67098 Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations

Authority: 42 U.S.C. 7401–7671q.

Subpart D—Arizona

2. Subpart D is amended by adding an

undesignated center heading and

§ 62.640 to read as follows:

Emissions From Small Existing

Municipal Waste Combustion Units

§ 62.640 Identification of plan—negative

declaration.

Letter from the Arizona Department of

Environmental Quality, submitted on

March 15, 2001, certifying that there are

no small municipal waste combustion

units subject to part 60, subpart BBBB,

of this chapter.

Subpart F—California

3. Subpart F is amended by adding an

undesignated center heading and

§ 62.1125 to read as follows:

Emissions From Small Existing

Municipal Waste Combustion Units

§ 62.1125 Identification of plan—negative

declaration.

Letter from the California Air

Resources Board, submitted on July 20,

2001, certifying that there are no small

municipal waste combustion units

subject to part 60, subpart BBBB, of this

chapter.

4. Part 62 is amended by adding

Subpart M to read as follows:

Subpart M—Hawaii

Emissions From Small Existing

Municipal Waste Combustion Units

§ 62.2850 Identification of plan—negative

declaration.

Letter from the State of Hawaii

Department of Health, submitted on

March 13, 2001, certifying that there are

no small municipal waste combustion

units subject to part 60, subpart BBBB,

of this chapter.

Subpart DD—Nevada

5. Subpart DD is amended by adding

an undesignated center heading and

§ 62.7125 to read as follows:

Emissions From Small Existing

Municipal Waste Combustion Units

§ 62.7125 Identification of plan—negative

declaration.

Letter from the Nevada Division of

Environmental Protection, submitted on

March 26, 1997, certifying that there are

no existing municipal waste combustion

units subject to part 60, subpart BBBB,

of this chapter.

[FR Doc. 01–31943 Filed 12–27–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 80

[FRL–7122–5]

RIN 2060–AG76

Regulation of Fuels and Fuel

Additives: Modifications to Standards

and Requirements for Reformulated

and Conventional Gasoline

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: With today’s action EPA is

finalizing certain proposed

modifications to the reformulated

gasoline (RFG) and conventional

gasoline regulations. Through the 1990

amendments to the Clean Air Act

(CAA), Congress directed EPA to

publish rules requiring that gasoline

sold in certain areas be reformulated to

reduce vehicle emissions of toxic and

ozone-forming compounds. Congress

also directed EPA to establish rules

setting anti-dumping standards for nonreformulated, or ‘‘conventional’’

gasoline. EPA published rules for the

certification and enforcement of RFG

and provisions for conventional

gasoline on February 16, 1994 at 59 FR

7716.

Based on experience gained since the

promulgation of these regulations, on

July 11, 1997, we proposed a variety of

revisions to the regulations relating to

emissions standards, emissions models,

compliance-related requirements and

enforcement provisions. In a final rule

published on December 31, 1997, we

took final action on several of the

proposed revisions. Today’s action

finalizes certain other of the proposed

revisions.

The revisions in this final rule involve

both RFG and conventional gasoline.

This rule finalizes procedures for

combining finished gasoline with other

products to produce new blends of

gasoline. These procedures allow

refiners to use conventional gasoline to

produce RFG, and to reclassify RFG

with regard to VOC classification,

activities which were previously

prohibited under the regulations. This

rule also identifies procedures and

requirements regarding the change of

service of gasoline storage tanks. The

emissions benefits achieved from the

RFG and conventional gasoline

programs will not be reduced as a result

of this final rule.

On May 17, 2001 the National Energy

Policy Development Group (NEPD)

recommended that EPA ‘‘study

opportunities to maintain or improve

the environmental benefits of state and

local ‘boutique’ clean fuel programs

while exploring ways to increase the

flexibility of the fuels distribution

infrastructure, improve fungibility, and

provide added market liquidity.’’ In

response to the NEPD charge, EPA

included in its boutique fuel report a

series of regulatory actions, including

today’s action regarding the use of

finished gasoline to produce new blends

of gasoline, intended to better facilitate

seasonal gasoline transition and address

gasoline supply and fungibility

concerns during periods of low gasoline

inventories. We are able to finalize this

action now, in advance of other

intended EPA actions, because it was

previously proposed by EPA. We expect

the flexibilities provided via today’s

action will promote improved

availability of fuel meeting the range of

environmental and market needs.

Action on the other boutique fuel

regulatory recommendations targeted at

facilitating the transition from winter to

summer fuel should be completed in

advance of next year’s ozone season.

DATES: This rule is effective on

December 28, 2001.

ADDRESSES: Materials relevant to this

FRM are contained in Public Docket No.

A–97–03, Waterside Mall (Room M–

1500), Environmental Protection

Agency, Air Docket Section, 401 M

Street, S.W., Washington, D.C. 20460.

Materials relevant to the final rule

establishing standards for RFG and antidumping standards for conventional

gasoline are contained in Public

Dockets—A–92–01 and A–92–12, and

are incorporated by reference.

FOR FURTHER INFORMATION CONTACT:

Marilyn Bennett, Transportation and

Regional Programs Division, U.S. EPA,

Ariel Rios Building, 1200 Pennsylvania

Avenue, N.W. (6406J), Washington, D.C.

20460; telephone: (202) 564–8989; FAX

(202) 565–2085; e-mail

mbennett@epa.gov.

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially affected by this

action include those involved with the

production and importation of gasoline

motor fuel.

The table below gives some examples

of entities that may have to comply with

the regulations. However, since these

are only examples, you should carefully

examine these and other existing

regulations in 40 CFR part 80. If you

have any questions, please call the

person listed in the FOR FURTHER

INFORMATION CONTACT section above.

Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations 67099

1The regulations at 40 CFR 80.2(d) define

previously certified gasoline as ‘‘gasoline or RBOB

that previously has been included in a batch for

purposes of complying with the standards for

reformulated gasoline, conventional gasoline or

gasoline sulfur, as appropriate.’’

Category NAICSs codes a SIC codes b Examples of potentially regulated parties

Industry .................................................................................. 324110 2911 Petroleum refiners.

Industry .................................................................................. 422710 5171 Gasoline Marketers and Distributors.

422720 5172

a North American Industry Classification System (NAICS).

bStandard Industrial Classification (SIC) system code.

Access to Rulemaking Documents

Through the Internet

Today’s notice is available

electronically on the day of publication

from the Office of the Federal Register

Internet Web site listed below.

Electronic copies of the preamble,

regulatory language and other

documents associated with today’s final

rule are available from the EPA Office

of Transportation and Air Quality

(OTAQ) Web site listed below shortly

after the fuel is signed by the

Administrator. This service is free of

charge, except any cost that you already

incur for connecting to the Internet.

EPA Federal Register Web Site: http:/

/www.epa.gov/docs/fedrgstr/epa-air/

(Either select desired date or use Search

feature)

OTAQ Web Site: http://www.epa.gov/

otaq/

(Look in ‘‘What’s New’’ or under the specific

rulemaking topic.)

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.

Outline of This Preamble

I. Previously Certified Gasoline

II. Changing Service of Gasoline Storage

Tanks

III. Public Participation

IV. Administrative Requirements

V. Statutory Provisions and Legal Authority

I. Previously Certified Gasoline

Under 40 CFR 80.65(i) and

80.101(e)(1), refiners are required to

exclude from a refinery’s compliance

calculations gasoline that was not

produced at that refinery, and gasoline

that was produced at that refinery but

was included in the refinery’s

compliance calculations as part of

another gasoline batch. Such gasoline is

called ‘‘previously certified gasoline,’’

or ‘‘PCG.’’ PCG is required to be

excluded from compliance calculations

to avoid double counting of the

gasoline, since PCG is gasoline that was

previously accounted for in the refiner’s

or another refiner’s compliance

calculations.1

Where PCG is combined with

blendstock to produce a new blend of

gasoline, the blendstock must be

included in the refinery’s compliance

calculations, and the PCG must be

excluded. The regulations at

§ 80.101(g)(3) provide a method for

calculating the emissions performance

of a blendstock which may be used for

purposes of including in compliance

calculations a blendstock that is

blended with PCG. However, this

method only applies to previously

certified conventional gasoline that is

combined with blendstock to produce a

new blend of conventional gasoline. The

regulations prior to today’s rule did not

include provisions for using previously

certified conventional gasoline to

produce RFG, or previously certified

RFG to produce new blends of gasoline.

In the Notice of Proposed Rulemaking

(NPRM) issued July 11, 1997, we

proposed procedures for excluding PCG

from compliance calculations which

allow previously certified conventional

gasoline or previously certified RFG to

be used to produce new blends of

gasoline, including RFG. Today’s rule

finalizes these PCG procedures. The

provisions at § 80.101(g)(3) for

calculating the emissions performance

of a blendstock continue to be available.

Under certain circumstances, for

example, where a refiner includes

oxygenate blended at a downstream

terminal in the refinery’s anti-dumping

compliance calculations, the provisions

at § 80.101(g)(3) may provide the most

appropriate method for excluding PCG

from compliance calculations. See 62

FR 37364 (July 11, 1997), and 62 FR

68196 (December 31, 1997), for further

discussion of the provisions at

§ 80.101(g)(3).

Where the PCG procedures finalized

in today’s rule are followed, refiners

may reclassify conventional gasoline as

RFG (or reformulated gasoline

blendstock for oxygenate blending—

‘‘RBOB’’), or reclassify RFG with regard

to VOC control. Prior to today’s final

rule, the regulations allowed previously

certified RFG to be reclassified as

conventional gasoline for use in nonRFG areas; however, they prohibited

refiners from combining RFG that is

used in RFG areas with conventional

gasoline, or combining RFG of different

VOC designations. See § 80.78. These

prohibitions had the effect of

prohibiting refiners from upgrading

conventional gasoline to RFG, or

reclassifying RFG with regard to its VOC

control category.

At the time the RFG regulations were

promulgated, EPA was concerned that

the overall quality of the various

gasoline pools may be degraded if

refiners were able to reclassify

conventional gasoline as RFG or

reclassify one category of RFG as

another category of RFG. For example,

a refiner could produce very ‘‘clean’’

conventional gasoline and include it in

its anti-dumping compliance

calculations, and then reclassify it as

RFG with little or no additional

blending, thus enabling the refiner to

meet the anti-dumping standards using

gasoline that, in fact, is used as RFG.

This type of activity could result in a

degradation of the quality of the

conventional gasoline pool, with

associated adverse environmental

effects. However, the PCG procedures

finalized in today’s rule include

requirements and limitations which

allow conventional gasoline to be

reclassified as RFG, and RFG to be

reclassified with regard to VOC control,

without the potential for adverse

environmental effects. As a result,

today’s final rule revises the

prohibitions in § 80.78 to allow parties

to combine RFG (or RBOB) with

conventional gasoline or blendstock if

the PCG procedures are followed.

Under the PCG procedures finalized

today, reclassifications using PCG may

occur only at refineries, including

terminal blending facilities registered as

refineries. Refiners are required to

determine the volume and properties of

each batch of PCG used in the refinery

operation along with the designation of

the gasoline (RFG, RBOB or

conventional), and, for RFG or RBOB,

the designation relating to VOC control.

The volume and properties of each

batch of PCG must be reported to EPA

as a negative batch under the same

designation as the gasoline as it was

received or produced by the refinery.

The PCG then may be used by the

67100 Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations

refiner as another blendstock, and the

gasoline produced using the PCG is

sampled and tested and included in

compliance calculations without regard

to the PCG content. The gasoline

produced using the PCG will not

necessarily have the same designation

as the original PCG batch. As a result,

these procedures allow conventional

gasoline to be upgraded to RFG, nonVOC controlled RFG to be reclassified as

VOC controlled RFG, and RFG VOC

Region 2 gasoline to be reclassified as

RFG VOC Region 1 gasoline. Where

previously certified RFG is blended

with other components to produce

conventional gasoline, the refiner must

reclassify the RFG as conventional

gasoline and follow the procedures for

using previously certified conventional

gasoline to produce new conventional

gasoline.

RFG standards may be met on an

annual average basis or on a per-gallon

basis. When using PCG, these two

situations are handled somewhat

differently, as follows:

(1) Where standards are met on

average at a refinery, a refiner who uses

PCG must meet each average standard

based on the net average properties of

gasoline in the relevant averaging pool,

consisting of the positive volume and

properties of all gasoline produced in

that averaging pool and the negative

volume and properties of all PCG in that

averaging pool. Each averaging pool is

required to have a net ‘‘positive’’

gasoline volume.

(2) Where a refiner has elected to meet

a parameter or emissions performance

standard on a per-gallon basis, and a

batch of RFG or RBOB is produced

using previously certified RFG, for this

batch the refiner must meet the more

stringent of: (1) The per-gallon standard

that applies to the refinery under

§ 80.41; or (2) the actual value for that

parameter or emissions performance

measure for the previously certified RFG

used to produce the batch. Where

previously certified conventional

gasoline is used to produce a batch of

RFG or RBOB, the gasoline produced

must meet the per-gallon RFG standards

under § 80.41.

Under the PCG procedures, any

gasoline claimed as PCG must actually

be used in a refinery’s operation. This

is to ensure that the PCG procedures

will not cause a degradation in gasoline

quality. For example, if a refinery

receives a batch of ‘‘dirty’’ conventional

gasoline and classifies it as PCG, but

never uses it as a component for

gasoline production, the PCG would be

included as a negative batch in the

refinery’s compliance calculations and

the refinery’s conventional gasoline

pool would appear ‘‘cleaner’’ than it

actually is.

The following table summarizes the

PCG approach:

Type of previously certified gasoline

(PCG)

Type of gasoline

produced

Compliance with standards when using PCG

Per-gallon Average

RFG or RBOB ................................... RFG or RBOB ......... New batch must meet the more

stringent of: § 80.41 per gallon

standards; or PCG properties.

Include PCG in RFG compliance calculations as negative batch; include new

batch in RFG compliance calculations.

All RFG pool volumes for standards must

be positive.

Conventional gasoline (CG) .............. RFG or RBOB ......... New batch must meet § 80.41 per

gallon standards.

Include PCG in CG compliance calculations as negative batch; include new

batch in RFG compliance calculations.

CG pool volume must be positive.

CG (or RFG) 1 .................................... CG ........................... None ................................................ Include PCG in CG compliance calculations as a negative batch; include new

batch in CG compliance calculations.

CG pool volume must be positive.

1 Includes RFG used to produce CG, because previously certified RFG may be reclassified (‘‘downgraded’’) as previously certified CG.

We received a number of favorable

comments on the proposal regarding

PCG. One commenter, however, said

that requiring the net volume of gasoline

in a refinery’s anti-dumping compliance

calculations to be positive creates an

inconsistency with those parties who

have elected to aggregate refineries for

purposes of complying with the antidumping standards. We agree with the

commenter, and today’s final rule

modifies the proposed regulatory

language to clarify that for refiners who

have elected to aggregate their refineries

for anti-dumping compliance, the

requirement for the net volume of

gasoline to be positive applies to the

anti-dumping compliance calculations

of the refiner’s aggregation.

Another commenter suggested that

EPA clarify that tank heels do not have

to be included in the volume accounted

for as a negative batch, assuming that

proper change of tank service

procedures are followed. In the NPRM,

we proposed procedures relating to the

change of service of gasoline storage

tanks. These procedures are also

finalized by today’s rule. See

§ 80.78(a)(10), and Section II of this

preamble for a discussion of these

procedures. Under these procedures,

tank heels are allowed to remain in a

tank and may be mixed with products

that normally are required to be

segregated in a situation where a party

is changing the service of a gasoline

storage tank. The allowances under

these provisions are limited specifically

to circumstances where the change of

service is for a legitimate operational

reason and is not for the purpose of

combining categories of gasoline that

otherwise must be segregated, or for the

purpose of combining gasoline with

blendstock. Accordingly, these

provisions include specific change-ofservice requirements, one of which is

that the volume of product in the tank

must be made as low as possible

through normal pumping operations

before adding product of a new

category. Where all of the requirements

of § 80.78(a)(10) are met, a refiner is not

required to account for the volume of a

PCG tank heel.

Where gasoline is produced at a

refinery in a blending tank, a tank heel

of PCG must be tested and included in

the refinery’s compliance calculations

as a negative batch in the appropriate

category for the PCG. However, if the

refiner has test results from the prior

batch which included the volume of the

heel, and no other PCG product is added

to the tank, the test results from the

prior batch may be used to fulfill the

testing requirements for the PCG heel. In

situations where other PCG product in

addition to the PCG heel may be present

in the blending tank, the entire volume

of PCG, including the heel, must be

Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations 67101

tested and included in the refinery’s

compliance calculations as a negative

batch.

One commenter said that the

proposed treatment is appropriate for

conventional gasoline that is upgraded

at the same refinery where it was

originally certified, but not for

conventional gasoline that was

produced at another refinery. In the

latter case, the inclusion of a negative

batch in the anti-dumping calculations

has the effect of removing a batch of

gasoline that was never included in the

refiner’s pool in the first instance.

Where conventional gasoline certified at

another refinery is upgraded to RFG or

RBOB, the commenter suggested that

the negative batch should be applied to

the RFG calculations, leaving only the

blendstocks combined with it in that

refinery’s RFG compliance calculations.

The commenter said that the proposal as

written would make it difficult for

refineries that produce close to 100%

RFG to upgrade PCG and/or blendstocks

from other refineries to RFG, since they

may not produce sufficient volumes of

conventional gasoline to offset the

negative batches. This commenter also

suggested that the source of the

conventional gasoline (same refinery vs.

different refinery) be acknowledged in

the negative batch data, which, the

commenter believes would preserve the

flexibility for all refiners while

eliminating the ‘‘gaming’’ that concerns

EPA.

As discussed above, the original

prohibitions against reclassifying certain

products were included in the RFG rule

because of a concern that the overall

quality of the gasoline pools could be

degraded if refiners were able to

reclassify conventional gasoline to RFG,

or to reclassify certain categories of RFG

into other categories of RFG. Therefore,

to prevent a degradation of the overall

quality of a gasoline pool, we believe

that PCG used to produce gasoline of a

different category should be included as

a negative batch in the refinery’s

compliance calculations for the category

originally designated for the PCG.

Although requiring the source of the

PCG to be included in the negative

batch data may serve to deter persons

from using PCG for purposes of

‘‘gaming,’’ as the commenter suggested,

we believe this alone would not address

the problem of degradation of the

overall gasoline pool. Unless a refiner is

required to include all PCG in

compliance calculations as a negative

batch, there may be the potential for

negative environmental consequences.

Moreover, we believe that it would be

unreasonable and impractical to require

a refiner who sells gasoline that is later

used as PCG by another refiner to adjust

its compliance calculations to reflect the

other refiner’s use of the PCG. As a

result, we believe that the most

appropriate approach is to require the

refiner who uses the PCG to produce

gasoline of a different category to

include the PCG as a negative batch in

the refinery’s compliance calculations.

We understand that there may be

situations where a refiner is unable to

avail itself of the flexibility provided by

the PCG provisions because of the

limitations on this approach,

particularly those refiners who wish to

upgrade PCG but who produce little or

no gasoline of the same category as the

PCG to offset the PCG batches. We are

interested in extending the flexibility

afforded by today’s rule to such refiners

if it is possible to devise practical and

effective procedures for extending this

flexibility without compromising the

environmental benefits of the RFG/antidumping program. As a result, we are

requesting comments on how the

flexibility afforded in today’s rule can

be practically extended to refiners in

this situation. If, based on the comments

we receive, we are able to determine

practical and effective procedures for

extending this flexibility, we would

adopt those procedures through notice

and comment rulemaking. In the

meantime, we believe that finalizing the

previously proposed procedures for

using PGC is appropriate as they will

provide industry with additional

blending flexibility without

compromising environmental goals. We

believe this additional flexibility will be

beneficial to refiners and may ease

potential supply problems, particularly

with regard to RFG in the summertime.

Several commenters said that the

proposed revision of § 80.78(a)(5),

which prohibits the combining of RFG

with conventional gasoline or

blendstock except where a refiner does

so under the requirements specified in

§ 80.65(i), would have the unintended

effect of prohibiting the downgrading of

RFG to conventional gasoline. We agree

this would be an unintended

consequence of the revision of

§ 80.78(a)(5) as proposed. As a result,

§ 80.78(a)(5) is being finalized as

proposed, except for minor word

changes and the addition of language

which specifically allows RFG to be

combined with conventional gasoline or

blendstock if the combined product is

designated as conventional gasoline.

To ensure effective enforcement of the

RFG and conventional gasoline

regulations, today’s rule includes

recordkeeping requirements applicable

to the PCG option which require

retention of records demonstrating the

storage and movement of the PCG from

the time it is received at the refinery

until it is used in the production of

gasoline. Today’s rule also includes a

requirement to submit information

relating to PCG batches in compliance

reports to EPA. In addition, today’s rule

includes attest procedures which

require the auditor to verify that PCG

was used to produce gasoline at the

refinery, and that the PCG batch report

to EPA is consistent with both the

refiner’s sampling and testing of the

PCG and the PCG product transfer

documents when received at the

refinery.

The recordkeeping and reporting

requirements in today’s rule were

included in the NPRM in the case of

PCG used to produce RFG, but were

inadvertently omitted in the NPRM for

PCG used to produce conventional

gasoline. We believe these

recordkeeping and reporting

requirements are necessary enforcement

tools for tracking the use of PCG for

conventional gasoline as well as RFG,

and are a logical outgrowth of the PCG

proposal. The recordkeeping and

reporting requirements for using PCG to

produce conventional gasoline are

minimal, as they are for RFG, and any

burden associated with these

requirements would be more than offset

by the additional flexibility provided by

the PCG provisions. We received no

negative comments on the proposed

recordkeeping and reporting

requirements for RFG producers under

the PCG rule, and we have no reason to

believe that there would be any unique

burdens associated with the

recordkeeping and reporting

requirements for conventional gasoline

producers under the rule. Consideration

of the burdens associated with

recordkeeping and reporting for

conventional gasoline producers as well

as for RFG producers who use PCG was

included in the ICR for the proposed

rule.

As a result, the recordkeeping and

reporting provisions relating to PCG

used to produce RFG are being finalized

as proposed, except that in some cases

the provisions have been reworded or

reordered slightly from the proposed

rule for purposes of clarity. These

modifications do not change the

substance of the rule as proposed. The

recordkeeping and reporting

requirements relating to use of PCG to

produce conventional gasoline finalized

in today’s rule mirror the recordkeeping

and reporting requirements for PCG

used to produce RFG. We received no

negative comments on the attest

engagement requirements relating to the

67102 Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations

PCG provisions, and these requirements

being finalized as proposed.

Section 80.340(c) of today’s rule

provides that the procedures for using

PCG may be applied under the gasoline

sulfur regulations in Subpart H. We

believe that the PCG procedures in

today’s rule provide an appropriate

alternative method to the existing

methods in § 80.340 for demonstrating

compliance with the sulfur

requirements where PCG is used to

produce gasoline. Moreover, we believe

that this approach is necessary for

purposes of regulatory consistency.

Under the gasoline sulfur regulations,

parties are required to include in their

annual averaging sulfur reports batch

information as reported under the RFG/

anti-dumping regulations. Where the

PCG procedures in today’s rule are used,

the batch reports submitted under the

RFG/anti-dumping regulations will

reflect the PCG as a negative batch and

the batch of gasoline produced using the

PCG as a separate new batch. Therefore,

where PCG is used, the method of

demonstrating compliance under the

gasoline sulfur regulations should relate

to the batch reports submitted under the

RFG/anti-dumping regulations. While

this particular approach was not

proposed, we believe that the provisions

for allowing use of the PCG procedures

under the gasoline sulfur regulations are

a necessary and logical outgrowth of the

proposal for using PCG.

On May 17, 2001, the National Energy

Policy Development Group (NEPD)

recommended that EPA ‘‘study

opportunities to maintain or improve

the environmental benefits of state and

local ‘boutique’ clean fuel programs

while exploring ways to increase the

flexibility of the fuels distribution

infrastructure, improve fungibility, and

provide added market liquidity.’’ In

response to the NEPD charge, EPA

included in its boutique fuel report a

series of regulatory actions, including

today’s action regarding PCG, intended

to better facilitate seasonal gasoline

transition and address gasoline supply

and fungibility concerns during periods

of low gasoline inventories. We are able

to finalize the PCG procedures now, in

advance of other intended EPA actions,

because they were previously proposed

by EPA. We expect that the flexibilities

provided in today’s action will promote

improved availability of fuel meeting

the range of environmental and market

needs. Action on the other boutique fuel

regulatory recommendations targeted at

facilitating the transition from winter to

summer fuel should be completed in

advance of next year’s ozone season.

II. Changing Service of Gasoline

Storage Tanks

Today’s rule finalizes procedures for

changing the service of gasoline storage

tanks. These procedures were originally

issued in Question and Answer

guidance documents. See Reformulated

Gasoline and Anti-Dumping Questions

and Answers, November 21, 1994,

February 21, 1995. As discussed below,

these procedures may be used for tank

turnovers during the transition to VOC

controlled gasoline in the spring. We are

currently assessing other aspects of the

regulatory requirements regarding the

transition to the VOC control season. If

we determine that additional changes to

the regulations relating to the VOC

transition period are appropriate, they

will be addressed in a subsequent

Federal Register notice.

Section 80.78(a) requires the

segregation of several categories of

gasoline. Prior to today’s final rule,

these segregation requirements

prohibited the mixing of any amount of

the gasolines that must be segregated.

As a result, if a refiner wishes to change

a tank’s service, and the old and new

gasolines are types that are required to

be segregated, the new gasoline may not

be added unless the tank is completely

free of any amount of the old gasoline.

Moreover, under the regulations prior to

today’s rulemaking, a party who

combines any volume of blendstock

with RFG or conventional gasoline has

produced an additional volume of

gasoline which constitutes ‘‘refining.’’

For any such action, the refiner must

meet all standards and requirements

that apply to refiners of RFG or

conventional gasoline. As a result, if a

refiner were to change a gasoline storage

tank’s service in a manner that results

in some volume of blendstocks being

mixed with RFG or conventional

gasoline, the refiner would be required

to meet all of the standards and

requirements for that ‘‘batch’’ of

gasoline.

We recognize that when many

gasoline storage tanks are pumped as

low as possible, a residual volume of

gasoline or blendstock remains in the

tank (called the tank ‘‘heel’’), and in the

terminal’s manifolds and pipes that

serve the tank. We believe it is very

difficult and impractical to eliminate

these residual volumes. As a result, we

proposed that, under certain conditions

and constraints, where a refiner changes

the service of a gasoline storage tank,

pipe, or manifold for legitimate business

reasons (unrelated to any goal of mixing

dissimilar gasolines or blendstock), such

refiner would be allowed to mix

products that normally must remain

segregated.

We also proposed an additional

option that would apply to oxygenate

blenders. We proposed that this option

would be available only where the

oxygenate blender is unable to meet the

tank transition requirements discussed

above. We proposed this option

because, in some cases, the

requirements for tank transition under

the proposed provisions are not feasible

without risk that a terminal would have

to be closed during at least part of the

transition period. For example, where a

terminal operator supplies RFG

containing MTBE during the summer

VOC season, and RFG containing

ethanol outside the VOC season, the

terminal tank would have to transition

from RBOB to RFG in the spring, and

from RFG to RBOB in the fall. Under the

change-of-service requirements

described above, in the spring the

storage tank’s RBOB content would have

to be drawn-down to the minimum level

possible through normal pumping

operations before any RFG could be

added to the tank. However, to meet this

requirement, the party may have to take

the storage tank out of service if the

‘‘minimum level’’ is reached before new

product is available to be transferred

into the tank. If the terminal has limited

tankage it may be unable to supply

gasoline during the time the storage tank

remains out of service, which could

adversely affect gasoline supplies for

some parties. The same difficulty could

occur when transitioning from RFG to

RBOB in the fall.

To minimize the likelihood that a

party would have to take a tank out of

service to transition product types, we

proposed to allow parties to receive RFG

in a tank containing RBOB in the spring

prior to the beginning of the VOC

season, and receive RBOB in a tank

containing RFG in the fall after the end

of the VOC season. However, under this

option, parties would be required to

ensure that all RFG downstream

standards, including the oxygen

standard, are met during the transition.

In addition, the transition must occur

outside the period VOC control

standards apply at the terminal (i.e.,

May 1 through September 15 each year).

For further discussion, see the Notice of

Proposed Rulemaking for this action at

62 FR 37358–59 (July 11, 1997).

We received one comment on the

proposal regarding change of service of

gasoline storage tanks. The commenter

said that the cite to § 80.78(a)(1)(iii) in

the change of service provisions appears

to be incorrect. We agree with the

comment, and the provisions for

changing service of gasoline storage

Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations 67103

2There are no new recordkeeping or reporting

requirements included in today’s final tank changeover provisions. Any recordkeeping obligations

associated with the refining or blending activities,

and related sampling, described in the new tank

change-over provisions are covered by an existing

reformulated gasoline ICR. OMB Control

#2060.0277. Additionally, to the extent that the new

tank change-over provisions allow for activities that

would otherwise subject a party to regulation as a

refiner, the very limited sampling and testing

obligations of today’s final rule represent a

relaxation of the sampling and testing obligations

otherwise applicable to refiners, and therefore a

relaxation in any potential recordkeeping and

reporting obligations.

tanks are being finalized as proposed,

except that the cite to § 80.78(a)(1)(iii)

has been deleted.

III. Public Participation

In the NPRM, we solicited comments

on the need to take the actions

proposed, including the actions

finalized today. We have reviewed and

considered all written comments on the

provisions in today’s rule. Responses to

comments are contained in the

preamble to this rule. All comments

received by EPA are located in the EPA

Air Docket, Docket A–97–03 (See

ADDRESSES section of this preamble).

Comments solicited at the end of

Section I. of this preamble should be

submitted to the address listed in the

ADDRESSES section of this preamble.

Please also submit a copy to the person

listed in the FOR FURTHER INFORMATION

CONTACT section of this preamble.

IV. Administrative Requirements

A. Administrative Designation and

Regulatory Analysis

Under Executive Order 12866 (58 FR

51735, October 4, 1993), the Agency is

required to determine whether the

regulatory action is ‘‘significant’’ and

therefore subject to review by the Office

of Management and Budget (OMB) and

the requirements of the Executive Order.

The order defines a ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or,

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

Pursuant to the terms of Executive

Order 12866, we have determined that

this final rule is not a ‘‘significant

regulatory action.’’

B. Compliance With the Regulatory

Flexibility Act

We have determined that this rule

would not have a significant impact on

a substantial number of small entities,

and that it is therefore not necessary to

prepare a regulatory flexibility analysis

in conjunction with this final rule. This

rule would not have a significant impact

on a substantial number of small entities

because it involves optional provisions

intended to promote successful

implementation of the RFG and antidumping requirements and to afford

regulated parties with greater flexibility

to blend gasoline and implement tank

turnovers. As such, this final rule will

be beneficial to industry and may have

the potential to ease gasoline supply

shortages.

C. Paperwork Reduction Act

The information collection

requirements related to the provisions

finalized today have been submitted for

approval to the Office of Management

and Budget (OMB) under the provisions

of the Paperwork Reduction Act, 44

U.S.C. 3501 et seq. An Information

Collection Request (ICR) was prepared

by EPA (ICR No. 1591.12) and a copy

may be obtained from Susan Auby, OIC

Collection Strategies Division; U.S.

Environmental Protection Agency (mail

code 2822); 1200 Penn. Ave NW;

Washington, DC 20460, or by calling

(202) 260–4901. Insert the ICR title and/

or OMB control number in any

correspondence. Copies may also be

downloaded from the Internet at http:/

/www.epa.gov.icr.

Under today’s final rule, EPA is

requiring refiners to keep certain

records associated with the provisions

for using PCG to produce gasoline.

However, EPA believes that this

requirement will be met using

documents created and kept for

commercial business purposes; i.e.,

documents that show the movement of

PCG to blending tanks and volume and

parameter measurements. This

requirement, therefore, is not expected

to impose additional recordkeeping

burdens on regulated parties. This final

rule also requires refiners to include

information regarding PCG batches in

their RFG and anti-dumping compliance

reports. However, since the required

information regarding PCG batches,

such as volume and parameter

measurements, will be created for

commercial business purposes,

including this information in the EPA

reports is expected to impose only a

minimal additional burden on regulated

parties. An estimate of the information

collection burden is contained in the

ICR for this rule.2

Burden means the total time, effort, or

financial resources, expended by

persons to generate, maintain, retain, or

disclose or provide information to or for

a Federal agency. This includes the time

needed to review instructions; develop,

acquire, install, and utilize technology

and systems for the purposes of

collecting, validating, and verifying

information, processing and

maintaining information, and disclosing

and providing information; adjust the

existing ways to comply with the

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information.

An agency may not conduct or

sponsor, and a person is not required to

respond to, a collection of information

unless it displays a currently valid OMB

control number. The OMB control

numbers for EPA’s regulations are listed

in 40 CFR Chapter 15.

D. Intergovernmental Relations

1. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

federal agencies to assess the effects of

their regulatory actions on state, local,

and tribal governments, and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘federal mandates’’ that may result

in expenditures to state, local, and tribal

governments, in the aggregate, or to the

private sector, of $100 million or more

for any single year. Before promulgating

a 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 that

is not the least costly, most costeffective, or least burdensome

alternative if EPA provides an

67104 Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations

explanation in the final rule of why

such an alternative was adopted.

Before we establish any regulatory

requirement that may significantly or

uniquely affect small governments,

including tribal governments, we must

develop a small government plan

pursuant to section 203 of the UMRA.

Such a plan must provide for notifying

potentially affected small governments,

and enabling officials of affected small

governments to have meaningful and

timely input in the development of our

regulatory proposals with significant

federal intergovernmental mandates.

The plan must also provide for

informing, educating, and advising

small governments on compliance with

the regulatory requirements.

This final rule contains no federal

mandates for state, local, or tribal

governments as defined by the

provisions of Title II of the UMRA. The

rule imposes no enforceable duties on

any of these governmental entities.

Nothing in this final rule would

significantly or uniquely affect small

governments.

EPA has determined that this rule

contains no federal mandates that may

result in expenditures of more than

$100 million to the private sector in any

single year. This action provides

refiners with optional procedures for

blending gasoline and performing tank

turnovers. This action, in fact, is

expected to reduce the burden on

regulated entities by providing them

with this additional flexibility.

Therefore, the requirements of the

Unfunded Mandates Act do not apply to

this action.

2. Executive Order 13084: Consultation

and Coordination With Indian Tribal

Governments

On January 1, 2001, Executive Order

13084 was superseded by Executive

Order 13175. However, this rule was

developed during the period when

Executive Order 13084 was still in force,

and so Tribal considerations were

addressed under Executive Order 13084.

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian Tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to the Office of

Management and Budget, in a separately

identified section of the preamble to the

rule, a description of the extent of EPA’s

prior consultation with representatives

of affected tribal governments, a

summary of the nature of their concerns,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 13084 requires EPA to

develop an effective process permitting

elected officials and other

representatives of Indian tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory policies on matters that

significantly or uniquely affect their

communities.’’

Today’s rule does not significantly or

uniquely affect the communities of

Indian Tribal governments. The

requirements for private businesses in

today’s document would have national

applicability, and thus would not

uniquely affect the communities of

Indian Tribal Governments. Further, no

circumstances specific to such

communities exist that would cause an

impact on these communities beyond

those discussed in the other sections of

today’s document. Thus, EPA’s

conclusions regarding the impacts from

the implementation of today’s rule

discussed in the other sections of this

document are equally applicable to the

communities of Indian Tribal

governments. Accordingly, the

requirements of section 3(b) of

Executive Order 13084 do not apply to

this rule.

3. Executive Order 13132 (Federalism)

Executive Order 13132, entitled

‘‘Federalism’’ (64 FR 43255, August 10,

1999), requires EPA to develop an

accountable process to ensure

‘‘meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’

Under Section 6 of Executive Order

13132, EPA may not issue a regulation

that has federalism implications, that

imposes substantial direct compliance

costs, and that is not required by statute,

unless the Federal government provides

the funds necessary to pay the direct

compliance costs incurred by State and

local governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law, unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

Section 4 of the Executive Order

contains additional requirements for

rules that preempt state or local law,

even if those rules do not have

federalism implications (i.e., the rules

will not have substantial direct effects

on the states, on the relationship

between the national government and

the states, or on the distribution of

power and responsibilities among the

various levels of government.) Those

requirements include providing all

affected state and local officials notice

and an opportunity for appropriate

participation in the development of the

regulation. If the preemption is not

based on express or implied statutory

authority, EPA also must consult, to the

extent practicable, with appropriate

state and local officials regarding the

conflict between state law and federally

protected interests within the Agency’s

area of regulatory responsibility.

This final rule does not have

federalism implications. It will not have

substantial direct effects on the states,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. This rule allows

industry greater flexibility to blend

gasoline components in a manner that

will not result in any negative effect on

air quality. As a result, the effect of this

rule on the states, if any, will be positive

in that the blending flexibility afforded

by this rule may help to ensure that

adequate supplies of gasoline are

available, particularly in areas that

require RFG. Thus, the requirements of

section 6 of the Executive Order do not

apply to this rule.

E. National Technology Transfer and

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (NTTAA), Section 12(d) of

Public Law 104–113, directs EPA to use

voluntary consensus standards in its

regulatory activities unless it would be

inconsistent with applicable law or

otherwise impractical. Voluntary

consensus standards are technical

standards (e.g., materials specifications,

test methods, sampling procedures, and

business practices) developed or

adopted by voluntary consensus

standards bodies. The NTTAA directs

EPA to provide Congress, through OMB,

explanations when the Agency decides

not to use available and applicable

voluntary consensus standards.

Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations 67105

Today’s rule includes a provision

which requires the testing of gasoline in

a storage tank after the service of the

tank has been changed. This provision

is included in today’s rule to ensure that

the quality of the gasoline is not

compromised through the process of

changing the service of the tank. This

provision is consistent with the NTTAA

since it allows parties to use alternative

test methods to fulfill this requirement

rather than using the regulatory test

methods, provided that the alternative

methods are approved by the American

Society of Testing and Materials

(ASTM), the protocols of the ASTM

methods are followed, and the

alternative methods are correlated to the

regulatory method.

F. Executive Order 13045: Children’s

Health Protection

Executive Order 13045, ‘‘Protection of

Children from Environmental Health

Risks and Safety Risks’’ (62 FR 19885,

April 23, 1997) applies to any rule that

(1) is determined to be ‘‘economically

significant’’ as defined under Executive

Order 12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

section 5–501 of the Order directs the

Agency to evaluate the environmental

health or safety effects of the planned

rule on children, and explain why the

planned regulation is preferable to other

potentially effective and reasonably

feasible alternatives considered by the

Agency.

This final rule is not subject to the

Executive Order because it is not an

economically significant regulatory

action as defined by Executive Order

12866 and it does not concern an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. The

reformulated gasoline program is

designed to reduce vehicle emissions of

toxic and ozone-forming substances.

This rule will not affect the air quality

benefits of the reformulated gasoline

program.

G. Congressional Review Act

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

summit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA 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 United

States prior to publication of the rule in

the Federal Register. This rule is not a

‘‘major rule’’ as defined by 5 U.S.C.

804(2).

H. Executive Order 13211 (Energy

Effects)

This rule is not subject to Executive

Order 13211, ‘‘Actions Concerning

Regulations That Significantly Affect

Energy Supply, Distribution, or Use’’ (66

FR 28355 (May 22, 2001)) because it is

not a significant regulatory action under

Executive Order 12866. Although no

assessment is required under Executive

Order 13211, we believe that today’s

rule should help to alleviate energy

supply or distribution concerns in

certain situations, since the additional

flexibility provided to refiners under the

rule will help to facilitate seasonal

gasoline transitions and address

gasoline supply and fungibility

problems during periods of low gasoline

inventories.

V. Statutory Provisions and Legal

Authority

Statutory authority for today’s final

rule comes from sections 211(c) and

211(k) of the CAA (42.U.S.C. 7545(c)

and (k)). Section 211(c) allows EPA to

regulate fuels that contribute to air

pollution which endangers public

health or welfare, or which impairs

emission control equipment. Section

211(k) prescribes requirements for RFG

and conventional gasoline and requires

EPA to promulgate regulations

establishing these requirements.

Additional support for the procedural

aspects of the fuels controls in today’s

rule comes from sections 114(a) and

301(a) of the CAA.

List of Subjects in 40 CFR Part 80

Environmental protection, Air

pollution control, Fuel additives,

Gasoline, Imports, Motor vehicle

pollution, Reporting and recordkeeping

requirements.

Dated: December 19, 2001.

Christine Todd Whitman,

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—REGULATION OF FUELS

AND FUEL ADDITIVES

1. The authority citation for part 80

continues to read as follows:

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

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

7545 and 7601(a)).

2. Section 80.65 is amended by

revising paragraph (i) to read as follows:

§ 80.65 General requirements for refiners,

importers, and oxygenate blenders.

* * * * *

(i) Exclusion of previously certified

gasoline. Any refiner who uses

previously certified reformulated or

conventional gasoline or RBOB to

produce reformulated gasoline or RBOB

must exclude the previously certified

gasoline for purposes of demonstrating

compliance with the standards under

§ 80.41. This exclusion must be

accomplished by the refiner as follows:

(1)(i) Determine the volume and

properties of each batch of previously

certified gasoline used to produce

reformulated gasoline or RBOB using

the procedures in paragraph (e)(1) of

this section and § 80.66, and the

independent analysis requirements in

paragraph (f) of this section in the case

of previously certified reformulated

gasoline.

(ii) In the case of previously certified

reformulated gasoline or RBOB

determine the emissions performances

for toxics and NOX, and VOC for VOCcontrolled gasoline, and the

designations for VOC control.

(iii) In the case of previously certified

conventional gasoline determine the

exhaust toxics and NOX emissions

performances.

(2) Determine the volume and

properties, and the emissions

performance for toxics and NOX, and

VOC for VOC-controlled gasoline, of any

batch of reformulated gasoline or RBOB

produced at the refinery using

previously certified gasoline and

include each batch in the refinery’s

compliance calculations without regard

to the presence of previously certified

gasoline in the batch.

(3) In the case of any parameter or

emissions performance standard that the

refiner has designated for the refinery to

meet on a per-gallon basis under

paragraph (d)(2)(v) of this section, the

per-gallon standard that applies to any

batch of reformulated gasoline or RBOB

produced by the refinery is as follows:

(i) When using any previously

certified reformulated gasoline or RBOB,

the more stringent of:

(A) The per-gallon standard that

applies to the refinery under § 80.41; or

(B) The most stringent value for that

parameter or emissions performance for

any previously certified reformulated

gasoline or RBOB used to produce the

batch.

(ii) When using any previously

certified conventional gasoline, the pergallon standard that applies to the

refinery under § 80.41.

67106 Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations

(4) In the case of any parameter or

emissions performance standard that the

refiner has designated for the refinery to

meet on average under paragraph

(d)(2)(v) of this section, any previously

certified gasoline must be excluded

from the refinery’s compliance

calculations as follows:

(i) Where a refiner uses previously

certified reformulated gasoline or RBOB

to produce reformulated gasoline or

RBOB:

(A) The refiner must include the

volume and properties of any batch of

previously certified reformulated

gasoline or RBOB in the refinery’s

compliance calculations for the

standard under § 80.67(g) as a negative

batch, by multiplying the term Vi in

§ 80.67(g)(1)(ii) (i.e., the batch volume)

times negative 1; and

(B) The negative batch under

paragraph (i)(4)(i)(A) of this section

must be included in the averaging

categories that correspond to the

designation regarding VOC control of

the previously certified gasoline batch

when received; and

(C) The net volume of gasoline in the

refinery’s reformulated gasoline

compliance calculations must be

positive in each of the following

categories where the standard is being

met on average:

Standard

Gasoline category

that must have net

positive volume

(1) Oxygen ................ All RFG 1.

(2) Benzene .............. All RFG and RBOB.

(3) VOC emissions

performance.

(i)RFG and RBOB

that is VOC-controlled for Region 1.

(ii) RFG and RBOB

that is VOC-controlled for Region 2.

(4) Toxics emissions

performance.

All RFG and RBOB.

(5) NOX emissions

performance.

(i) All RFG and

RBOB.

(ii) RFG and RBOB

that is VOC-controlled.

1 ‘‘RFG’’ is an abbreviation for reformulated

gasoline.

(ii) Where a refiner uses previously

certified conventional gasoline to

produce reformulated gasoline or RBOB:

(A) The refiner must include the

volume and properties of any batch of

previously certified conventional

gasoline as a negative batch in the

refiner’s anti-dumping compliance

calculations under § 80.101(g) for the

refinery, or where applicable, the

refiner’s aggregation under § 80.101(h);

and

(B) The net volume of gasoline in the

refiner’s anti-dumping compliance

calculations for the refinery, or, where

applicable, the refiner’s aggregation

under § 80.101(h), must be positive.

(5) The refiner must use any

previously certified gasoline that the

refiner includes as a negative batch

under paragraph (i)(4) of this section in

its compliance calculations for the

refinery, or where appropriate, the

refiner’s aggregation, as a component in

gasoline production during the annual

averaging period in which the

previously certified gasoline was

included as a negative batch in the

refiner’s compliance calculations.

(6) (i) Any refiner may use the

procedures specified in this paragraph

(i) to combine previously certified

conventional gasoline with reformulated

gasoline or RBOB, to reclassify

conventional gasoline into reformulated

gasoline or RBOB, or to change the

designations of reformulated gasoline or

RBOB with regard to VOC control.

(ii) The procedures under this section

are refinery procedures. Any person

who uses the procedures under this

section is a refiner who must meet all

requirements applicable to refiners

under this subpart.

(7) Nothing in this paragraph (i)

prevents any party from combining

previously certified reformulated

gasolines from different sources in a

manner that does not violate the

prohibitions in § 80.78(a).

3. Section 80.74 is amended by:

a. Removing the word ‘‘and’’ at the

end of paragraph (b)(5).

b. Removing the period and adding a

semicolon and the word ‘‘and’’ at the

end of paragraph (b)(6).

c. Adding paragraph (b)(7).

The addition reads as follows:

§ 80.74 Recordkeeping requirements.

* * * * *

(b)* * *

(7) In the case of any gasoline

classified as previously certified

gasoline under the terms of § 80.65(i):

(i) Results of the tests to determine the

properties and volume of the previously

certified gasoline when received at the

refinery; and

(ii) Records that reflect the storage

and movement of the previously

certified gasoline within the refinery to

the point the previously certified

gasoline is used to produce

reformulated gasoline or RBOB.

* * * * *

4. Section 80.75 is amended by:

a. Removing the word ‘‘and’’ at the

end of paragraph (a)(2)(vi).

b. Removing the period and adding a

semicolon and the word ‘‘and’’ to the

end of paragraph (a)(2)(vii).

c. Adding paragraph (a)(2)(viii).

The addition reads as follows:

§ 80.75 Reporting requirements.

* * * * *

(a) * * *

(2) * * *

(viii) In the case of any previously

certified gasoline used in a refinery

operation under the terms of § 80.65(i),

the following information relative to the

previously certified gasoline when

received at the refinery:

(A) Identification of the previously

certified gasoline as such;

(B) The batch number assigned by the

receiving refinery;

(C) The date of receipt; and

(D) The volume, properties and

designation of the batch.

* * * * *

5. Section 80.78 is amended by:

a. Revising paragraphs (a)(5) and

(a)(10).

b. Removing the word ‘‘or’’ at the end

of paragraph (a)(7)(i).

c. Removing the period at the end of

paragraph (a)(7)(ii) and adding in its

place ‘‘;or’’.

d. Adding paragraphs (a)(7)(iii) and

(a)(11).

The revisions and additions to read as

follows:

§ 80.78 Controls and prohibitions on

reformulated gasoline.

* * * * *

(a) * * *

(5) No person may combine any

reformulated gasoline with any

conventional gasoline or blendstock,

except that a refiner may do so at a

refinery under the requirements

specified in § 80.65(i), or if the

combined product is designated as

conventional gasoline.

* * * * *

(7) * * *

(iii) Under the terms of paragraph

(a)(5) of this section.

* * * * *

(10) The prohibitions against

combining certain categories of gasoline

under paragraphs (a)(5), (a)(7) and (a)(8)

of this section do not apply in the case

of a party who is changing the type of

gasoline stored in a gasoline storage

tank or the type of gasoline transported

through a gasoline pipe or manifold

within a single facility (a gasoline

storage tank, pipe, or manifold change

of service), or in the case of a change of

service that involves mixing gasoline

with blendstock, provided that:

(i) The change of service is for a

legitimate operational reason and is not

for the purpose of combining the

categories of gasoline or of combining

gasoline with blendstock;

Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations 67107

(ii) Prior to adding product of the new

category the volume of product of the

old category in the tank, pipe or

manifold is made as low as possible

through normal pumping operations;

(iii) The volume of product of the new

category that is added to the tank, pipe

or manifold is as large as possible taking

into account the availability of product

of the new category; and

(iv) In any case where the new

category of product is reformulated

gasoline, subsequent to adding the

gasoline of the new category, a

representative sample from the tank,

pipe or manifold is collected and

analyzed, and such analysis shows

compliance with each standard under

§ 80.41 that is relevant to the new

gasoline category. The analysis for each

standard must be conducted using the

method specified under § 80.46, or

using another method that is approved

by the American Society of Testing and

Materials (ASTM), provided that the

protocols of the ASTM method are

followed and the alternative method is

correlated to the method specified

under § 80.46.

(11) The prohibition against

combining reformulated gasoline with

RBOB under paragraph (a)(8) of this

section does not apply in the case of a

party who is changing the type of

product stored in a tank from which

trucks are loaded, from reformulated

gasoline to RBOB, or vice versa,

provided that:

(i) The change of service requirements

described in paragraph (a)(10) of this

section cannot be met without taking

the storage tank out of service;

(ii) Prior to adding product of the new

category the volume of product of the

old category in the tank is drawn down

to the lowest point which allows trucks

to be loaded during the transition;

(iii) The volume of product of the new

category that is added to the tank is as

large as possible taking into account the

availability of product of the new

category;

(iv) When transitioning from RBOB to

reformulated gasoline:

(A) If the reformulated gasoline in the

storage tank has an oxygen content of

less than 1.5 wt%, oxygenate must be

blended into the reformulated gasoline

at the loading rack such that the

reformulated gasoline has a minimum

oxygen content of 1.5 wt%;

(B) Subsequent to any oxygenate

blending, the reformulated gasoline

must meet all applicable standards that

apply at the terminal; and

(C) Prior to the date the VOC-control

standards apply to the terminal the

reformulated gasoline in the storage

tank must have an oxygen content of not

less than 1.5 wt%;

(v) When transitioning from

reformulated gasoline to RBOB:

(A) The oxygen content of the

reformulated gasoline produced using

the RBOB must be not less than the

minimum oxygen amount specified in

the RBOB product transfer documents;

(B) Subsequent to any oxygenate

blending, the reformulated gasoline

produced using the RBOB must meet all

applicable standards that apply at the

terminal; and

(C) The transition from reformulated

gasoline to RBOB may not begin until

the date the VOC-control standards no

longer apply to the terminal; and

(vi) The party must demonstrate

compliance with the requirements

specified in paragraphs (a)(11)(iv) and

(v) of this section through testing of

samples collected from the terminal

storage tank and from trucks loaded at

the terminal subsequent to each receipt

of new product until the transition is

complete. The analyses must be

conducted using the test method

specified under § 80.46, or using

another test method that is approved by

the American Society of Testing and

Materials (ASTM), provided that the

protocols of the ASTM method are

followed and the alternative method is

correlated with the method specified

under § 80.46.

* * * * *

6. Section 80.101 is amended by

adding paragraph (g)(9) to read as

follows:

§ 80.101 Standards applicable to refiners

and importers.

* * * * *

(g) * * *

(9) Exclusion of previously certified

gasoline and blendstock. (i) Any refiner

who uses previously certified

reformulated or conventional gasoline

or RBOB, or blendstock that previously

has been included in compliance

calculations under § 80.102, to produce

conventional gasoline at a refinery, must

exclude the previously certified gasoline

and blendstock for purposes of

demonstrating compliance with the

standards under paragraph (b) of this

section.

(ii) To accomplish the exclusion

required in paragraph (g)(9)(i) of this

section, the refiner must determine the

volume and properties of the previously

certified gasoline or previously certified

blendstock used at the refinery, and the

volume and properties of gasoline

produced at the refinery, and use the

compliance calculation procedures in

paragraphs (g)(9)(iii) and (g)(9)(iv) of

this section.

(iii) For each batch of previously

certified gasoline or blendstock that is

used to produce conventional gasoline

the refiner must:

(A) Determine the volume and

properties using the procedures in

paragraph (i) of this section;

(B) In the case of previously certified

gasoline, determine the exhaust toxics

and NOX emissions performance using

the summer or winter complex model,

as appropriate;

(C) In the case of previously certified

blendstock, determine the exhaust

toxics and NOX equivalent emissions

performance using the procedures in

paragraph (g)(3) of this section;

(D) Include the volume and emissions

performance of the previously certified

gasoline and/or blendstocks as a

negative volume and a negative

emissions performance in the refiner’s

compliance calculations for the refinery,

or where applicable, the refiner’s

aggregation under paragraph (h) of this

section, for exhaust toxics and NOX.

(iv) For each batch of conventional

gasoline produced at the refinery using

previously certified gasoline or

blendstock, the refiner must determine

the volume and properties, and exhaust

toxics and NOX emissions performance,

and include each batch in the refinery’s

compliance calculations for exhaust

toxics and NOX without regard to the

presence of previously certified gasoline

or blendstock in the batch.

(v) The refiner must use any

previously certified gasoline that the

refiner includes as a negative batch in

its compliance calculations for the

refinery, or where appropriate, the

refiner’s aggregation, as a component in

gasoline production during the annual

averaging period in which the

previously certified gasoline was

included as a negative batch in the

refiner’s compliance calculations.

(vi) Notwithstanding the provisions of

this paragraph (g)(9), the provisions of

paragraph (g)(3) of this section may be

used to calculate the exhaust toxics and

NOX emissions performance of a

blendstock added to conventional

gasoline for purposes of demonstrating

compliance with the standards under

paragraph (b) of this section.

* * * * *

7. Section 80.104 is amended by

adding paragraph (a)(2)(xii) to read as

follows:

§ 80.104 Recordkeeping requirements.

* * * * *

(a) * * *

(2) * * *

(xii) In the case of gasoline classified

as previously certified gasoline under

67108 Federal Register / Vol. 66, No. 249 / Friday, December 28, 2001 / Rules and Regulations

the terms of § 80.101(g)(9), the results of

the tests to determine the properties and

volume of the previously certified

gasoline when received at the refinery

and records that reflect the storage and

movement of the previously certified

gasoline to the point the previously

certified gasoline is used to produce

conventional gasoline.

* * * * *

8. Section 80.105 is amended by

adding paragraph (a)(5)(vi) to read as

follows:

§ 80.105 Reporting requirements.

(a) * * *

(5) * * *

(vi) In the case of any previously

certified gasoline used in a refinery

operation under the terms of

§ 80.101(g)(9), the following information

relative to the previously certified

gasoline when received at the refinery:

(A) Identification of the previously

certified gasoline as such;

(B) The batch number assigned by the

receiving refinery;

(C) The date of receipt; and

(D) The volume, properties and

designation of the batch.

* * * * *

9. Section 80.131 is added to Subpart

F read as follows:

§ 80.131 Agreed upon attest engagement

procedures for previously certified

gasoline.

The following are the agreed upon

procedures which must be carried out

pursuant to the attest engagement

requirements of § 80.125 where a refiner

uses previously certified gasoline under

the provisions of § 80.65(i) and

§ 80.101(g)(9):

(a) Obtain a listing of all previously

certified gasoline batches reported to

EPA by the refiner. Agree the total

volume of previously certified gasoline

from the listing of previously certified

gasoline received to the volume of

previously certified gasoline reported to

EPA.

(b) Select a sample, in accordance

with the guidelines in § 80.127, from the

listing obtained in paragraph (a) of this

section, and for each previously

certified gasoline batch selected perform

the following:

(1) Trace the previously certified

gasoline batch to the tank activity

records. Confirm that the previously

certified gasoline was included in a

batch of reformulated or conventional

gasoline produced at the refinery.

(2) Obtain the refiner’s laboratory

analysis and volume measurement for

the previously certified gasoline when

received and agree the properties and

volume listed in the corresponding

batch report submitted to the EPA to the

laboratory analysis and volume

measurements.

(3) Obtain the product transfer

documents for the previously certified

gasoline when received and agree the

designations from the product transfer

documents to designations in the

corresponding batch report submitted to

EPA (reformulated gasoline, RBOB or

conventional gasoline, and designations

regarding VOC control).

10. Section 80.340 is amended by

adding paragraph (c) to read as follows:

§ 80.340 What standards and requirements

apply to refiners producing gasoline by

blending blendstocks into previously

certified gasoline (PCG)?

* * * * *

(c) The procedures in §§ 80.65(i) and

80.101(g)(9) may be applied for

purposes of demonstrating compliance

with the sulfur standards under this

subpart.

[FR Doc. 01–31935 Filed 12–27–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 257 and 258

[FRL–7122–2]

RIN 2050–AE86

Criteria for Classification of Solid

Waste Disposal Facilities and

Practices and Criteria for Municipal

Solid Waste Landfills: Disposal of

Residential Lead-Based Paint Waste

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Withdrawal of direct final rule.

SUMMARY: Because EPA received an

adverse comment, we are withdrawing

the direct final rule for Criteria for

Classification of Solid Waste Disposal

Facilities and Practices and Criteria for

Municipal Solid Waste Landfills:

Disposal of Residential Lead-Based

Paint Waste. We published the direct

final rule on October 23, 2001 (66 FR

53535) to expressly allow residential

lead-based paint waste to be disposed of

in construction and demolition landfills

in addition to municipal solid waste

landfill units. We stated in the direct

final rule that if we received any

adverse comments by November 23,

2001, we would publish a timely notice

of withdrawal in the Federal Register.

We subsequently received an adverse

comment on the direct final rule. We

will address those comments in a

subsequent final action based on the

parallel proposal also published on

October 23, 2001 (66 FR 53566).

DATES: As of December 28, 2001, EPA

withdraws the direct final rule

published at 66 FR 53535 on October

23, 2001.

FOR FURTHER INFORMATION CONTACT: For

general information, call the RCRA Call

Center at 1–800–424–9346 or TDD 1–

800–553–7672 (hearing impaired).

Callers within the Washington

Metropolitan Area must dial 703–412–

9810 or TDD 703–412–3323 (hearing

impaired). The RCRA Call Center is

open Monday–Friday, 9 am to 4 pm,

Eastern Standard Time. For more

information on specific aspects of this

withdrawal, contact Paul Cassidy, Office

of Solid Waste (mail code 5306W), U.S.

Environmental Protection Agency, 1200

Pennsylvania Avenue, NW.,

Washington, DC 20460; (703) 308–7281,

cassidy.paul@epa.gov.

SUPPLEMENTARY INFORMATION: More

information about this action can be

found at http://www.epa.gov/epaoswer/

non-hw/muncpl/landfill/pb-paint.htm.

On October 23, 2001, EPA published in

the Federal Register at 66 FR 53535 a

direct final rule for Criteria for

Classification of Solid Waste Disposal

Facilities and Practices and Criteria for

Municipal Solid Waste Landfills:

Disposal of Residential Lead-Based

Paint Waste. This direct final rule was

to expressly allow residential lead-based

paint waste to be disposed of in

construction and demolition landfills in

addition to municipal solid waste

landfill units. On the same date, EPA

published a separate document at 66 FR

53566 to serve as the proposal to

Criteria for Municipal Solid Waste

Landfills: Disposal of Residential LeadBased Paint Waste if adverse comments

were filed. The rule was scheduled to

become effective on January 22, 2002

unless EPA received adverse comments

by November 23, 2001. We subsequently

received an adverse comment on the

direct final rule. Consequently, we are

withdrawing the direct final rule and it

will not become effective on January 22,

2002.

Dated: December 18, 2001.

Christine Todd Whitman,

Administrator.

Accordingly, the amendments and

additions to Part 257 and Part 258 are

withdrawn as of December 28, 2001.

[FR Doc. 01–31798 Filed 12–27–01; 8:45 am]

BILLING CODE 6560–50–P