also required each time the detergent

package is changed, unless written

documentation indicates that the new

detergent package has the same

viscosity as the previous detergent

package. Detergent package change

calibrations may be used to satisfy the

semiannual requirement provided that

the calibrations occur in the appropriate

half calendar year and are no less than

one hundred twenty days apart.

(f) The following VAR supporting

documentation must also be created and

maintained:

(1) For all automated detergent

blending facilities, documentation

reflecting performance of the

calibrations required by paragraph (e) of

this section, and any associated

adjustments of the automated detergent

equipment;

(2) For all hand-blending facilities

which are terminals, a record

specifying, for each VAR period, the

total volume in gallons of transfers from

the facility of unadditized base gasoline;

(3) For all detergent blending

facilities, product transfer documents

for all gasoline, detergent and detergentadditized PRC transferred into or out of

the facility; in addition, bills of lading,

transfer, or sale for all unadditized PRC

transferred into the facility;

(4) For all automated detergent

blending facilities, documentation

establishing the brands (if known) and

grades of the gasoline which is the

subject of the VAR formula record; and

(5) For all hand blending detergent

blenders, the documentation, if in the

party’s possession, supporting the

volumes of gasoline, PRC, and detergent

reported on the VAR formula record.

(6) For all detergent blending

facilities, documentation establishing

the curing of a batch or amount of

misadditized gasoline or PRC, or the

curing of a use restriction on the

additized gasoline or PRC, and

providing at least the following

information: the date of the curing

procedure; the problem that was

corrected; the amount, name, and LAC

of the original detergent used; the

amount, name, and LAC of the added

curing detergent; and the actual

detergent concentration attained in, and

the volume of, the total cured product.

(g) Document retention and

availability. All detergent blenders shall

retain the documents required under

this section for a period of five years

from the date the VAR formula records

and supporting documentation are

created, and shall deliver them upon

request to the EPA Administrator or the

Administrator’s authorized

representative.

(1) Except as provided in paragraph

(g)(3) of this section, automated

detergent blender facilities and handblender facilities which are terminals,

which physically blend detergent into

gasoline, must make immediately

available to EPA, upon request, the

preceding twelve months of VAR

formula records plus the preceding two

months of VAR supporting

documentation.

(2) Except as provided in paragraph

(g)(3) of this section, other handblending detergent facilities which

physically blend detergent into gasoline

must make immediately available to

EPA, upon request, the preceding two

months of VAR formula records and

VAR supporting documentation.

(3) Facilities which have centrally

maintained records at other locations, or

have customers who maintain their own

records at other locations for their

proprietary detergent systems, and

which can document this fact to the

Agency, may have until the start of the

next business day after the EPA request

to supply VAR supporting

documentation, or longer if approved by

the Agency.

(4) In this paragraph (g) of this

section, the term immediately available
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35379

means that the records must be

provided, electronically or otherwise,

within approximately one hour of EPA’s

request, or within a longer time frame as

approved by EPA.

§ 80.171 Product transfer documents

(PTDs).

(a) Contents. For each occasion when

any gasoline refiner, importer, reseller,

distributor, carrier, retailer, wholesale

purchaser-consumer, oxygenate blender,

detergent manufacturer, distributor,

carrier, or blender, transfers custody or

title to any gasoline, detergent, or

detergent-additized PRC other than

when detergent-additized gasoline is

sold or dispensed at a retail outlet or

wholesale purchaser-consumer facility

to the ultimate consumer, the transferor

shall provide to the transferee, and the

transferee shall acquire from the

transferor, documents which accurately

include the following information:

(1) The name and address of the

transferee and transferor; the address

requirement may be fulfilled, in the

alternative, through separate

documentation which establishes said

addresses and is maintained by the

parties and made available to EPA for

the same length of time as required for

the PTDs, provided that the normal

business procedure of these parties is

not to identify addresses on PTDs.

(2) The date of the transfer.

(3) The volume of product transferred.

(4)(i) The identity of the product

being transferred (i.e., its identity as

base gasoline, detergent, detergentadditized gasoline, or specified

detergent-additized oxygenate or

detergent-additized gasoline blending

stock that comprises a detergentadditized PRC). PTDs for detergentadditized gasoline or PRC are not

required to identify the particular

detergent used to additize the product.

(ii) If the product being transferred

consists of two or more different types

of product subject to this regulation, i.e.,

base gasoline, detergent-additized

gasoline, or specified detergentadditized PRC, component, then the

PTD for the commingled product must

identify each such type of component

contained in the commingled product.

(5) If the product being transferred is

gasoline to which an oxygenate or a PRC

has been added, the PTD for the

gasoline must identify the oxygenate or

PRC. The PTDs for commingled

additized gasolines must identify all the

oxygenates and PRCs added to either

component.

(6) If the product being transferred is

base gasoline, then in addition to the

base gasoline identification, the

following warning must be stated on the

PTD: ‘‘Not for sale to the ultimate

consumer’’. If, pursuant to § 80.173(a),

the product being transferred is exempt

base gasoline to be used for research,

development, or test purposes only, the

following warning must also be stated

on the PTD: ‘‘For use in research,

development, and test programs only’’.

(7) The name of the detergent additive

as reported in its registration must be

used to identify the detergent package

on its PTD.

(8) If the product being transferred is

leaded gasoline, then the PTD must

disclose that the product contains lead

and/or phosphorous, as applicable.

(9) If the product being transferred is

gasoline or PRC that has been additized

with detergent under a PADD-specific or

CARB-based certification, or under a

certification option which creates an

oxygenate or PRC use restriction, then

the PTD for the additized product must

identify the applicable use restriction.

The PTD for commingled additized

gasolines or PRCs containing such

restrictions must indicate the applicable

restriction(s) from each component.

(10) If the product being transferred is

detergent-additized gasoline or PRC that

has been overadditized in anticipation

of the later (or earlier) addition of PRC,

then the PTD must include a statement

that the product has been overadditized

to account for a specified volume in

gallons, or a specified percentage of the

product’s total volume, of additional,

specified PRC.

(11) If a detergent package has been

certified under only one certification

option, and that option places a use

restriction on the respective LAC, then

the PTD must identify the detergent as

use-restricted; the PTD for a detergent

package certified with more than one

LAC must identify that the detergent has

special use options available.

(12) Base gasoline designated for fuelspecific certification.

(i) The PTD for segregated base

gasoline intended for additization with

a specific fuel-specific detergent

pursuant to § 80.163(c) must indicate

that it is for use with the designated,

fuel-specific detergent.

(ii) A PTD for base gasoline may not

indicate that the product is for use with

a designated, fuel-specific detergent,

unless the entire quantity of base

gasoline is from the segregated fuel

supply specified in the detergent’s

certification and the gasoline contains

only those oxygenates or PRCs, if any,

specified and approved in the

detergent’s certification.

(iii) If, pursuant to § 80.163(c)(3), the

fuel-specific certification for the

segregated pool of gasoline has

established that no detergent additives

are necessary for such gasoline to

comply with this subpart, then the PTD

must identify this gasoline as detergentequivalent gasoline.

(b) Use of product codes and other

non-regulatory language. (1) Product

codes and other non-regulatory language

may not be used as a substitute for the

specified PTD warning language

specified in paragraph (a)(6) of this

section for base gasoline, except that:

(i) The specified warning language

may be omitted for bulk transfers of base

gasoline from a refinery to a pipeline if

there is a prior written agreement

between the parties specifying that all

such gasoline is unadditized and will

not be transferred to the ultimate

consumer;

(ii) Product codes may be used as a

substitute for the specified warning

language provided that the PTD is an

electronic data interchange (EDI)

document being used solely for the

transfer of title to the base gasoline, and

provided that the product codes

otherwise comply with the requirements

of this section.

(2) Product codes and other nonregulatory language may not be used in

place of the PTD language specified in

paragraph (a)(11) of this section

regarding detergent package use

restrictions.

(3) Product codes and other language

not specified in this section may

otherwise be used to comply with PTD

information requirements, provided that

they are clear, accurate, and not

misleading.

(4) If product codes are used, they

must be standardized throughout the

distribution system in which they are

used, and downstream parties must be

informed of their full meaning.

(c) PTD exemption for small transfers

of additized gasoline. Transfers of

additized gasoline are exempt from the

PTD requirements of this section

provided all the following conditions

are satisfied:

(1) The product is being transferred by

a distributor who is not the product’s

detergent blender; and

(2) The recipient is a wholesale

purchaser-consumer (WPC) or other

ultimate consumer of gasoline, for its

own use only or for that of its agents or

employees; and

(3) The volume of additized gasoline

being transferred is no greater than 550

gallons.

(d) Recordkeeping Period. Any person

creating, providing or acquiring product

transfer documentation for gasoline,

detergent, or detergent-additized PRC

shall retain the documents required by

this section for a period of five years

from the date the product transfer
35380 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations

documentation was created, received or

transferred, as applicable, and shall

deliver such documents to EPA upon

request. WPCs are not required to retain

PTDs of additized gasoline received by

them.

§ 80.172 Penalties.

(a) General. Any person who violates

any prohibition or affirmative

requirement of § 80.168 shall be liable to

the United States for a civil penalty of

not more than the sum of $25,000 for

every day of such violation and the

amount of economic benefit or savings

resulting from the violation.

(b) Gasoline non-conformity. Any

violation of § 80.168(a) shall constitute

a separate day of violation for each and

every day the gasoline in violation

remains at any place in the gasoline

distribution system, beginning on the

day that the gasoline is in violation of

the respective prohibition and ending

on the last day that such gasoline is

offered for sale or is dispensed to any

ultimate consumer.

(c) Detergent non-conformity. Any

violation of § 80.168(d) shall constitute

a separate day of violation for each and

every day the detergent in violation

remains at any place in the gasoline or

detergent distribution system, beginning

on the day that the detergent is in

violation of the prohibition and ending

on the last day that detergent-additized

gasoline, containing the subject

detergent as a component thereof, is

offered for sale or is dispensed to any

ultimate consumer.

(d) Post-refinery component nonconformity. Any violation of § 80.168(e)

shall constitute a separate day of

violation for each and every day the

PRC in violation remains at any place in

the PRC or gasoline distribution system,

beginning on the day that the PRC is in

violation of the respective prohibition

and ending on the last day that

detergent-additized gasoline containing

the PRC is offered for sale or is

dispensed to any ultimate consumer.

(e) Product transfer document nonconformity. Any violation of § 80.168(c)

shall constitute a separate day of

violation for every day the PTD is not

fully in compliance. This is to begin on

the day that the PTD is created or

should have been created and to end at

the later of the following dates:

(1) The day that the document is

corrected and comes into compliance; or

(2) The day that gasoline not

additized in conformity with interim

detergent program requirements, as a

result of the PTD non-conformity, is

offered for sale or is dispensed to the

ultimate consumer.

(f) Volumetric additive reconciliation

recordkeeping non-conformity. Any

VAR recordkeeping violation of

§ 80.168(b) shall constitute a separate

day of violation for every day that VAR

recordkeeping is not fully in

compliance. Each element of the VAR

record keeping program that is not in

compliance shall constitute a separate

violation for purposes of this section.

(g) Volumetric additive reconciliation

compliance standard non-conformity.

Any violation of the VAR compliance

standard established in § 80.170 shall

constitute a separate day of violation for

each and every day of the VAR

compliance period in which the

standard was violated.

(h) Volumetric additive reconciliation

equipment calibration non-conformity.

Any VAR equipment calibration

violation of § 80.168(b) shall constitute

a separate day of violation for every day

a VAR equipment calibration

requirement is not met.

§ 80.173 Exemptions.

(a) Research, development, and

testing exemptions. Any detergent that

is either in a research, development, or

test status, or is sold to petroleum,

automobile, engine, or component

manufacturers for research,

development, or test purposes, or any

gasoline to be used by, or under the

control of, petroleum, additive,

automobile, engine, or component

manufacturers for research,

development, or test purposes, is

exempted from the provisions of the

detergent certification program,

provided that:

(1) The detergent (or fuel containing

the detergent), or the gasoline, is kept

segregated from non-exempt product,

and the party possessing the product

maintains documentation identifying

the product as research, development,

or testing detergent or fuel, as

applicable, and stating that it is to be

used only for research, development, or

testing purposes; and

(2) The detergent (or fuel containing

the detergent), or the gasoline, is not

sold, dispensed, or transferred, or

offered for sale, dispensing, or transfer,

from a retail outlet. It shall also not be

sold, dispensed, or transferred or offered

for sale, dispensing, or transfer from a

wholesale purchaser-consumer facility,

unless such facility is associated with

detergent, fuel, automotive, or engine

research, development or testing; and

(3) The party using the product for

research, development, or testing

purposes, or the party sponsoring this

usage, notifies the EPA, on at least an

annual basis and prior to the use of the

product, of the purpose(s) of the

program(s) in which the product will be

used and the anticipated volume of the

product to be used. The information

must be submitted to the address or fax

number specified in § 80.174(c).

(b) Racing fuel and aviation fuel

exemptions. Any fuel that is refined,

sold, dispensed, transferred, or offered

for sale, dispensing, or transfer as

automotive racing fuel or as aircraft

engine fuel, is exempted from the

provisions of this subpart, provided

that:

(1) The fuel is kept segregated from

non-exempt fuel, and the party

possessing the fuel for the purposes of

refining, selling, dispensing,

transferring, or offering for sale,

dispensing, or transfer as automotive

racing fuel or as aircraft engine fuel,

maintains documentation identifying

the product as racing fuel, restricted for

non-highway use in racing motor

vehicles, or as aviation fuel, restricted

for use in aircraft, as applicable;

(2) Each pump stand at a regulated

party’s facility, from which such fuel is

dispensed, is labeled with the

applicable fuel identification and use

restrictions described in paragraph

(b)(1) of this section; and

(3) The fuel is not sold, dispensed,

transferred, or offered for sale,

dispensing, or transfer for highway use

in a motor vehicle.

(c) California gasoline exemptions. (1)

Gasoline or PRC which is additized in

the state of California is exempt from

the VAR provisions in §§ 80.168 (b) and

(e) and 80.170, provided that:

(i) For all such gasoline or PRC,

whether intended for sale within or

outside of California, records of the type

required for California gasoline

(specified in title 13, California Code of

Regulations, section 2257) are

maintained; and

(ii) Such records, with the exception

of daily additization records, are

maintained for a period of five years

from the date they were created and are

delivered to EPA upon request.

(2) Gasoline or PRC that is transferred

and/or sold solely within the state of

California is exempt from the PTD

provisions of the detergent certification

program, specified in §§ 80.168(c) and

80.171.

(3) Nothing in this paragraph (c)

exempts such gasoline or PRC from the

requirements of § 80.168 (a) and (e), as

applicable. EPA will base its

determination of California gasoline’s

conformity with the detergent’s LAC on

the additization records required by

CARB, or records of the same type.
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules and Regulations 35381

§ 80.174 Addresses.

(a) The detergent additive sample

required under § 80.161(b)(2) shall be

sent to: Manager, Fuels and Technical

Analysis Group, Testing Services

Division, U.S. Environmental Protection

Agency, National Vehicle and Fuel

Emissions Laboratory, 2565 Plymouth

Road, Ann Arbor, Michigan 48105.

(b) Other detergent registration and

certification data, and certain other

information which may be specified in

this subpart, shall be sent to: Detergent

Additive Certification, Director, Fuels

and Energy Division, U.S.

Environmental Protection Agency

(6406J), 401 M Street, SW., Washington,

DC 20460.

(c) Notifications to EPA regarding

program exemptions, detergent dilution

and commingling, and certain other

information which may be specified in

this subpart, shall be sent to: Detergent

Enforcement Program, U.S.

Environmental Protection Agency, Suite

214, 12345 West Alameda Parkway,

Denver, CO 80228, (FAX 303–969–

6490).

[FR Doc. 96–16666 Filed 7–3–96; 8:45 am]

BILLING CODE 6560–50–P