[Federal Register: May 13, 1999 (Volume 64, Number 92)]
[Proposed Rules]
Page 26103-26142]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13my99-30]
Control of Air Pollution From New Motor Vehicles: Proposed Tier 2
Motor Vehicle Emissions Standards and Gasoline Sulfur Control
Requirements
[[Continued from page 26102]]
public hearings, we ask that you notify the contact person listed above
two weeks before the date of the hearing at which you plan to testify.
You should include in this notification the date of the hearing at
which the testimony will be presented, an estimate of the time required
for the presentation, and any need for audio/visual equipment. We also
suggest that sufficient copies of the statement or material to be
presented be made available to the audience. In addition, it is helpful
if the contact person receives a copy of the testimony or material
before the hearing.
The hearings will be conducted informally, and technical rules of
evidence will not apply. A sign-up sheet will be available at the
hearings for scheduling the order of testimony. At the scheduled two
day hearing, we suggest that testimony that primarily pertains to the
proposed fuel requirements be presented on the first day of the
hearings and that testimony that primarily pertains to the proposed
vehicle standards (and/or other aspects of this proposal) be presented
on the second day of the hearings. Written transcripts of the hearings
will be prepared. The official record of the hearings will be kept open
for 30 days after the hearing dates to allow submittal of supplementary
information.
VIII. Administrative Requirements
A. Administrative Designation and Regulatory Analysis
Under Executive Order 12866 (58 FR 51735, Oct. 4, 1993), the Agency
is required to determine whether this regulatory action would be
``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 any
regulatory action that is likely to result in a rule that may:
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;
<bullet> Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
<bullet> Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or,
<bullet> 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 proposal is a ``significant regulatory action'' because the
proposed vehicle standards, gasoline sulfur standards, and other
proposed regulatory provisions, if implemented, would have an annual
effect on the economy in excess of $100 million. Accordingly, a Draft
Regulatory Impact Analysis (RIA) has been prepared and is available in
the docket for this rulemaking. This action was submitted to the Office
of Management and Budget (OMB) for review as required by Executive
Order 12866. Written comments from OMB on today's action and responses
from EPA to OMB comments are in the public docket for this rulemaking.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601-612, was amended by
the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), Public Law 104-121, to ensure that concerns regarding small
entities are adequately considered during the development of new
regulations that affect them. In response to the provisions of this
statute, EPA has identified industries subject to this proposed rule
and has provided information to, and received comment from, small
entities and representatives of small entities in these industries. An
Initial Regulatory Flexibility Analysis (RFA) has been prepared by the
Agency to evaluate the economic impacts of today's proposal on small
entities.<SUP>108</SUP> The key elements of the Initial RFA include:
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\108\ The Initial RFA is contained in Chapter 8 of the
Regulatory Impact Analysis.
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<bullet> The number of affected small entities;
<bullet> The projected reporting, record keeping, and other
compliance requirements of the proposed rule, including the classes of
small entities that would be affected and the type of professional
skills necessary for preparation of the report or record;
<bullet> Other federal rules that may duplicate, overlap, or
conflict with the proposed rule; and,
<bullet> Any significant alternatives to the proposed rule that
accomplish the stated objectives of applicable statutes and that
minimize significant economic impacts of the proposed rule on small
entities.
The Agency convened a Small Business Advocacy Review Panel (the
Panel) under section 609(b) of the Regulatory Flexibility Act as added
by SBREFA. The purpose of the Panel was to collect the advice and
recommendations of representatives of small entities that could be
affected by today's proposed rule and to report on those comments and
the Panel's findings as to issues related to the key elements of the
Initial Regulatory Flexibility Analysis under section 603 of the
Regulatory Flexibility Act. The report of the Panel has been placed in
the rulemaking record.<SUP>109</SUP>
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\109\ Report of the Small Business Advocacy Panel on Tier 2
Light-Duty Vehicle and Light-Duty Truck Emission Standards, Heavy-
Duty Gasoline Engine Standards, and Gasoline Sulfur Standards,
October 1998.
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The contents of today's proposal and the Initial Regulatory
Flexibility Analysis reflect the recommendations in the Panel's report.
We summarize our outreach to small entities and our responses to the
recommendations of the Panel below. The Agency continues to be
interested in the potential impacts of the proposed rule on small
entities and welcomes additional comments during the rulemaking process
on issues related to such impacts.
1. Potentially Affected Small Businesses
The Initial Regulatory Flexibility Analysis identified small
businesses from the industries in the following table as subject to the
provisions of today's proposed rule:
Table VIII.1.--Industries Containing Small Businesses Potentially Affected by Today's Proposed Rule
----------------------------------------------------------------------------------------------------------------
Industry NAICS <SUP>a</SUP> codes SIC <SUP>b</SUP> codes Defined by SBA as a small business if: <SUP>c</SUP>
----------------------------------------------------------------------------------------------------------------
Motor Vehicle Manufacturers........ 336111 3711 <1000 employees.
336112
336120
Alternative Fuel Vehicle Converters 336311 3592 <500 employees.
541690 8931
336312 3714 <750 employees.
[[Page 26104]]
422720 5172 <100 employees.
454312 5984 <$5 million annual sales.
811198 7549
541514 8742
Independent Commercial Importers of 811112 7533 <$5 million annual sales.
Vehicles and Vehicle Components. 811198 7549
541514 8742
Petroleum Refiners................. 324110 2911 <1500 employees.
Petroleum Marketers and 422710 5171 <100 employees.
Distributors. 422720 5172
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<SUP>a</SUP> North American Industry Classification System.
<SUP>b</SUP> Standard Industrial Classification system.
<SUP>c</SUP> According to SBA's regulations (13 CFR 121), businesses with no more than the listed number of employees or
dollars in annual receipts are considered ``small entities'' for purposes of a regulatory flexibility
analysis.
The Initial RFA identified about 15 small petroleum refiners,
several hundred small petroleum marketers, and about 15 small
certifiers of covered vehicles (belonging to the other categories in
the above table) that would be subject to the proposed rule.
2. Small Business Advocacy Review Panel and the Evaluation of
Regulatory Alternatives
The Small Business Advocacy Review Panel was convened by EPA on
August 27, 1998. The Panel consisted of representatives of the Small
Business Administration (SBA), the Office of Management and Budget
(OMB), and EPA. During the development of today's proposal, EPA and the
Panel were in contact with representatives from the small businesses
that would be subject to the provisions in today's proposal. In
addition to verbal comments from industry noted by the Panel at
meetings and teleconferences, written comments were received from each
of the affected industry segments or their representatives. These
comments, alternatives suggested by the Panel to mitigate adverse
impacts on small businesses, and issues the Panel requested EPA take
additional comment on are contained in the report of the Panel and are
summarized below. Today's proposal incorporates or requests comment on
the alternatives and issues suggested by the Panel.
Fuel-Related Small Business Issues
Most of the small refiners stated that if they were required to
achieve 30 ppm sulfur levels on average with an 80 ppm per-gallon cap
without some regulatory relief, they would be forced out of business.
Thus, the Panel devoted much attention to regulatory alternatives to
address this concern. Most small refiners strongly supported delaying
mandatory compliance for their facilities. On the other hand, most
small refiners stated that a phase-in of gasoline sulfur standards
would not be helpful because it would be more cost-effective for them
to install the maximum technology required for the most stringent
sulfur levels that would ultimately be imposed.
The Society of Independent Gasoline Marketers of America (SIGMA)
commented that EPA should consider giving relief not only to refiners
that meet the SBA definition of small refiner but also to refineries
with relatively small production capacity that are owned by large
refining companies. This was because a refinery with a small production
capacity would operate essentially as an SBA-defined small refiner
would. SIGMA also noted that small gasoline marketers would be affected
by the closure of any refinery with small production capacity, whether
it was owned by a large company or an SBA-defined small refining
company.
The Panel recommended that small refiners be given a four to six
year period of relief during which less stringent gasoline sulfur
requirements would apply. The Panel also advised that EPA specifically
request comment on an alternative duration of ten years for the relief
period. Small refiners would be assigned interim sulfur standards
during this relief period based on their current individual refinery
sulfur levels. Following this relief period, small refiners would be
required to meet the industry-wide standard, although temporary
hardship relief would be available on a case-by-case basis. The
additional time provided to small refiners before compliance with the
industry-wide standard was required would allow (1) new sulfur-
reduction technologies to be proven-out by larger refiners, (2) the
costs of advanced technology units to drop as the volume of their sales
increases, (3) industry engineering and construction resources to be
freed-up, and (4) the acquisition of the necessary capital by small
refiners. The provisions that EPA is proposing for small refiners and
our requests for specific comments are found in Section IV.C.3.b.above.
The Panel concluded that adding gasoline sulfur to the fuel parameters
already being sampled and tested by gasoline marketers would likely
result in little, if any, additional burden. Therefore, the Panel did
not recommend any special provision for gasoline marketers.
Vehicle-Related Small Business Issues
Independent commercial importers of vehicles (ICIs) suggested that
the new emissions standards be phased-in with the phase-in schedule
based on the small vehicle manufacturer's annual production volume.
Secondly, the ICIs requested that small testing laboratories be
permitted to use older technology dynamometers than proposed for use by
the Agency. Finally, the ICIs commented that the certification process
should be waived for certain foreign vehicles. Small-volume vehicle
manufacturers (SVMs) stated that a phase-in of Tier-2 emissions
standards is essential. They further stated that SVMs should not be
required to comply until the end of the phase-in period, which should
not be before model year 2007. The SVMs also stated that a case-by-case
hardship relief provision should be provided for their members. SVMs
requested that a credit program be established with incentives for
larger manufacturers to make credits available to SVMs in meeting their
compliance goals.
Based on the above comments, the Panel advised that EPA consider
several
[[Page 26105]]
alternatives, individually or in combination, for the potential relief
that they might provide to small certifiers of vehicles. Our requests
for comments on these alternatives are found in Section V.A.8 above.
The Initial Regulatory Flexibility Analysis evaluates the financial
impacts of the proposed vehicle standards and fuel controls on small
entities. EPA believes that the regulatory alternatives considered in
today's document will provide substantial relief to small business from
the potential adverse economic impacts of complying with today's
proposed rule.
C. Paperwork Reduction Act
The information collection requirements (ICR) in this proposed rule
have been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Agency may not conduct or sponsor an information collection, and a
person is not required to respond to a request for information unless
the information collection request displays a currently valid OMB
control number. The OMB control numbers for EPA's regulations are
listed in 40 CFR part 9 and 48 CFR chapter 15.
The information collection requirements associated with today's
proposed rule belong to two distinct categories: (1) Those that pertain
to the proposed amendments to the vehicle certification requirements,
and (2) those that pertain to the proposed requirements for the control
of gasoline sulfur content. The information collection requirements are
contained in two separate ICR documents according to the category to
which they belong.<SUP>110</SUP>
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\110\ The information collection requirements associated with
the proposed amendments to the requirements for vehicle
certification are contained in the Information Collection Request
entitled ``Amendments to the Reporting and Recordkeeping
Requirements for Motor Vehicle Certification Under the Proposed Tier
2 Rule''. The information collection requirements associated with
the proposed gasoline sulfur control program are contained in the
Information Collection Request entitled ``Recordkeeping and
Reporting Requirements Regarding the Sulfur Content of Motor Vehicle
Gasoline Under the Tier 2 Rule''.
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The Paperwork Reduction Act stipulates that ICR documents estimate
the burden of activities that would be required of regulated parties
within a three year time period. Consequently, the ICR documents that
accompany today's proposed rule provide burden estimates for the
activities that would be required under the first three years of the
proposed program.
ICRs Pertaining to the Proposed Amendments to Vehicle Certification
Requirements
The information collection burden to vehicle certifiers associated
with the proposed amendments to the vehicle certification requirements
in today's document pertain to the proposed fleet-average
NO<INF>X</INF> standard and emission credits provisions. These proposed
requirements are very similar to those under the voluntary National Low
Emission Vehicle (NLEV) program, which includes a fleet-average
standard for nonmethane hydrocarbon organic gases (NMOG) and associated
emission credits provisions. The hours spent annually by a given
vehicle certifier on the information collection activities associated
with the proposed recordkeeping and reporting requirements depends upon
certifier-specific variables, including: the scope/variety of their
product line as reflected in the number of test groups and strategy
used to comply with the proposed fleet-average NO<INF>X</INF> standard,
the extent they utilize the proposed emissions credits provisions, and
whether they opted into the NLEV program. Vehicle certifiers that use
the proposed provisions for early banking of emission credits would be
subject to the associated information collection requirements as early
as September 1, 2000.<SUP>111</SUP> All vehicle certifiers would be
required to comply with the information collection requirements
associated with the amendments to the vehicle certification program
beginning September 1, 2003.<SUP>112</SUP> The ICR document for the
proposed amendments to the vehicle certification program provides
burden estimates for all of the associated information collection
requirements. The total information collection burden associated with
the proposed amendments to the vehicle certification requirements is
estimated at 8,361 hours and $564,172 annually for the certifiers of
light-duty vehicles and light-duty trucks.
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\111\ These ICRs would become effective on the date that model
year 2001 vehicles are introduced into commerce. EPA assumes that
September 1, 2000 is the earliest date that model year 2001 vehicles
will be marketed.
\112\ Assuming model year 2004 vehicles are introduced into
commerce on this date.
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ICRs Pertaining to the Proposed Requirements for Gasoline Sulfur
Control
The information collection burden to gasoline refiners, importers,
marketers, distributors, retailers and wholesale purchaser-consumers
(WPCs), and users of research and development (R&D) gasoline pertain to
the proposed gasoline sulfur control requirements. The scope of the
recordkeeping and reporting requirements for each regulated party, and
therefore the cost to that party, reflects the party's opportunity to
create, control, or alter the sulfur content of gasoline. As a result,
refiners and importers would have significant requirements, which are
necessary both for their own tracking, and that of downstream parties,
and for EPA enforcement. Parties downstream from the gasoline
production or import point, such as retailers, would have minimal
burdens that are primarily associated with the transfer and retention
of product transfer documents. Many of the reporting and recordkeeping
requirements for refiners and importers regarding the sulfur content of
gasoline on which the proposed rule would rely currently exist under
EPA's Reformulated Gasoline (RFG) and Anti-Dumping programs. The ICR
for the RFG program covered start up costs associated with reporting
gasoline sulfur content under the RFG program. Consequently, much of
the cost of the information collection requirements under the proposed
gasoline sulfur control program has already been accounted for under
the RFG program ICR.
The information collection requirements under the proposed sulfur
control program would evolve over time as the program is phased-in.
Beginning July 1, 2000, certain requirements would apply to parties
that voluntarily opt to generate credits for early sulfur reduction
under the proposed average banking and trading (ABT) provisions. Many
of the requirements would not become applicable until the beginning of
the sulfur control program on October 1, 2003, when all refiners would
be required to meet the proposed standards. The information collection
requirements under the proposed program would become stable after
January 1, 2008, when the optional small refiner provisions would
expire.<SUP>113</SUP>
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\113\ A refiner could petition EPA for an extension of the small
refiner provisions beyond January 1, 2008, based on hardship.
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The ICR document for the proposed gasoline sulfur control program
provides burden estimates for the activities that would be required
under the first three years of the sulfur control program, from July 1,
2000 through June 30, 2003. The burden associated with activities that
would be required after June 30, 2003 will be estimated in later ICRs.
The initial ICR for the gasoline sulfur control program, however, does
[[Page 26106]]
provide a qualitative characterization of all of the required
activities and associated burdens for the various regulated parties as
they develop, and until they become stable after January 1, 2008.
We estimate that the total burden of the information collection
requirements that would be applicable during the first three years of
the proposed gasoline sulfur control program would be 42,479 hours and
$2,149,865 annually. The estimated annual burden for the various
regulated entities under the initial three year period of the proposed
gasoline sulfur control program are as follows:
--Refiners: 31,231 hours, $1,879,822
--Importers: 40 hours, $2,067
--Pipelines: 85 hours, $2,785
--Terminals: 1,700 hours, $55,700
--Truckers: 3,333 hours, $118,000
--Retailers/WPCs: 6,087 hours, $ 91,298
--R&D Gasoline Users: 3 hours, $193
Total Burden of the Proposed ICRs
We estimate that the total burden of the recordkeeping and
reporting requirements associated with the proposed vehicle
certification and gasoline sulfur control requirements would be at
50,840 hours and $2,714,037 annually over the first three years that
these requirements would be in effect.
Comments on EPA's Burden Estimates
We request comments on the Agency's need for the information
proposed to be collected, the accuracy of our estimates of the
associated burdens, and any suggested methods for minimizing the
burden, including the use of automated techniques for the collection of
information. Comments on the ICR should be sent to: the Office of
Policy, Regulatory Information Division, U.S. Environmental Protection
Agency (Mail Code 2136), 401 M Street, SW., Washington, DC 20460,
marked ``Attention: Director of OP;'' and to the Office of Information
and Regulatory Affairs, Office of Management and Budget, 725 17th
Street, NW., Washington, DC 20503, marked ``Attention: Desk Officer for
EPA.'' Include the ICR number in any such correspondence. OMB is
required to make a decision concerning the ICR between 30 and 60 days
after publication of a proposed rule. Therefore, comments to OMB on the
ICR are most useful if received within 30 days of the publication date
of today's document. Any comments from OMB and from the public on the
information collection requirements in today's proposal will be placed
in the docket and addressed by EPA in the final rule.
Copies of the ICR documents can be obtained from Sandy Farmer,
Office of Policy, Regulatory Information Division, U.S. Environmental
Protection Agency (Mail Code 2137), 401 M Street, SW., Washington, DC
20460, or by calling (202) 260-2740. 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.
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 cost-effective, or least burdensome
alternative if EPA provides an 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 proposed 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 the proposed rule would significantly
or uniquely affect small governments.
EPA has determined that this rule contains federal mandates that
may result in expenditures of more than $100 million to the private
sector in any single year. EPA believes that the proposed program
represents the least costly, most cost-effective approach to achieve
the air quality goals of the proposed rule. The cost-benefit analysis
required by the UMRA is discussed in Section IV.D. above and in the
Draft RIA. See the ``Administrative Designation and Regulatory
Analysis'' section in today's preamble (VIII.A.) for further
information regarding these analyses.
2. Executive Order 12875: Enhancing Intergovernmental Partnerships
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a state, local
or Tribal government, unless the federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected state, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of state, local and Tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's proposed rule would not create a mandate on state, local or
Tribal governments. The proposed rule would not impose any enforceable
duties on these entities. Accordingly, the requirements of section 1(a)
of Executive Order 12875 do not apply to this rule.
3. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian Tribal governments, and that imposes substantial
direct compliance
[[Page 26107]]
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 proposed motor vehicle
emissions, motor vehicle fuel, and other related 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 proposed rule discussed in the other sections of today's
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.
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.
This proposed rule references technical standards adopted by the
Agency through previous rulemakings. No new technical standards are
proposed in today's document. The standards referenced in today's
proposed rule involve the measurement of gasoline fuel parameters and
motor vehicle emissions. The measurement standards for gasoline fuel
parameters referenced in today's proposal are all voluntary consensus
standards. The motor vehicle emissions measurement standards referenced
in today's proposed rule are government-unique standards that were
developed by the Agency through previous rulemakings. These standards
have served the Agency's emissions control goals well since their
implementation and have been well accepted by industry. EPA is not
aware of any voluntary consensus standards for the measurement of motor
vehicle emissions. Therefore, the Agency proposes to use the existing
EPA-developed standards found in 40 CFR part 86 for the measurement of
motor vehicle emissions.
EPA welcomes comments on this aspect of the proposed rulemaking
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such
standards should be used in this regulation.
F. Executive Order 13045: Children's Health Protection
Executive Order (E.O.) 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 E.O. 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 proposed rule is subject to the Executive Order because it is
an economically significant regulatory action as defined by E.O. 12866
and it concerns in part an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
This rulemaking will achieve significant reductions of various
emissions from passenger cars and light trucks, primarily
NO<INF>X</INF>, but also NMOG and PM. These pollutants raise concerns
regarding environmental health or safety risks that EPA has reason to
believe may have a disproportionate effect on children, such as impacts
from ozone, PM and certain toxic air pollutants. See Section III of
this proposal and the RIA for a further discussion of these issues.
The effects of ozone and PM on children's health were addressed in
detail in EPA's rulemaking to establish the NAAQS for these pollutants,
and EPA is not revisiting those issues here. EPA believes, however,
that the emission reductions from the strategies proposed in this
rulemaking will further reduce air toxics and the related adverse
impacts on children's health. EPA will be addressing the issues raised
by air toxics from motor vehicles and their fuels in a separate
rulemaking that EPA will initiate in the near future under section
202(l) of the Act. That rulemaking will address the emissions of
hazardous air pollutants from vehicles and fuels, and the appropriate
level of control of HAPs from these sources.
In this proposal, EPA has evaluated several regulatory strategies
for reductions in emissions from passenger cars and light trucks. (See
sections IV, V, and VI of this proposal as well as the RIA.) For the
reasons described there, EPA believes that the strategies proposed are
preferable under the Clean Air Act to other potentially effective and
reasonably feasible alternatives considered by the Agency, for purposes
of reducing emissions from these sources as a way of helping areas
achieve and maintain the NAAQS for ozone and PM. Moreover, EPA believes
that it has selected for proposal the most stringent and effective
control reasonably feasible at this time, in light of the technology
and cost requirements of the Act.
IX. Statutory Provisions and Legal Authority
Statutory authority for the vehicle controls proposed in today's
document can be found in sections 202, 206, 207, 208, and 301 of the
Clean Air Act (CAA), as amended, 42 U.S.C. sections 7521, 7525, 7541,
and 7601.
Statutory authority for the fuel controls proposed in today's
document comes from section 211(c) of the CAA, which allows EPA to
regulate fuels that either contribute to air pollution which endangers
public health or welfare or which impair emission control equipment.
Both criteria are satisfied for
[[Page 26108]]
the proposed gasoline sulfur controls. Additional support for the
procedural and enforcement-related aspects of the fuel's controls in
today's proposal, including the proposed record keeping requirements,
comes from sections 114(a) and 301(a) of the CAA.
List of Subjects
40 CFR Part 80
Environmental protection, Administrative practice and procedure,
Fuel Additives, Gasoline, Imports, Labeling, Motor vehicle pollution,
Penalties, Reporting and recordkeeping requirements.
40 CFR Part 85
Environmental protection, Confidential business information,
Imports, Labeling, Motor vehicle pollution, Penalties, Reporting and
recordkeeping requirements, Research, Warranties.
40 CFR Part 86
Environmental protection, Administrative practice and procedure,
Confidential business information, Labeling, Motor vehicle pollution,
Penalties, Reporting and recordkeeping requirements.
Dated: May 1, 1999.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, we propose to amend
parts 80, 85 and 86 of title 40, of the Code of Federal Regulations 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 80.2 is amended by removing and reserving paragraph (aa)
and revising paragraphs (h), (s), (w) and (gg) to read as follows:
Sec. 80.2 Definitions.
* * * * *
(h) Refinery means any facility, including but not limited to, a
plant, tanker truck, or vessel where gasoline or diesel fuel is
produced, including any facility at which blendstocks are combined to
produce gasoline or diesel fuel, or at which blendstock is added to
gasoline or diesel fuel.
* * * * *
(s) Gasoline blending stock, blendstock, or component means any
liquid compound which is blended with other liquid compounds to produce
gasoline.
* * * * *
(w) Previously certified gasoline means 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.
* * * * *
(aa) [Reserved]
* * * * *
(gg) Batch of gasoline means a quantity of gasoline that is
homogeneous with regard to those properties that are specified for
conventional or reformulated gasoline.
* * * * *
3. Section 80.46 is amended by revising paragraphs (a) and (h) to
read as follows:
Sec. 80.46 Measurement of reformulated gasoline fuel parameters.
(a) Sulfur. Sulfur content must be determined by using one of the
following methods:
(1) Primary method. American Society for Testing and Materials
(ASTM) standard method D-2622-98, entitled ``Standard Test Method for
Sulfur in Petroleum Products by Wavelength Dispersive X-ray
Fluorescence Spectrometry.''
(2) Alternative method. ASTM D-5453-93, entitled ``Standard Test
Method for Determination of Total Sulfur in Light Hydrocarbons, Motor
fuels and Oils by Ultraviolet Fluorescence.''
* * * * *
(h) Incorporations by reference. ASTM standard methods D-2622-98,
D-5453-93, D-3606-92, D-1319-93, D-4815-93, and D-86-90 with the
exception of the degrees Fahrenheit figures in Table 9 of D-86-90, are
incorporated by reference. These incorporations by reference were
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 obtained from the
American Society for Testing and Materials, 100 Barr Harbor Dr., West
Conshohocken, PA 19428. Copies may be inspected at the Air Docket
Section (LE-131), room M-1500, U.S. Environmental Protection Agency,
Docket No. A-97-03, 401 M Street, SW., Washington, DC 20460, or at the
Office of the Federal Register, 800 North Capitol Street, NW., Suite
700, Washington, DC.
4. Subpart H is added to read as follows:
Subpart H--Gasoline Sulfur
General Information
Sec.
80.180 What are the implementation dates for the gasoline sulfur
program?
80.185 [Reserved]
80.190 Am I required to register with EPA under the sulfur program?
Gasoline Sulfur Standards
80.195 What are the gasoline sulfur standards for refiners and
importers?
80.200 What gasoline is subject to the sulfur standards?
80.205 How is compliance with the annual average sulfur level
determined?
80.210 What sulfur standards apply to gasoline downstream from
refineries and importers?
80.215 What requirements apply to oxygenate blenders?
80.220 [Reserved]
Small Refiner Provisions
80.225 What is the definition of a small refiner?
80.230 Who is not eligible for the small refiner provisions?
80.235 How does a refiner obtain approval as a small refiner?
80.240 What are the small refiner gasoline sulfur standards?
80.245 How does small refiner apply for a sulfur baseline?
80.250 How is the small refiner sulfur baseline determined?
80.255 [Reserved]
80.260 What are the procedures and requirements for obtaining a
hardship extension?
80.265 How will the EPA approve or disapprove of my hardship
extension application?
80.270-80.275 [Reserved]
Sulfur Averaging, Banking, Trading--General Information
80.280 What is the sulfur Averaging, Banking and Trading (ABT)
program?
80.285 Who may participate in the sulfur ABT program?
Sulfur ABT Program--Baseline
80.290 How do I apply for a sulfur baseline?
80.295 How is a refinery or importer sulfur baseline determined?
80.300 What if I did not produce or import gasoline during 1997 or
1998?
Sulfur ABT Program--Credit Generation
80.305 How are credits generated during the time period 2001
through 2003?
80.310 How are credits generated beginning in 2004?
Sulfur ABT Program--Credit Use
80.315 How are credits used?
80.320 What are the reporting requirements for the sulfur ABT
program?
80.325 [Reserved]
Sampling, Testing and Retention Requirements for Refiners and Importers
80.330 What are the sampling and testing requirements for refiners
and importers?
[[Page 26109]]
80.335 What gasoline sample retention requirements apply to
refiners and importers?
80.340 What alternative standards, sampling and testing
requirements apply to refiners producing gasoline by blending
blendstocks into previously certified gasoline (PCG)?
80.345 [Reserved]
80.350 What alternative sulfur standards, sampling and testing
requirements apply to importers who transport gasoline by truck?
80.355 [Reserved]
Recordkeeping and Reporting Requirements
80.360 What are the product transfer document requirements?
80.365 What records must be kept?
80.370 What are the annual reporting requirements?
Exemptions
80.375 What requirements apply to California gasoline?
80.380 What are the requirements for obtaining an exemption for
gasoline used for research, development or testing purposes?
Violation Provisions
80.385 What acts are prohibited under the gasoline sulfur program?
80.390 What evidence may be used to determine compliance with the
prohibitions and requirements of this subpart and liability for
violations of this subpart?
80.395 Who is liable for violations under the gasoline sulfur
program?
80.400 What defenses apply to persons deemed liable for a violation
of a prohibited act?
80.405 What penalties am I subject to?
Provisions for Foreign Refiners With Individual Sulfur Baselines
80.410 What are the additional requirements for gasoline produced
at foreign refineries having individual small refiner sulfur
baselines?
Attest Engagements
80.415 What are the attest engagement requirements for gasoline
sulfur compliance?
Subpart H--Gasoline Sulfur
General Information
Sec. 80.180 What are the implementation dates for the gasoline sulfur
program?
(a) July 1, 2000. Deadline for submittal of sulfur baseline
determinations for averaging, banking and trading program per
Sec. 80.290.
(b) June 1, 2002. Deadline for small refiner applications per
Sec. 80.235.
(c) October 1, 2003. Per-gallon caps apply, per Sec. 80.195 or
Sec. 80.240, as applicable.
(d) January 1, 2004. Refinery and importer average standards apply
and corporate pool average gasoline standards apply, per Sec. 80.195.
Small refinery average standards apply per Sec. 80.240.
(e) February 1, 2004. Downstream caps apply, per Sec. 80.210.
(f) January 1, 2005. Corporate pool average standards and per-
gallon caps are made more stringent per Sec. 80.195.
(g) January 1, 2006. Corporate pool average gasoline standards no
longer apply. Per-gallon caps are made more stringent per Sec. 80.195.
(h) June 30, 2007. Deadline for small refiner hardship extension
applications per Sec. 80.260.
(i) January 1, 2008. With the exception of gasoline produced by
small refiners with approved hardship extensions, every batch of
gasoline is subject to the 80 ppm cap. With the exception of small
refiners with approved hardship extensions, refinery and importer
average gasoline sulfur standards apply, per Sec. 80.195.
(j) January 1, 2010. Every batch of gasoline is subject to the 80
ppm cap. Refinery and importer average gasoline sulfur standards apply,
per Sec. 80.195.
Sec. 80.185 [Reserved]
Sec. 80.190 Am I required to register with EPA under the sulfur
program?
(a) Each refiner and importer must register with EPA according to
the procedures specified in this section.
(b) Refiners and importers subject to the standards in Sec. 80.195
who are registered by EPA under Sec. 80.76(a) are deemed to be
registered for purposes of this subpart. Refiners and importers subject
to the standards in Sec. 80.195 who are not registered by EPA under
Sec. 80.76(a) must provide to EPA the information required by
Sec. 80.76 by November 1, 2003 or not later than three months in
advance of the first date that such person produces or imports
gasoline, whichever is later.
(c) Refiners and individual refineries that are registered by EPA
under Sec. 80.76(a) and have established small refiner individual
refinery standards status under Sec. 80.235(f) are deemed to be
registered for purposes of this subpart. Refiners having any refinery
subject to the standards in Sec. 80.240 who are not registered by EPA
under Sec. 80.76(a) must provide to EPA the information required by
Sec. 80.76 by June 1, 2002.
(d) Any refiner or importer who plans to generate credits in any
year prior to 2004 must register with us no later than November 1 of
the year prior to the first year of credit generation.
Gasoline Sulfur Standards
Sec. 80.195 What are the gasoline sulfur standards for refiners and
importers?
(a)(1) The gasoline sulfur standards for refiners and importers,
excluding small refiners subject to the standards at Sec. 80.240, are
shown in Table 1 of this section.
(2) The averaging period is January 1 through December 31 of each
year. For each averaging period, a refiner's or importer's average
sulfur level must be no greater than the levels specified in Table 1 of
this section, as follows:
Table 1.--Gasoline Sulfur Standards
----------------------------------------------------------------------------------------------------------------
For the averaging period beginning
--------------------------------------------------------------
January 1, 2004 January 1, 2005 January 1, 2006+
----------------------------------------------------------------------------------------------------------------
Refinery or Importer Average, ppm................ 30 30 30
Corporate Pool Average, ppm...................... 120 90 (<SUP>b</SUP>)
Per-Gallon Cap, ppm.............................. <SUP>a</SUP>300 180 80
----------------------------------------------------------------------------------------------------------------
<SUP>a</SUP> This per-gallon cap standard must be met beginning October 1, 2003.
<SUP>b</SUP> Not applicable.
(b) The refinery or importer average gasoline sulfur standard.
(1) The refinery or importer average gasoline sulfur standard is
the maximum average sulfur level, measured in parts per million (ppm),
allowed for the combined reformulated and conventional gasoline
produced at a refinery or imported by an importer
[[Page 26110]]
during each calendar year starting January 1, 2004.
(2) The annual average sulfur level is calculated as specified in
section Sec. 80.205.
(3) The refinery or importer average gasoline sulfur standard may
be met using credits according to Sec. 80.315, or any other potential
sources of credits or allowances, if applicable.
(c) The corporate pool average gasoline sulfur standard applicable
in 2004 and 2005 is the maximum average sulfur level, in ppm, allowed
for a refiner's or importer's combined reformulated and conventional
gasoline production from all of a refiner's refineries and all gasoline
imported by an importer in a calendar year. The corporate pool average
is determined by volume-weighting each refinery's and importer's actual
annual average sulfur levels by their respective production or import
volumes, as specified in Sec. 80.205.
(d) The per-gallon cap standard specified in Table 1 of this
section for the averaging period beginning January 1, 2004, must be met
beginning October 1, 2003.
Sec. 80.200 What gasoline is subject to the sulfur standards?
All gasoline is subject to the standards in this subpart, with the
following exceptions:
(a) Gasoline that is used to fuel aircraft, racing vehicles or
racing boats that are used only in sanctioned racing events, provided
that:
(1) Product transfer documents associated with such gasoline, and
any pump stand from which such gasoline is dispensed, identify the
gasoline either as gasoline that is restricted for use in aircraft, or
as gasoline that is restricted for use in racing motor vehicles or
racing boats that are used only in sanctioned racing events;
(2) The gasoline is completely segregated from all other gasoline
throughout production, distribution and sale to the ultimate consumer;
and
(3) The gasoline is not made available for use as motor vehicle
gasoline, or dispensed for use in motor vehicles.
(b) California gasoline as defined in Sec. 80.81(a)(2).
(c) Gasoline that is exported for sale outside the U.S.
Sec. 80.205 How is compliance with the annual average sulfur level
determined?
(a) The refinery or importer average gasoline sulfur level is
calculated as follows:
[GRAPHIC] [TIFF OMITTED] TP13MY99.005
Where:
S<INF>a</INF> = The refinery or importer annual average sulfur value.
V<INF>i</INF> = The volume of gasoline produced or imported in batch i.
S<INF>i</INF> = The sulfur content of batch i as determined in
accordance with the requirements of Sec. 80.330.
n = The number of batches of gasoline produced or imported during the
averaging period.
i = Individual batch of gasoline produced or imported during the
averaging period.
(b) A refiner or importer may include oxygenate added downstream
from the refinery or import facility when calculating the sulfur
content, provided the following requirements are met:
(1) For oxygenate added to conventional gasoline, the refiner or
importer must comply with the requirements of Sec. 80.101(d)(4)(ii).
(2) For oxygenate added to RBOB, the refiner or importer must
comply with the requirements of Sec. 80.69(a).
(c) Refiners and importers must exclude from compliance
calculations all of the following:
(1) Gasoline that was not produced at the refinery or was not
imported by the importer (or that was imported as Certified Sulfur-
FRGAS).
(2) Blending stocks or gasoline that have been included in another
refiner's compliance calculations.
(3) Gasoline exempted from standards under Sec. 80.200.
(d) Compliance deficit. A refinery or importer may exceed the
refinery or importer annual average sulfur standard specified in
Sec. 80.195 under the following conditions:
(1) In the calendar year following the year the standard is not
met, the refinery or importer achieves compliance with the refinery or
importer annual average sulfur standard specified in Sec. 80.195; and
(2) In the calendar year following the year the standard is not
met, and after achieving compliance with the refinery or importer
annual average sulfur standard specified in Sec. 80.195, the refinery
or importer must have sufficient additional credits and/or actual
reduction in sulfur levels to equal the compliance deficit of the
previous year.
Sec. 80.210 What sulfur standards apply to gasoline downstream from
refineries and importers?
(a) Definition. S-RGAS means gasoline produced by a domestic
refinery that is subject to the standards in Sec. 80.240, and to
Certified Sulfur-FRGAS, as defined in Sec. 80.410, except that no batch
of gasoline may be classified as S-RGAS if the actual sulfur content is
less than the national refinery cap standard specified in Sec. 80.195.
(b) The sulfur cap standard for gasoline at any point in the
gasoline distribution system downstream from refineries and import
facilities, including gasoline at facilities of distributors, carriers,
retailers and wholesale purchaser-consumers, is as follows:
(1) The following standards apply to gasoline except where product
transfer documents indicate the presence of any S-RGAS:
------------------------------------------------------------------------
National
Downstream
During the Period Sulfur Cap
Standard
(ppm)
------------------------------------------------------------------------
February 1, 2004, through January 31, 2005................ <ls-thn-eq>3
26
February 1, 2005, through January 31, 2006................ <ls-thn-eq>2
01
February 1, 2006, and thereafter.......................... <ls-thn-eq>9
5
------------------------------------------------------------------------
(2) For gasoline, including a mixture of gasoline batches from
different refineries, where product transfer documents indicate the
presence of any S-RGAS, the downstream cap standard for the gasoline is
the highest downstream cap standard applicable to any gasoline in the
mixture, except that if a test result indicates the sulfur content of
the mixture is less than or equal to the applicable national downstream
cap standard, the gasoline is subject to the national downstream cap
standard.
Sec. 80.215 What requirements apply to oxygenate blenders?
Oxygenate blenders, as defined by Sec. 80.2(mm), are subject to the
requirements of this subpart except for the reporting requirements of
Sec. 80.370 and the requirements under Sec. 80.330 to sample and test
each batch of gasoline produced.
Sec. 80.220 [Reserved]
Small Refiner Provisions
Sec. 80.225 What is the definition of a small refiner?
(a) A small refiner is defined as any person, as defined by 42
U.S.C. 7602(e), which, as of January 1, 1999:
[[Page 26111]]
(1) Produced gasoline at a refinery by processing crude oil through
refinery processing units; and
(2)(i) Employed no more than 1500 people, including subsidiaries,
and in the case of a refiner who operates a refinery as a joint venture
with other refiners, including the total number of employees of all
corporate entities in the venture; or
(ii) Is a subsidiary, in which case the employees of the parent
company and any wholly-owned subsidiaries of the parent company must be
included in determining if the 1,500 employee limit is exceeded.
(b) This definition applies to domestic and foreign refiners.
(c) If, without merger with or acquisition of another business
unit, a company with approved small refiner status exceeds 1500
employees after January 1, 1999, it will be considered a small refiner
for the duration of the small refiner program.
(d) A refiner that was not in operation as of January 1, 1999, that
begins operation before January 1, 2001, and meets all other criteria
of this subpart, may apply for small refiner status according to
Sec. 80.235.
Sec. 80.230 Who is not eligible for the small refiner provisions?
(a) The following are not eligible for the small refiner
provisions:
(1) Refineries built or started up after January 1, 1999, unless
the criteria of Sec. 80.225(d) are met; or
(2) Persons that employ more than 1500 people on January 1, 1999,
but employ fewer than 1500 people after that date; or
(3) Importers; or
(4) Refiners employing 1500 or fewer people which were part of a
larger corporation as of January 1, 1999 but subsequently were sold to
form a new company.
(b) Disqualification as a small refiner. (1) Refiners who qualify
as small under Sec. 80.225, and subsequently employ more than 1500
people as a result of merger with or acquisition of another entity, are
disqualified as small refiners and must meet the standards in
Sec. 80.195 beginning on January 1 of the first calendar year following
such merger or acquisition.
(2) If a small refiner is no longer eligible for small refiner
status or elects to change the status of any refinery operating under a
small refiner individual refinery standard to subject the refinery to
the standards in Sec. 80.195, the refiner must notify EPA in writing
within 20 days of the disqualifying event or, in the case of a
voluntary election, no later than November 15 prior to the year that
the change will occur. Each refinery of the small refiner no longer
eligible for small refiner status must meet the standards inSec. 80.195
for the next averaging period.
Sec. 80.235 How does a refiner obtain approval as a small refiner?
(a) A refiner must apply to EPA for small refiner status by June 1,
2002.
(b) Applications for small refiner status must be sent to: U.S.
EPA--FED, Gasoline Sulfur Small Refiner Status, 2000 Traverwood, Ann
Arbor, MI 48105.
(c) The small refiner status application must contain the following
information:
(1) A listing of the name and address of each location where any
employee of the refiner worked on January 1, 1999, the total number of
employees at each location, and the type of business activities carried
out at each location.
(2) A letter signed by the president, chief operating or chief
executive officer of the company, or his/her designee, stating that the
information contained in the application is true to the best of his/her
knowledge.
(3) Name, address, phone number, facsimile number and E-mail
address of a corporate contact person.
(d) For joint ventures, the total employee count includes the
combined employee count of all corporate entities in the venture.
(e) For government-owned refiners, the total employee count
includes all government employees.
(f) Refiners who apply for small refiner status based on the number
of employees after January 1, 1999 but before January 1, 2001, as
permitted under Sec. 80.225(d), must comply with paragraphs (a) through
(c) of this section.
(g) EPA will notify a refiner of approval or disapproval of small
refiner status by letter.
(1) If approved, EPA will notify the refiner of each refinery's
approved baseline, refinery per-gallon cap, and downstream per-gallon
cap standard under Sec. 80.210.
(2) If disapproved, the refiner must comply with the standards in
Sec. 80.195.
Sec. 80.240 What are the small refiner gasoline sulfur standards?
(a) The gasoline sulfur standards for an approved small refiner
depend on the refinery baseline sulfur level, and are shown in Table 1
of this section, as follows:
Table 1.--Gasoline Sulfur Standards for Approved Small Refiners
------------------------------------------------------------------------
Refinery annual average and per-
gallon (``cap'') sulfur
Refinery baseline sulfur level (ppm) standards (ppm) that apply
during 2004-2007
------------------------------------------------------------------------
0 to 30............................... Refinery average: 30.
Cap: 80.
31 to 80.............................. Refinery average: no
requirement.
Cap: 80.
81 to 200............................. Refinery average: baseline
level.
Cap: Factor of 2 above the
baseline.
201 and above......................... Refinery average: 200 ppm or 50%
of baseline, whichever is
higher, but in no event greater
than 300 ppm.
Cap: Factor of 1.5 above
baseline level.
------------------------------------------------------------------------
(b) The average standards specified in Table 1 of this section
apply to the combined reformulated and conventional gasoline produced
at a refinery.
(c) The refinery average sulfur standards specified in Table 1 of
this section must be met on an annual calendar year basis for each
refinery owned by a small refiner.
(d) The per-gallon cap standards specified in Table 1 of this
section for the averaging period beginning January 1, 2004 must be met
beginning October 1, 2003.
(e) Volume limitation. (1) The refinery average standards specified
in Table 1 of this section apply to the volume of gasoline produced by
a small refiner's refinery up to the lesser of:
(i) 105% of the baseline gasoline volume; or
(ii) The volume of gasoline produced at that refinery during the
average period by processing crude oil.
(2) If a refiner exceeds the volume limitation in paragraph (e)(1)
of this section during the calendar year, the annual average sulfur
standard is calculated as follows:
[GRAPHIC] [TIFF OMITTED] TP13MY99.007
Where:
S<INF>sr</INF> = Small refiner annual average sulfur standard.
V<INF>b</INF> = Applicable volume under paragraph (e)(1) of this
section.
V<INF>a</INF> = Averaging period gasoline volume.
S<INF>b</INF> = Small refiner sulfur baseline.
(3) The applicable volume from paragraph (e)(1) of this section
excludes volumes of gasoline blending stocks used in the small
refinery's gasoline
[[Page 26112]]
production that were received from external sources, unless such
blending stocks are substantially transformed through the refinery's
processing operations and have not been included in any other refiner's
or importer's compliance determination.
(4) The applicable per-gallon cap standards in Table 1 of this
section apply to all gasoline produced by small refiners.
(f) Withdrawal of small refiner status. Refiners that receive
notification from EPA under Sec. 80.235(f) of their qualification as
small refiners will have that status withdrawn if EPA finds that the
refiner provided false or inaccurate information on its application for
small refiner status. Such refiners will be subject to the standards in
Sec. 80.195 beginning on January 1, 2004.
Sec. 80.245 How does a small refiner apply for a sulfur baseline?
(a) A refiner seeking small refiner status must establish an
individual sulfur baseline for every refinery covered by the small
refiner status application by June 1, 2002
(1) If a sulfur baseline was submitted for the refinery under
Sec. 80.290, the refiner does not need to resubmit that information.
(2) If no sulfur baseline was previously submitted, the refiner
must submit a sulfur baseline for every refinery according to
Sec. 80.250.
(b) The sulfur baselines must be submitted to the address specified
in Sec. 80.235(b).
Sec. 80.250 How is the small refiner sulfur baseline determined?
(a) The small refiner sulfur baseline is determined as follows:
[GRAPHIC] [TIFF OMITTED] TP13MY99.008
Where:
S<INF>b</INF> = Sulfur baseline value.
V<INF>i</INF> = Volume of gasoline batch i.
S<INF>i</INF> = Sulfur content of batch i.
n = Total number of batches of conventional gasoline produced from
January 1, 1997 through December 31, 1998.
i = Individual batch of conventional gasoline produced from January 1,
1997 through December 31, 1998.
(b) Foreign small refiners must also comply with the baseline
establishment requirements in Sec. 80.410(b).
(c) An approved small refiner may not aggregate the gasoline
volumes and sulfur levels of its refineries for compliance with the
applicable standards specified in Sec. 80.240.
(d) If at any time a small refinery baseline is determined to be
incorrect, the corrected baseline applies ab initio and the annual
average standards and cap standards are deemed to be those applicable
under the corrected information.
(e) If a small refiner does not have the data specified in
paragraph (a) of this section to generate a sulfur baseline, or if any
refineries owned by that refiner were not operating in 1997-1998, EPA
will assign each refinery a baseline average sulfur level of 150 ppm
sulfur and a baseline CG volume equivalent to the annual gasoline
volume capability of the refinery at the time it applies for small
refiner status.
Sec. 80.255 [Reserved].
Sec. 80.260 What are the procedures and requirements for obtaining a
hardship extension?
(a) An approved small refiner may apply to EPA for a hardship
extension of the small refiner standards for calendar years 2008 and
2009. The application must be submitted no later than June 30, 2007 to
U.S. EPA-FED, Small Refiner Hardship Extension, 2000 Traverwood, Ann
Arbor, MI 48105.
(b) The application must provide a detailed discussion regarding
the inability of the refinery to produce gasoline meeting the
requirements of Sec. 80.195. Such an application must include, at a
minimum, the following information:
(1) A detailed analysis of the reasons the refinery is unable to
produce gasoline meeting the requirements of Sec. 80.195 in 2008,
including costs, specification of equipment still needed, potential
equipment suppliers, and efforts already completed to obtain the
necessary equipment;
(2) If unavailability of equipment is part of the reason for the
inability to comply, a discussion of other options considered, and the
reasons these other options are not feasible;
(3) If relevant, a demonstration that a needed or lower cost
technology is immediately unavailable, but will be available in the
near future, and full information regarding when and from what sources
it will be available;
(4) Schematic drawings of the refinery configuration as of January
1, 1997 and as of the date of the hardship extension application, and
any planned future additions or changes;
(5) If relevant, a demonstration that a temporary unavailability
exists of engineering or construction resources necessary for design or
installation of the needed equipment;
(6) If sources of crude oil lower in sulfur than what the refiner
is currently using are available, full information regarding the
availability of these different crude sources, the sulfur content of
those crude sources, the cost of the different crude sources over the
past five years, and an estimate of gasoline sulfur levels achievable
by your refinery if the lower sulfur crude sources were used;
(7) A discussion of any sulfur reductions that can be achieved from
current levels;
(8) The date the refiner anticipates compliance with the standards
in Sec. 80.195 can be achieved at its refinery;
(9) An analysis of the economic impact of compliance on the
refiner's business (including financial statements from the last 5
years, or for any time period up to 10 years, at EPA's request); and
(10) Any other information regarding other strategies considered,
including strategies, or components of strategies, that do not involve
installation of equipment, and why meeting the standards in Sec. 80.195
beginning in 2008 is infeasible.
(c) The hardship extension application must contain a letter signed
by the president, chief operating or chief executive officer, of the
company, or his/her designee, stating that the information contained in
the application is true to the best of his/her knowledge.
Sec. 80.265 How will the EPA approve or disapprove of my hardship
extension application?
(a) EPA will evaluate each application for hardship extension on a
case-by-case basis. An extension will be granted for a refinery if the
small refiner who owns the refinery adequately demonstrates that severe
economic hardship would result if compliance with the standards in
Sec. 80.195 is required in 2008 and/or 2009.
(b) EPA may request more information, if necessary, for evaluation
of the application. If requested information is not submitted within
the time specified in EPA's request, or any extensions granted, the
application may be denied.
(c) EPA will notify the refiner of approval or disapproval of
hardship extension by letter.
(1) If approved, EPA will also notify the refiner of the date that
full compliance with the standards specified at Sec. 80.195 must be
achieved or what interim sulfur levels or schedules apply, if any.
[[Page 26113]]
(2) If disapproved, beginning January 1, 2008, the refinery is
subject to the requirements in Sec. 80.195.
Sec. 80.270-80.275 [Reserved]
Sulfur Averaging, Banking, Trading-General Information
Sec. 80.280 What is the sulfur Averaging, Banking and Trading (ABT)
program?
(a) The sulfur averaging, banking and trading program is a
voluntary program which allows eligible, participating refiners and
importers to generate, bank, trade and use credits.
(b) Beginning in 2000, refiners and importers may generate credits
by producing or importing gasoline with sulfur levels below the
applicable baseline as calculated under Sec. 80.295.
(c) Beginning in 2004, sulfur credits may be:
(1) Used by the refiner or importer who generated the credits;
(2) Banked for later use or transfer; or
(3) Traded or sold to another refiner or importer.
(d) This subpart contains specific requirements for the following:
(1) Using, generating, selling and trading credits; and
(2) The duration of the ABT program.
(e) The gasoline sulfur ABT program is summarized in Table 1 of
this section as follows:
BILLING CODE 6560-50-P
[GRAPHIC] [TIFF OMITTED] TP13MY99.009
BILLING CODE 6560-50-C
Sec. 80.285 Who may participate in the sulfur ABT program?
(a) Any refiner or importer of gasoline, may participate in the
program, except that participation by small refiners is limited under
paragraph (d) of this section.
(b) Refiners and importers who choose to generate credits in the
ABT program must establish a sulfur baseline under Sec. 80.290.
(c) Oxygenate blenders may not participate in the program.
(d) Small refiners with any refinery subject to the standards
specified in Sec. 80.240:
(1) May not use sulfur credits to meet the average standard
applicable to the refinery.
(2) May generate early credits under Sec. 80.305 and bank and trade
such sulfur credits throughout the duration of the sulfur ABT program.
Sulfur ABT Program--Baseline
Sec. 80.290 How do I apply for a sulfur baseline?
(a) Each refiner or importer who wishes to generate ABT program
credits during 2000-2003 must submit a sulfur baseline notification to
EPA by July 1, 2000.
(b) The sulfur baseline notification must be sent to: U.S. EPA-FED,
ABT Sulfur Baseline, 2000 Traverwood, Ann Arbor, MI 48105.
(c) The sulfur baseline notification must include the following
information:
(1) A listing of the names and addresses of all refineries and/or
import facilities owned by the corporation;
(2) The conventional gasoline sulfur baseline value, calculated as
specified in Sec. 80.295(a), for each refinery and import facility of
the corporation.
(3) The conventional gasoline baseline volume, calculated as
specified in Sec. 80.295(c), for each refinery and import facility of
the corporation.
(4) A letter signed by the president, chief operating or chief
executive officer, of the company, or his/her delegate, stating that
the information contained in the sulfur baseline determination is true
to the best of his/her knowledge.
(5) Name, address, phone number, facsimile number and E-mail
address of a corporate contact person.
(d)(1) A refiner or importer may generate credits as specified in
Sec. 80.305, beginning in calendar year 2000, based on the sulfur
baseline submitted to EPA according to paragraph (c) of this section.
(2) If at any time the baseline submitted in accordance with the
requirements of this section is determined to be incorrect, the
corrected baseline applies. Credits
[[Page 26114]]
generated, banked, used or traded will be adjusted to reflect the
correction.
Sec. 80.295 How is a refinery or importer sulfur baseline determined?
(a) A refinery's or importer's conventional gasoline sulfur
baseline is calculated using the following equation:
[GRAPHIC] [TIFF OMITTED] TP13MY99.010
Where:
S<INF>BCG</INF> = Conventional gasoline sulfur baseline value.
V<INF>i</INF> = Volume of conventional gasoline batch i.
S<INF>i</INF> = Sulfur content of conventional gasoline batch i.
n = Total number of batches of conventional gasoline produced or
imported during January 1, 1997 through December 31, 1998.
i = Individual batch of conventional gasoline produced or imported
during January 1, 1997 through December 31, 1998.
(b) The individual sulfur baseline for summer reformulated gasoline
is 150 ppm.
(c) The individual sulfur baseline for winter reformulated gasoline
is equivalent to the conventional gasoline sulfur baseline calculated
under paragraph (a) of this section.
(d) The baseline volumes are as follows:
(1) The conventional gasoline baseline volume is one half of the
total 1997 and 1998 volume of conventional gasoline produced or
imported.
(2) There is no baseline volume for either summer or winter RFG
produced or imported.
(e) Any refiner or importer who, under Sec. 80.65 or
Sec. 80.101(d)(4), included oxygenate blended downstream in
conventional gasoline compliance calculations for 1997-1998 must
include this oxygenate in the baseline calculations for sulfur content
and volume under paragraphs (a) and (d) of this section.
(f) The baseline calculations for sulfur content and volume under
paragraphs (a) and (d) of this section for non-oxygenated blendstock,
such as natural gasoline or butane, that is blended into gasoline must
be calculated using the sulfur content and volume of the blendstock
only.
Sec. 80.300 What if I did not produce or import gasoline during 1997
or 1998?
A refiner or importer who did not produce or import gasoline during
1997 or 1998 is assigned a baseline sulfur level of 150 ppm for
conventional gasoline and RFG (winter and summer).
Sulfur ABT Program--Credit Generation
Sec. 80.305 How are credits generated during the time period 2000
through 2003?
(a) General. (1) Sulfur credits may be generated annually during
calendar years 2000-2003.
(2) Credits must be calculated separately for Conventional gasoline
and RFG. Credits must be calculated by multiplying the volume of
gasoline for which credits are generated under paragraphs (b) and (c)
of this section by the amount of sulfur reduction in ppm below the
refiner's or importer's applicable sulfur baseline. The refiner or
importer may include any oxygenates included in its RFG or Conventional
gasoline volume under Secs. 80.65 and 80.101(d)(4), respectively, for
the purpose of generating credits.
(3) A refiner's or importer's total credit generation is the sum of
the separate credit calculations for Conventional gasoline and RFG.
(4) Credits under this program are in units of ``ppm-gallons''.
(5) Credits must be identified by the year of creation, the year of
transfer (if any), and the year of use (as specified in Sec. 80.315).
Records relating to credit generation, use, and transfer, including the
applicable years, must be maintained pursuant to Sec. 80.365.
(b) Calculation of credits for conventional gasoline. (1) Refiners
and importers may generate credits for conventional gasoline produced
or imported during an averaging period only if the annual average
sulfur level for the conventional gasoline produced during the
averaging period is less than 150 ppm.
(2) Refiners and importers whose conventional gasoline volume for
the averaging period is less than or equal to 105% of its baseline
volume for conventional gasoline, must calculate credits as follows:
CR<INF>CG</INF> = (V<INF>CG</INF>) x
S<INF>BCG</INF>-S<INF>ACG</INF>)
Where:
CR<INF>CG</INF> = Credits generated for conventional gasoline.
V<INF>CG</INF> = Volume of conventional gasoline produced or imported
during the averaging period.
S<INF>BCG</INF> = Sulfur baseline value for conventional gasoline or
150, whichever is greater .
S<INF>ACG</INF> = Annual average sulfur level for conventional gasoline
produced or imported during the averaging period.
(3) Refiners and importers whose conventional gasoline volume for
the averaging period is greater than 105% of the baseline volume for
conventional gasoline, must calculate credits as follows:
CR<INF>CG</INF> = (V<INF>BCG</INF> x 1.05) x
(S<INF>BCG</INF>-S<INF>ACG</INF>) + (V<INF>CG</INF>-(1.05 x
V<INF>BCG</INF>)) x (150-S<INF>ACG</INF>)
Where:
CR<INF>CG</INF> = Credits generated for conventional gasoline.
V<INF>BCG</INF> = Baseline volume of conventional gasoline.
S<INF>BCG</INF> = Sulfur baseline value for conventional gasoline or
150, whichever is greater.
S<INF>ACG</INF> = Annual average sulfur level for conventional gasoline
produced or imported during the averaging period.
V<INF>CG</INF> = Volume of conventional gasoline produced or imported
during the averaging period.
(c) Calculation of credits for RFG. (1) Refiners and importers may
generate credits for summer RFG produced or imported during an
averaging period only if the average sulfur level for the summer RFG
produced or imported during the averaging period is less than 150 ppm.
Summer RFG credits are calculated as follows:
CR<INF>SRFG</INF> = (V<INF>SRFG</INF>) x (150-S<INF>SRFG</INF>)
Where:
CR<INF>SRFG</INF> = Credits generated for summer reformulated gasoline.
V<INF>SRFG</INF> = Volume of summer RFG produced or imported during the
averaging period.
S<INF>SRFG</INF> = Average sulfur level for summer RFG produced or
imported during the averaging period.
(2) Refiners and importers may generate credits for winter RFG
produced or imported during an averaging period only if the average
sulfur level for the winter RFG produced or imported during the
averaging period is less than 150 ppm. Winter RFG credits calculated as
follows:
CR<INF>WRFG</INF> = (V<INF>WRFG</INF>) x
(S<INF>BCG</INF>-S<INF>WRFG</INF>)
Where:
CR<INF>WRFG</INF> = Credits generated for winter reformulated gasoline.
V<INF>WRFG</INF> = Volume of winter RFG produced or imported during the
averaging period.
S<INF>BCG</INF> = Sulfur baseline value for conventional gasoline or
150, whichever is greater.
S<INF>WRFG</INF> = Average sulfur level for winter RFG produced or
imported during the averaging period.
[[Page 26115]]
Sec. 80.310 How are credits generated beginning in 2004?
(a) A refiner, for any refinery owned by it, or an importer may
generate credits for annual average sulfur reductions if the annual
average sulfur level for the combined RFG and conventional gasoline
produced by any refinery owned by the refiner or imported by the
importer for the averaging period is less than 30 ppm.
(b) Credits calculated as follows:
CR<INF>A</INF> = (V<INF>A</INF>) x (30-S<INF>A</INF>)
Where:
CR<INF>A</INF> = Credits generated for the averaging period.
V<INF>A</INF> = Total annual combined volume of RFG and conventional
gasoline produced in a refinery or imported during the averaging
period.
S<INF>A</INF> = Annual average sulfur level of RFG and conventional
gasoline produced in a refinery or imported during the averaging
period.
(c) Credits must be identified by the year of creation, the year of
transfer (if any), and the year of use (as specified in Sec. 80.315).
Records relating to credit generation, use, and transfer, including the
applicable years, must be maintained pursuant to Sec. 80.365.
Sulfur ABT Program-Credit Use
Sec. 80.315 How are credits used?
(a) Credits may be used, beginning with the 2004 averaging period,
to meet the applicable annual average sulfur standard of 30 ppm,
provided that:
(1) Sulfur credits used were generated pursuant to the requirements
of this subpart; and
(2) The requirements of paragraphs (b) and (e) of this section are
met.
(b) Credits may not be used to meet the applicable corporate pool
average under Sec. 80.195.
(c) Credit transfers. (1) Credits obtained from other persons may
be used to meet the annual averaged 30 ppm standard specified in
Sec. 80.195 if all the following conditions are met:
(i) The credits are generated and reported according to the
requirements of this subpart.
(ii) The credits are used in compliance with the limitations
regarding the appropriate periods for credit use in this subpart.
(iii) Any credit transfer takes place no later than the last day of
February following the calendar year averaging period when the credits
are used.
(iv) Only the refiner or importer who generates the credits
transfers them, and only a refiner or importer who uses the credits to
achieve its compliance with the averaged standards obtains them from
the transferor refiner or importer.
(v) The credit transferor must apply any credits necessary to meet
the transferor's applicable average standard, including credits
generated during 2000, 2001, 2002 and 2003, before transferring credits
to any other refiner or importer. No credits may be transferred that
would result in the transferor having a negative credit balance.
(vi) The transferor must supply to the transferee records
indicating the year(s) the credits were generated.
(2) In the case of credits that have been calculated or created
improperly, or are otherwise determined to be invalid in violation of
the requirements of this subpart, the following provisions apply:
(i) Invalid credits cannot be used to achieve compliance with the
transferee's averaging standard, regardless of the transferee's good
faith belief that the credits were valid.
(ii) The refiner or importer who used the credits, and any
transferor of the credits, must adjust its sulfur calculations to
reflect the proper credits.
(iii) Any properly created credits existing in the transferor's
credit balance after correcting the credit balance, and after the
transferor applies credits as needed to meet the average standard at
the end of the compliance year, must first be applied to correct the
invalid transfers before the transferor trades or banks the credits.
(d) Limitations on credit use. (1) Credits generated prior to 2004
must be used or transferred no later than 2007.
(2) Credits generated in 2004 or later must be used or transferred
within five years of generation.
(3) Credits transferred must be used by the transferee within five
years of transfer, or no more than ten years of the year of generation,
whichever is less.
(4) A refiner possessing credits must use all credits prior to
falling into compliance deficit, as defined under Sec. 80.205(d) (2).
(e) If the recordkeeping requirements of Sec. 80.365(d) are not
met, credits used under this subpart are invalid.
Sec. 80.320 What are the reporting requirements for the sulfur ABT
program?
(a) A refiner or importer who generates, uses, or transfers credits
under the sulfur ABT program must file an annual report with EPA which
must be submitted with the refiner's or importer's annual compliance
report under Sec. 80.370.
(b) The report must include the following information:
(1) For credits generated in 2000, 2001, 2002 and 2003, the
applicable Conventional gasoline sulfur content baseline, in ppm, and
Conventional gasoline baseline;
(2) The actual annual average sulfur content, in ppm, before the
application of credits, separately for Conventional gasoline and
separately, the average sulfur content, in ppm, for winter RFG and for
summer RFG;
(3) For refiners, the annual volume of conventional gasoline
produced, and for importers, the annual volume of Non-Certified S-FRGAS
imported, in gallons;
(4) The number of credits used in ppm-gallons, in the averaging
period;
(5) The number of credits banked, credits transferred and credits
acquired, in ppm-gallons;
(6) The identity of the refiners and importers involved in these
transactions, including their registration numbers, under Sec. 80.190,
and the number of credits in ppm-gallons in each transaction; and
(7) The number of credits, if any, for which the refiner is
deficient, as defined under Sec. 80.205 (d), and the use of credits in
the following year to cure the deficiency under Sec. 80.205(d)(2).
Sec. 80.325 [Reserved].
Sampling, Testing and Retention Requirements for Refiners and
Importers
Sec. 80.330 What are the sampling and testing requirements for
refiners and importers?
(a) Sample and test each batch of gasoline. (1) Refiners and
importers of gasoline must collect a representative sample from each
batch of gasoline produced or imported and test each sample to
determine its sulfur content for compliance with requirements under
this subpart prior to the gasoline leaving the refinery or import
facility, using the sampling and testing methods provided in this
section.
(2) The requirements of this section apply beginning October 1,
2003, or January 1 of the first year of credit generation for refiners
and importers generating early credits under Sec. 80.305.
(b) Sampling methods. Refiners and importers must sample each batch
of gasoline by using one of the following methods:
(1) Manual sampling of tanks and pipelines must be performed
according to the applicable procedures specified in one of the two
following methods:
(i) American Society for Testing and Materials (ASTM) method D
4057-95, entitled ``Standard Practice for Manual Sampling of Petroleum
and Petroleum Products.''
(ii) Samples collected under the applicable procedures in ASTM D
5842-95, entitled ``Standard Practice for Sampling and Handling of
Fuels for Volatility Measurement,'' may be used
[[Page 26116]]
for measuring sulfur content if you assure that there is no
contamination present that could affect the sulfur test result.
(2) Automatic sampling of petroleum products in pipelines must be
performed according to the applicable procedures specified in ASTM
method D 4177-95, entitled ``Standard Practice for Automatic Sampling
of Petroleum and Petroleum Products.''
(c) Test method for measuring the sulfur content of gasoline.
Refiners and importers must use the method provided in Sec. 80.46(a) to
measure the sulfur content of gasoline they produce or import.
(d) Test method for sulfur in Butane. The sulfur content of butane
must be determined by ASTM D-5623-94, entitled ``Standard Test Method
for Sulfur Compounds in Light Petroleum Liquids by Gas Chromatography
and Sulfur Selective Detection.''
(e) Incorporations by reference. ASTM standard practices D 4057-95,
D 4177-95 and D 5842-95, and ASTM standard method D 5623-94 are
incorporated by reference. These incorporations by reference were
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 obtained from the
American Society for Testing and Materials, 100 Barr Harbor Dr., West
Conshohocken, PA 19428. Copies may be inspected at the Air Docket
Section (LE-131), room M-1500, U.S. Environmental Protection Agency,
Docket No. A-97-03, 401 M Street, SW., Washington, DC 20460, or at the
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington, DC.
Sec. 80.335 What gasoline sample retention requirements apply to
refiners and importers?
(a) For each batch of gasoline produced or imported, refiners and
importers must:
(1) Retain a representative sample of at least 330 ml, collected
from the batch and keep the sample for a period not less than 30 days
from the date the batch was collected.
(2) Comply with the gasoline sample handling and storage procedures
found in the sampling procedures specified in Sec. 80.330 for each
sample retained.
(3) Provide the sample retained under paragraph (a) of this section
to the Administrator's authorized representative upon request by EPA,
and if requested by EPA, ship the sample to EPA within two working days
by an overnight shipping service or comparable means, following the
procedures specified by EPA when the request is made.
(4) Include with each annual report filed under Sec. 80.370, the
following statement, signed and dated by the same person who signs the
annual report:
I certify that I have made inquiries that are sufficient to give
me knowledge of the procedures to collect and store gasoline
samples, and I further certify that the procedures meet the
requirements of the ASTM procedures required under Sec. 80.330.
(b) The requirements of this section apply beginning October 1,
2003, or January 1 of the first year of credit generation for refiners
and importers generating early credits under Sec. 80.305.
Sec. 80.340 What alternative standards, sampling and testing
requirements apply to refiners producing gasoline by blending
blendstocks into previously certified gasoline (PCG)?
(a) Any refiner who produces gasoline by blending blendstock into
PCG must meet the requirement of Sec. 80.330 to sample and test every
batch of gasoline as follows:
(1)(i) Sample and test to determine the volume and sulfur content
of the PCG prior to blendstock blending;
(ii) Sample and test to determine the volume and sulfur content of
the gasoline subsequent to blendstock blending;
(iii) Calculate the volume and sulfur content of the blendstock,
which is a batch for purposes of compliance calculations and reporting,
by subtracting the volume and sulfur content of the PCG from the volume
and sulfur content of the gasoline subsequent to blendstock blending.
(2) In the alternative, and provided every batch of blendstock used
at a refinery during an averaging period has a sulfur content that is
equal to or less than the applicable per-gallon cap standard under
Sec. 80.195, a refiner may sample and test each batch of blendstock
when received at the refinery to determine the volume and sulfur
content, and treat each blendstock receipt as a separate batch for
purposes of compliance calculations for the annual average sulfur
standard and for reporting.
(b) Refiners that blend only butane into PCG may meet the sampling
and testing requirements by using sulfur test results of the butane
supplier, provided that the following requirements are also met:
(1) The sulfur content of the butane received from the butane
supplier must not exceed 30 ppm on a per-gallon basis.
(2) The butane supplier must demonstrate that the sulfur content of
each load of butane supplied does not exceed the per-gallon sulfur
standard of 30 ppm through test results of samples of the butane
contained in the storage tank from which the butane blender is
supplied.
(i) Testing for the sulfur content of the butane by the supplier
must be subsequent to each time butane is supplied to the supplier's
storage tank, or the testing must be immediately before transfer of
butane to the butane blender.
(ii) The testing must be performed by the method specified in
Sec. 80.330(d).
(iii) The butane blender must obtain a copy of the butane
supplier's test results, at the time of each transfer of butane to the
butane blender, that reflect the sulfur content of each load of butane
supplied to the butane blender.
(3) The sulfur content and volume of each batch of gasoline
produced must be that of the butane the refiner blends into gasoline
for purposes of calculating compliance with the standards in
Sec. 80.195.
(4) The refiner must conduct a quality assurance program of
sampling and testing for each butane supplier that demonstrates the
butane sulfur content does not exceed 30 ppm. The frequency of butane
sampling and testing, for each butane supplier, must be one sample for
every 500,000 gallons of butane received, or one sample every 3 months,
whichever results in more frequent sampling.
(5) If any of the requirements of this section are not met, in
whole or in part, for any butane blended into gasoline, that butane is
deemed in violation of the gasoline sulfur standards in Sec. 80.195.
Sec. 80.345 [Reserved]
Sec. 80.350 What alternative sulfur standards, sampling and testing
requirements apply to importers who transport gasoline by truck?
Importers who import gasoline into the United States by truck, as
an alternative to the requirements to sample and test every batch of
gasoline under Sec. 80.330(a), and the annual sulfur average and per-
gallon cap standards otherwise applicable to importers under
Sec. 80.195, may instead comply with the following requirements:
(a) Per-gallon standard. The imported gasoline must meet a sulfur
standard of 30 ppm on a per-gallon basis.
(b) Terminal testing. The terminal operator must demonstrate the
gasoline does not exceed 30 ppm sulfur on a per-gallon basis, through
testing of the gasoline contained in the storage tank from which the
trucks used to transport gasoline into the United States are loaded.
[[Page 26117]]
(1) This sampling and testing must be performed after each receipt
of gasoline into the storage tank, or immediately before each transfer
of gasoline to the importer's truck.
(2) The sampling and testing must be performed using the methods
specified in Sec. 80.330.
(3) At the time of each transfer of gasoline to the importer's
truck, the importer must obtain a copy of the terminal test result that
indicates the sulfur content of each truck load of gasoline that is
imported into the United States.
(c) Quality assurance program. The importer must conduct a quality
assurance program, as specified in this paragraph, for each truck
loading terminal.
(1) Quality assurance samples must be obtained from the truck-
loading terminal and tested by the importer, or by an independent
laboratory, and the terminal operator must not know in advance when
samples are to be collected.
(2) The sampling and testing must be performed using the methods
specified in Sec. 80.330.
(3) The quality assurance test results for sulfur must be within 12
ppm of the terminal's test results.
(4) The frequency of the quality assurance sampling and testing
must be at least one sample for each fifty of an importer's trucks that
are loaded at a terminal, or one sample per month, whichever is more
frequent.
(d) Instead of conducting the quality assurance program specified
in paragraph (c) of this section an importer may meet the quality
assurance program requirement if the sampling and testing requirements
of paragraph (b) of this section are conducted by an independent
laboratory that meets the requirements in Sec. 80.65(f)(2)(iii).
(e) The importer must treat each truck load of imported gasoline as
a separate batch for purposes of assigning batch numbers and
maintaining records under Sec. 80.365, and reporting under Sec. 80.370.
(f) EPA inspectors or auditors, and auditors conducting attest
engagements under Sec. 80.415, must be given full and immediate access
to the truck-loading terminal and any laboratory at which samples of
gasoline collected at the terminal are analyzed, and must be allowed to
conduct inspections, review records, collect gasoline samples, and
perform audits. These inspections or audits may be either announced or
unannounced.
(g) This section does not apply to Certified Sulfur-FRGAS.
(h) If any of the requirements of this section are not met, all
gasoline imported by the truck importer during the time any
requirements are not met is deemed in violation of the gasoline sulfur
average and per-gallon cap standards in Sec. 80.195. In addition, the
truck importer may not in the future use the sampling and testing
provisions in this section in lieu of the provisions in Sec. 80.330.
Sec. 80.355 [Reserved]
Recordkeeping and Reporting Requirements
Sec. 80.360 What are the product transfer document requirements?
(a) On each occasion that any person transfers custody of or title
to S-RGAS, as defined in Sec. 80.210, other than when S-RGAS is sold or
dispensed for use in motor vehicles at a retail outlet or wholesale
purchaser-consumer facility, the product transfer documents must
include a statement identifying the gasoline as S-RGAS and the
applicable downstream cap under Sec. 80.210(b).
(b) Except for transfers to truck carriers, retailers and wholesale
purchaser-consumers, product codes may be used to convey the
information required by this section if such codes are clearly
understood by each transferee.
Sec. 80.365 What records must be kept?
(a) Records that must be kept. Beginning January 1, 2004, any
person who sells, offers for sale, dispenses, distributes, supplies,
offers for supply, stores, or transports gasoline, must keep the
following records:
(1) The product transfer documents required under Secs. 80.106,
80.77 and 80.360;
(2) For any sampling and testing for sulfur content conducted:
(i) The location, date, time and storage tank or truck
identification for each sample collected;
(ii) The name and title of the person who collected the sample and
the person who performed the testing;
(iii) The results of the tests for sulfur content and the test
volume; and
(3) Reasonable business records documenting the actions you took to
stop the sale or distribution of any gasoline found not to be in
compliance with the sulfur standards specified in this subpart, and the
actions you took to identify the cause of any noncompliance and prevent
future instances of noncompliance.
(b) Additional records that refiners and importers must keep.
Beginning October 1, 2003, or January 1 of the first year of early
credit generation for refiners and importers generating credits under
Sec. 80.305, refiners and importers must keep records that include the
following information:
(1) The volume of each batch of gasoline produced or imported;
(2) For credit generation, the information required by paragraph
(a)(2) of this section as well as the information required under
Sec. 80.305(a)(5) and Sec. 80.310(c);
(3) The batch number assigned to each batch of gasoline under
Sec. 80.65(d)(3); however, if composite samples that represent multiple
batches of conventional gasoline for anti-dumping purposes are used, a
separate batch number must be assigned to each batch for purposes of
this subpart;
(4) The date of production or importation of each batch of gasoline
produced or imported;
(5) The calculations and records used in making the calculations to
determine compliance with the applicable sulfur standard on average,
including compliance with the debit provision of this subpart and
records regarding the generation, use, transfer, and banking of credits
under Secs. 80.195, 80.305, 80.310 and 80.315; and
(6) A copy of all reports and other documents submitted to the EPA
pursuant to the requirements of this subpart.
(c) Additional records importers must keep. Importers must maintain
documentation which verifies the source of each batch of certified
Sulfur-FRGAS and non-certified Sulfur-FRGAS imported.
(d) Length of time records must be kept. The records required in
paragraphs (a), (b) and (c) of this section must be maintained for five
years from the date they were created, except for the following:
(1) For any person who generates credits, and/or uses the credits
so generated, the records required by paragraphs (a), (b) and (c) of
this section must be retained for five years from the date the credits
were used, and in no case must the records be retained for more than
ten years from the year they were generated.
(2) In the case of credits that were transferred between two
parties, both parties must retain records of those credits for ten
years from the date the credits were generated.
(e) Make records available to EPA. The records required in
paragraphs (a), (b) and (c) of this section must be made available to
the Administrator or the Administrator's authorized representative upon
request.
Sec. 80.370 What are the annual reporting requirements?
Beginning with the 2004 averaging period, or the first year of
credit
[[Page 26118]]
generation for refiners and importers generating early credits under
Sec. 80.305, and continuing for each averaging period thereafter,
refiners and importers must submit to the Administrator a report that
contains the information required in this section and such other
information as EPA may require. A refiner's annual reports for 2004 and
2005 must include the refiner's RFG and conventional gasoline
production for all refineries during the averaging period. Beginning in
2006 and thereafter, a refiner must submit a separate annual report for
each refinery that produced gasoline during the averaging period. An
importer must submit a report for all of the gasoline imported during
the averaging period no later than the last day of February following
the previous year's averaging period.
(a) Information required in a refiner's report. For refiners, the
annual sulfur averaging report must include the following information:
(1) The EPA refiner and refinery facility registration numbers;
(2) The total gallons of gasoline (winter reformulated, summer
reformulated, and conventional) produced at the refinery or aggregation
of refineries;
(3) The annual average sulfur content of the gasoline (winter
reformulated, summer reformulated, and conventional) produced at the
refinery, or aggregation of refineries, in parts per million;
(4) For each batch of gasoline produced during the averaging
period:
(i) The batch number assigned under Sec. 80.65(d)(3); however, if
composite samples that represent multiple batches of conventional
gasoline are tested for conventional gasoline, a separate batch number
must be assigned to each batch, using the batch numbering procedures
specified in Sec. 80.65(d)(3);
(ii) The date the batch was produced;
(iii) The volume of the batch;
(iv) The sulfur content of the batch as determined under
Sec. 80.330;
(v) The information on individual batches submitted to EPA under
Sec. 80.75(a)(2) and 80.105(a)(5) satisfies the requirements of this
paragraph (a)(4) unless compositing of samples is used for anti-dumping
rule batch reporting under Sec. 80.105(a)(5);
(5) A refiner's annual report for 2004 and 2005 must include the
refiner's winter reformulated RFG, summer RFG, and conventional
gasoline for all refineries during the averaging period;
(6) Beginning in 2006 and thereafter, a refiner must submit a
separate annual report for each of its refineries that produced
gasoline during the averaging period.
(b) Information required in an importer's report. An importer must
submit a report for all the gasoline it imported during the averaging
period. The report must include the following information:
(1) The EPA importer registration number;
(2) The total gallons of gasoline (reformulated and conventional)
imported during the averaging period, excluding certified Sulfur-FRGAS;
(3) The annual average sulfur content of the gasoline (reformulated
and conventional) imported during the averaging period, excluding
certified Sulfur-FRGAS, in parts per million;
(4) For gasoline imported during the averaging period from any
small foreign refiner who has an EPA approved individual baseline under
the small refiner provisions at Sec. 80.410, include the following
information:
(i) The EPA refiner and refinery registration numbers of each such
small foreign refiner and refinery facility; and
(ii) The total gallons of certified Sulfur-FRGAS and non-certified
Sulfur-FRGAS imported from each such small foreign refiner;
(5) The batch information required in paragraph (a)(4) of this
section.
(c) Sulfur credit program activity. Refiners and importers who
generate, bank, transfer, or use sulfur credits must submit to EPA an
annual report in accordance with the provisions of Sec. 80.320.
(d) The report must state the debit for the current year, as
applicable, and credits applied to the previous compliance year's
debit, as applicable.
(e) Report submission. Each annual report required under this
section must be:
(1) Signed and certified as meeting all of the applicable
requirements of this subpart H by the owner or a responsible corporate
officer of the refiner or importer; and
(2) Submitted to EPA no later than the last day of February for the
prior calendar year averaging period.
(f) Attest reports. Attest reports for refiner and importer attest
engagements must be submitted to the Administrator by May 30 of each
year under Sec. 80.415.
Exemptions
Sec. 80.375 What requirements apply to California gasoline?
(a) Definition. For purposes of this subpart, California gasoline
is defined under Sec. 80.81(a)(2).
(b) California gasoline exemptions. California gasoline is exempt
from all requirements of this subpart with the exception of the
segregation requirement described in paragraph (c) of this section and
the product transfer document requirements described in paragraph (d)
of this section.
(c) Segregation requirement. California gasoline produced at a
refinery located outside of the state of California must be kept
segregated from all gasoline that is not California gasoline at all
points in the distribution system.
(d) Product transfer documents. For California gasoline produced at
a refinery located outside the state of California, the transferors and
transferees must comply with the product transfer document requirements
in Sec. 80.81(g).
(e) Use of California test methods and off site sampling
procedures. Any refiner of gasoline produced in California or importer
of gasoline imported into California whose gasoline is used outside of
California may:
(1) Use the sampling and testing methods approved in Title 13 of
the California Code of Regulations, as permitted under Sec. 80.81(h)(1)
as an alternative to the sampling and testing methods required by
Sec. 80.330; and
(2) Determine the sulfur content of gasoline at off site tankage as
permitted in Sec. 80.81(h)(2).
Sec. 80.380 What are the requirements for obtaining an exemption for
gasoline used for research, development or testing purposes?
(a) R&D application. Any person may request an exemption from the
provisions of this subpart for gasoline used for research, development
or testing (``R&D'') purposes by submitting an application that
includes all the information listed in paragraph (c) of this section
to:
Director (6406J), Fuels and Energy Division, U.S. Environmental
Protection Agency, 401 M Street SW, Washington, DC 20460; and
Director (2242A), Air Enforcement Division, U.S. Environmental
Protection Agency, 401 M Street, SW, Washington, DC 20460.
(b) Criteria for an R&D exemption. For an R&D exemption to be
granted, the proposed test program must:
(1) Have a purpose that constitutes an appropriate basis for
exemption;
(2) Necessitate the granting of an exemption;
(3) Be reasonable in scope; and
(4) Have a degree of control consistent with the purpose of the
program and EPA's monitoring requirements.
(c) Information required to be submitted. To demonstrate each of
the four elements in paragraphs (b)(1) through (4) of this section, the
[[Page 26119]]
application required under paragraph (a) of this section must include
the following information:
(1) A concise statement of the purpose of the program demonstrating
that the program has an appropriate R&D purpose.
(2) An explanation of why the stated purpose of the program cannot
be achieved in a practicable manner without performing one or more of
the prohibited acts under Sec. 80.385.
(3) To demonstrate the reasonableness of the scope of the program:
(i) An estimate of the program's duration;
(ii) An estimate of the maximum number of vehicles or engines
involved in the program;
(iii) The time or mileage duration of the program;
(iv) The range of sulfur content of the gasoline expected to be
used in the program, in ppm; and
(v) The quantity of gasoline which exceeds the applicable sulfur
standard that is expected to be used in the program.
(4) With regard to control, a demonstration that the program
affords EPA a monitoring capability, including at a minimum:
(i) The technical nature of the program;
(ii) The site(s) of the program (including street address, city,
county, State, and zip code);
(iii) The manner in which information on vehicles and engines used
in the program will be recorded and made available to the
Administrator;
(iv) The manner in which results of the program will be recorded
and made available to the Administrator;
(v) The manner in which information on the gasoline used in the
program (including quantity, sulfur content, name, address, telephone
number and contact person of the supplier, and the date received from
the supplier), will be recorded and made available to the
Administrator;
(vi) The manner in which distribution pumps will be labeled to
insure proper use of the gasoline;
(vii) The name, address, telephone number and title of the
person(s) in the organization requesting an exemption from whom further
information on the application may be obtained; and
(viii) The name, address, telephone number and title of the
person(s) in the organization requesting an exemption who is
responsible for recording and making available the information
specified in paragraphs (b)(4)(iii), (iv) and (v) of this section, and
the location in which such information will be maintained.
(d) Additional requirements. (1) The product transfer documents
associated with R&D gasoline must identify the gasoline as such, and
must state that the gasoline is to be used only for research,
development, or testing purposes.
(2) The R&D gasoline must be kept segregated from non-exempt
gasoline at all points in distribution of the gasoline.
(3) The R&D gasoline must not be sold, distributed, offered for
sale or distribution, dispensed, supplied, offered for supply,
transported to or from, or stored by a gasoline retail outlet, or by a
wholesale purchaser-consumer facility, unless the wholesale purchaser-
consumer facility is associated with the R&D program that uses the
gasoline.
(e) Memorandum of exemption. The Administrator will grant an R&D
exemption upon a demonstration that the requirements of this section
have been met. The R&D exemption will be granted in the form of a
memorandum of exemption signed by the applicant and the Administrator
(or delegate), which will include such terms and conditions as the
Administrator determines necessary to monitor the exemption and to
carry out the purposes of this section. Any violation of such a term or
condition of the exemption or any requirement under this section will
cause the exemption to be void ab initio.
Violation Provisions
Sec. 80.385 What acts are prohibited under the gasoline sulfur
program?
No person may:
(a) Produce or import gasoline that does not comply with the
applicable sulfur average standards at Sec. 80.195 or Sec. 80.240.
(b) Produce, import, sell, offer for sale, dispense, supply, offer
for supply, store or transport gasoline that does not comply with the
applicable sulfur cap standards at Sec. 80.195, Sec. 80.210 or
Sec. 80.240.
(c) Cause another person to commit an act in violation of paragraph
(b) of this section.
(d) Cause gasoline that does not comply with an applicable refiner/
importer or downstream cap standard under Sec. 80.195, Sec. 80.210 or
Sec. 80.240 to be in the gasoline distribution system.
Sec. 80.390 What evidence may be used to determine compliance with the
prohibitions and requirements of this subpart and liability for
violations of this subpart?
(a) Compliance with the sulfur standards of this subpart must be
determined based on the sulfur level of the gasoline, measured using
the methodologies specified in Sec. 80.330. Any evidence or
information, including the exclusive use of such evidence or
information, may be used to establish the sulfur level of gasoline if
the evidence or information is relevant to whether the sulfur level of
gasoline would have been in compliance with the standards if the
appropriate sampling and testing methodology had been correctly
performed. Such evidence may be obtained from any source or location
and may include, but is not limited to, test results using methods
other than those specified in Sec. 80.330, business records, and
commercial documents.
(b) Determination of compliance with the requirements of this
subpart other than the sulfur standards, and determination of liability
for any violation of this subpart, are based on probative evidence or
information obtained from any source or location. Such evidence may
include, but is not limited to, business records and commercial
documents.
Sec. 80.395 Who is liable for violations under the gasoline sulfur
program?
(a) Persons liable for violations of prohibited acts. (1) Any
refiner or importer who violates Sec. 80.385(a) is liable for the
violation.
(2) Any refiner, importer, distributor, reseller, carrier, retailer
or wholesale purchaser-consumer who owned, leased, operated, controlled
or supervised a facility where a violation of Sec. 80.385(b) occurred,
is deemed in violation of Sec. 80.385(b).
(3) Any refiner, importer, distributor, reseller, retailer, or
wholesale purchaser-consumer who produced, imported, sold, offered for
sale, dispensed, supplied, offered for supply, stored, transported, or
caused the transportation or storage of gasoline that is the subject of
a violation of Sec. 80.385(b), is deemed in violation of
Sec. 80.385(c).
(4) Any refiner or importer whose corporate, trade, or brand name,
or whose marketing subsidiary's corporate, trade, or brand name
appeared at a facility where a violation of Sec. 80.385(b) occurred, is
deemed in violation of Sec. 80.385(b).
(5) Any carrier who dispensed, supplied, stored, or transported
gasoline which is the subject of a violation of Sec. 80.385(b), is
deemed in violation of Sec. 80.385(c) provided that EPA demonstrates,
by reasonably specific showing by direct or circumstantial evidence,
that any such carrier caused the violation.
(6) Any refiner, importer, distributor, reseller, or carrier who
owned, leased, operated, controlled or supervised a facility from which
gasoline that does
[[Page 26120]]
not comply with an applicable refiner/importer or downstream sulfur cap
standard at Sec. 80.195, Sec. 80.210 or Sec. 80.240 was released into
the distribution system, is deemed in violation of Sec. 80.385(d).
(7) Any person who caused another party to violate Sec. 80.385(a),
is liable for causing a violation of Sec. 80.385(a).
(b) Persons liable for failure to meet other requirements of this
subpart. (1) Any person who failed to meet a requirement of this
subpart not addressed in paragraph (a) of this section is liable for a
violation of that requirement.
(2) Any person who caused another person to fail to meet a
requirement of this subpart not addressed in paragraph (a) of this
section is liable for causing a violation of that requirement.
Sec. 80.400 What defenses apply to persons deemed liable for a
violation of a prohibited act?
(a) Any person deemed liable for a violation of a prohibition under
Sec. 80.395(a), will not be deemed in violation if the person
demonstrates:
(1) That the violation was not caused by the person or the person's
employee or agent; and
(2) That the person conducted a quality assurance sampling and
testing program, as described in paragraph (d) of this section. A
carrier may rely on the quality assurance program carried out by
another party, including the party who owns the gasoline in question,
provided that the quality assurance program is carried out properly.
Retailers and wholesale purchaser-consumers are not required to conduct
quality assurance programs.
(b) In the case of a violation found at a facility operating under
the corporate, trade or brand name of a refiner or importer, or a
refiner's or importer's marketing subsidiary, the refiner or importer
must show, in addition to the defense elements required by paragraph
(a) of this section, that the violation was caused by:
(1) An act in violation of law (other than the Clean Air Act or
this Part 80), or an act of sabotage or vandalism;
(2) The action of any refiner, importer, retailer, distributor,
reseller, carrier, retailer or wholesale purchaser-consumer in
violation of a contractual agreement between the branded refiner or
importer and the person designed to prevent such action, and despite
periodic sampling and testing by the branded refiner or importer to
ensure compliance with such contractual obligation; or
(3) The action of any carrier or other distributor not subject to a
contract with the refiner or importer, but engaged for transportation
of gasoline, despite specifications or inspections of procedures and
equipment which are reasonably calculated to prevent such action.
(c) Under paragraph (a) of this section, for any person to show
that the violation was not caused by it, or under paragraph (b) of this
section, to show that the violation was caused by any of the specified
actions, the person must demonstrate by reasonably specific showing, by
direct or circumstantial evidence, that the violation was caused or
must have been caused by another person and that the person asserting
the defense did not contribute to that other person's causation.
(d) Quality assurance program. To demonstrate an acceptable quality
assurance program under paragraph (a)(2) of this section, a person must
present evidence of the following:
(1) A periodic sampling and testing program to ensure the gasoline
the person sold, dispensed, supplied, stored, or transported, meets the
applicable sulfur standard;
(2) On each occasion when gasoline is found not in compliance with
the applicable sulfur standard:
(i) The person immediately ceases selling, offering for sale,
dispensing, supplying, offering for supply, storing or transporting the
non-complying product; and
(ii) The person promptly remedies the violation and the factors
that caused the violation (for example, by removing the non-complying
product from the distribution system until the applicable standard is
achieved and taking steps to prevent future violations of a similar
nature from occurring); and
(3) Any carrier who transports gasoline in a tank truck, the
quality assurance program required under this paragraph (d) of this
section is not required to include periodic sampling and testing of
gasoline in the tank truck, but instead of such sampling and testing,
the carrier must present evidence of an oversight program relating to
the transport or storage of gasoline by tank truck, such as appropriate
guidance to drivers regarding compliance with the applicable sulfur
standard and product transfer document requirements, and the periodic
review of records received in the ordinary course of business
concerning gasoline quality and delivery.
Sec. 80.405 What Penalties Am I Subject To?
(a) Any person liable for a violation under Sec. 80.395, is subject
to a civil penalty of not more than $27,500 for every day of each such
violation and the amount of economic benefit or savings resulting from
each violation.
(b) Any person liable under Sec. 80.395(a) for a violation of the
applicable sulfur average standard or causing another party to violate
that standard during any averaging period, is subject to a separate day
of violation for each and every day in the averaging period. Any person
liable under Sec. 80.395(b) for a failure to fulfill any credit
creation or transfer requirement, is subject to a separate day of
violation for each and every day in the averaging period.
(c)(1) Any person liable under Sec. 80.395(a) for causing gasoline
that does not comply with an applicable refiner/importer or downstream
sulfur cap standard to be in the gasoline distribution system in
violation of Sec. 80.385(d), is subject to a separate day of violation
for each and every day that the non-complying gasoline remains any
place in the gasoline distribution system.
(2) For purposes of paragraph (c) of this section, the length of
time the gasoline in question remained in the gasoline distribution
system is deemed to be twenty-five days, unless a person subject to
liability or EPA demonstrates by reasonably specific showings, by
direct or circumstantial evidence, that the non-complying gasoline
remained in the gasoline distribution system for fewer than or more
than twenty-five days.
(d) Any person liable under Sec. 80.395(b) for failure to meet, or
causing a failure to meet, a requirement of this subpart is liable for
a separate day of violation for each and every day such requirement
remains unfulfilled.
Provisions for Foreign Refiners With Individual Sulfur Baselines
Sec. 80.410 What are the additional requirements for gasoline produced
at foreign refineries having individual small refiner sulfur baselines?
(a) Definitions. (1) A foreign refinery is a refinery that is
located outside the United States, the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa, and the Commonwealth of the
Northern Mariana Islands (collectively referred to in this section as
``the United States'').
(2) A foreign refiner is a person who meets the definition of
refiner under Sec. 80.2(i) for foreign refinery.
(3) A small foreign refiner is a refiner that meets the definition
of a small refiner under Sec. 80.225.
(4) ``Sulfur-FRGAS'' means gasoline produced at a foreign refinery
that has been assigned an individual refinery
[[Page 26121]]
sulfur baseline and that is imported into the United States.
(5) ``Non-Sulfur-FRGAS'' means gasoline that is produced at a
foreign refinery that has not been assigned an individual refinery
sulfur baseline, gasoline produced at a foreign refinery with an
individual refinery sulfur baseline that is not imported into the
United States, and gasoline produced at a foreign refinery with an
individual sulfur baseline during a year when the foreign refiner has
opted to not participate in the Sulfur-FRGAS program under paragraph
(c)(3) of this section.
(6) ``Certified Sulfur-FRGAS'' means Sulfur-FRGAS the foreign
refiner intends to include in the foreign refinery's sulfur compliance
calculations under Sec. 80.205, and does include in these compliance
calculations when reported to EPA.
(7) ``Non-Certified Sulfur-FRGAS'' means Sulfur-FRGAS that is not
Certified Sulfur-FRGAS.
(b) Baseline establishment. Any foreign refiner that meets the
definition of small under Sec. 80.225, may submit to a petition to the
Administrator for an individual refinery sulfur baseline, under
Sec. 80.235 by June 1, 2002.
(1) The baseline for a foreign refinery must reflect only the
volume and properties of gasoline produced in 1997 and 1998 that was
imported into the United States.
(2) In making determinations for foreign refinery baselines EPA
will consider all information supplied by a foreign refiner, and in
addition may rely on any and all appropriate assumptions necessary to
make such a determination.
(3) Where a foreign refiner submits a petition that is incomplete
or inadequate to establish an accurate baseline, and the refiner fails
to cure this defect after a request for more information, then EPA will
not assign an individual refinery sulfur baseline.
(c) General requirements for foreign refiners with individual
refinery sulfur baselines. A foreign refiner of a refinery that has
been assigned an individual sulfur baseline under paragraph (b) of this
section must designate all gasoline produced at the foreign refinery
that is exported to the United States as either Certified Sulfur-FRGAS
or as Non-Certified Sulfur-FRGAS, except as provided in paragraph
(c)(3) of this section.
(1) In the case of Certified Sulfur-FRGAS, the foreign refiner must
meet all requirements that apply to refiners under this subpart.
(2) In the case of Non-Certified Sulfur-FRGAS, the foreign refiner
must meet all the following requirements:
(i) The designation requirements in this section.
(ii) The recordkeeping requirements in Secs. 80.360 and 80.365.
(iii) The reporting requirements in Sec. 80.370 and this section.
(iv) The product transfer document requirements in this section.
(v) The prohibitions in this section and Sec. 80.385.
(vi) The independent audit requirements in Sec. 80.415 and
paragraph (h) of this section.
(3)(i) Any foreign refiner that has been assigned an individual
sulfur baseline for a foreign refinery under paragraph (b) of this
section may elect to classify no gasoline imported into the United
States as Sulfur-FRGAS, provided the foreign refiner notifies EPA of
the election no later than November 1 of the prior calendar year.
(ii) An election under paragraph (c)(3)(i) of this section must:
(A) Be for an entire calendar year averaging period and apply to
all gasoline produced during the calendar year at the foreign refinery
that is used in the United States; and
(B) Remain in effect for each succeeding calendar year averaging
period, unless and until the foreign refiner notifies EPA of a
termination of the election. The change in election takes effect at the
beginning of the next calendar year.
(d) Designation, product transfer documents, and foreig