applicable dates. The Panel agreed with the proposal of such provisions
and recommended that we include them in the MSAT rulemaking.
iii. Portable Gasoline Containers
(a) Portable Gasoline Container Flexibilities
    Since nearly all gas can manufacturers are small entities and they
account for about 60 percent of sales, the Panel planned to extend the
flexibility options to all gas can manufacturers. Moreover,
implementation of the program would be much simpler by doing so. The
recommended flexibilities are the following:
    Design Certification--The Panel recommended that we propose to
permit gas can manufacturers to use design certification in lieu of
running any or all of the durability aging cycles. Manufacturers could
demonstrate the durability of their gas cans based in part on emissions
test data from designs using the same permeation barriers and
materials. Under a design-based certification program a manufacturer
would provide evidence in the application for certification that their
container would meet the applicable standards based on its design
(e.g., use of a particular permeation barrier). The manufacturer would
submit adequate engineering and other information about its individual
design such that EPA could determine that the emissions performance of
their individual design would not be negatively impacted by slosh, UV
exposure, and/or pressure cycling (whichever tests the manufacturer is
proposing to not run prior to emissions testing).
    Broaden Certification Families--This approach would relax the
criteria used to determine what constitutes a certification family. It
would allow small businesses to limit their certification families (and
therefore their certification testing burden), rather than testing all
of the various size containers in a manufacturer's product line. Some
small entities may be able to put all of their various size containers
into a single certification family. Manufacturers would then certify
their containers using the ``worst case'' configuration within the
family. To be grouped together, containers would need to be
manufactured using the same materials and processes even though they
are of different sizes.
    Additional Lead-time--Since it may take additional time for the gas
can SERs to gather information to fully evaluate whether or not
additional lead-time is needed beyond the 2009 start date, the Panel
recommended that we discuss lead-time in the proposal and request
comments on the need for additional lead-time to allow manufacturers to
ramp up to a nationwide program.
    Product Sell-through--As with past rulemakings for other source
sectors, the Panel recommended that EPA propose to allow normal sell
through of gas cans as long as manufacturers do not create stockpiles
of noncomplying gas cans prior to the start of the program.
(b) Portable Gasoline Container Hardships
    The Panel recommended that EPA propose two types of hardship
programs for small gas can manufacturers. These provisions are:
    Allow small manufacturers to petition EPA for limited additional
lead-time to comply with the standards. A manufacturer would have to
make the case that it has taken all possible business, technical, and
economic steps to comply but the burden of compliance costs would have
a significant adverse effect on the company's solvency. Hardship relief
could include requirements for interim emission reductions. The length
of the hardship relief would be established during the initial review
and would likely need to be reviewed annually thereafter.
    Permit small manufacturers to apply for hardship relief if
circumstances outside their control cause the failure to comply (i.e.
supply contract broken by parts supplier) and if failure to sell the
subject containers would have a major impact on the company's solvency.
The terms and timeframe of the relief would depend on the specific
circumstances of the company and the situation involved. As part of its
application, a company would be required to provide a compliance plan
detailing when and how it would achieve compliance with the standards
under both types of hardship relief.
    We invite comments on all aspects of the proposal and its impacts
on small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective, or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant federal
intergovernmental mandates, and informing, educating, and advising

small governments on compliance with the regulatory requirements.
    This 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 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 proposal
represents the least costly, most cost-effective approach to achieve
the statutory requirements of the rule. The costs and benefits
associated with the proposal are discussed above and in the Draft
Regulatory Impact Analysis, as required by the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132.
    Although section 6 of Executive Order 13132 does not apply to this
rule, EPA did consult with representatives of various State and local
governments in developing this rule. EPA has also consulted
representatives from STAPPA/ALAPCO, which represents state and local
air pollution officials.
    In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.

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

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.''
    This proposed rule does not have tribal implications as specified
in Executive Order 13175. This rule will be implemented at the Federal
level and impose compliance costs only on vehicle manufacturers
(includes alternative fuel vehicle converters and ICIs), fuel
producers, and portable gasoline container manufacturers. Tribal
governments will be affected only to the extent they purchase and use
regulated vehicles, fuels, and portable gasoline containers. Thus,
Executive Order 13175 does not apply to this rule. EPA specifically
solicits additional comment on this proposed rule from tribal
officials.

G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, 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 Executive
Order 12866, and we believe that by addressing the environmental health
or safety risk, this action may have a disproportionate beneficial
effect on children. Accordingly, we have evaluated the potential
environmental health or safety effects of VOC and toxics emissions from
gasoline-fueled mobile sources and gas cans on children. The results of
this evaluation are described below and contained in section IV.
    Exposure to a number of the compounds addressed in this rule may
have a disproportionate effect on children. First, exposure to
carcinogens that cause cancer through a mutagenic mode of action during
childhood development may have an incrementally disproportionate
impact. Because of their small size, increased activity, and increased
ventilation rates compared to adults, children may have greater
exposure to these compounds in the ambient air, on a unit body weight
basis. Moreover, for PM, because children's breathing rates are higher,
their exposures may be higher and because their respiratory systems are
still developing, children may be more susceptible to problems from
exposure to respiratory irritants. The public is invited to submit or
identify peer-reviewed studies and data, of which EPA may not be aware,
that assessed results of early life exposure to the pollutants
addressed by this rule.

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

    This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. If promulgated,
the gasoline benzene provisions of the proposed rule would shift about
22,000 barrels per day of benzene from the gasoline market to the
petrochemical market. This volume represents about 0.2 percent of
nationwide gasoline production. The actual impact of the rule on the
gasoline market, however, is likely to be less due to offsetting
changes in the production of petrochemicals, as well as expected growth
in the petrochemical market absent this rule. The major sources of
benzene for the petrochemical market other than reformate from gasoline
production are also derived from gasoline components or gasoline
feedstocks. Consequently, the expected shift toward more benzene
production from reformate due to this proposed rule would be offset by
less benzene produced from other gasoline feedstocks.
    The rule would require refiners to use a small additional amount of
energy in processing gasoline to reduce benzene levels, primarily due
to the increased energy used for benzene extraction. Our modeling of
increased energy use indicates that the process energy used by refiners
to produce gasoline would increase by about one percent. Overall,

we believe that the proposed rule would result in no significant
adverse energy impacts.
    The proposed gasoline benzene provisions would not affect the
current gasoline distribution practices.
    We discuss our analysis of the energy and supply effects of the
proposed gasoline benzene standard further in section IX of this
preamble and in Chapter 9 of the Regulatory Impact Analysis.
    The fuel supply and energy effects described above would be offset
substantially by the positive effects on gasoline supply and energy use
of the proposed gas can standards also proposed in today's action.
These proposed provisions would greatly reduce the gasoline lost to
evaporation from gas cans. This would in turn reduce the demand for
gasoline, increasing the gasoline supply and reducing the energy used
in producing gasoline.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
    The proposed rulemaking involves technical standards. Therefore,
the Agency conducted a search to identify potentially applicable
voluntary consensus standards. However, we identified no such
standards. Therefore, for the cold temperature NMHC standards, EPA
proposes to use the existing EPA cold temperature CO test procedures
(manufacturers currently measure hydrocarbon emissions with current
cold CO test procedures), which were adopted in a previous EPA
rulemaking (1992). The fuel standards referenced in today's proposed
rule involve the measurement of gasoline fuel parameters. The
measurement standards for gasoline fuel parameters referenced in
today's proposal are government-unique standards that were developed by
the Agency through previous rulemakings. Both the cold temperature CO
test procedures and the measurement standards for gasoline fuel
parameters have served the Agency's emissions control goals well since
their implementation and have been well accepted by industry. For gas
cans, EPA is proposing new procedures for measuring hydrocarbon
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.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 directs Federal agencies to ``determine
whether their programs, policies, and activities have
disproportionately high adverse human health or environmental effects
on minority populations' (sections 3-301 and 3-302). In developing this
proposed rule, EPA assessed environmental justice issues that may be
relevant to this proposal (see section IV of this proposed rule and
chapter 3 of the Draft Regulatory Impact Analysis).
    The proposed rule would reduce VOC and toxics emissions from
gasoline-fueled mobile sources (particularly highway light-duty
vehicles) and gas cans, and thus, it would decrease the amount of air
pollution to which the entire population is exposed. EPA evaluated the
population residing close to high traffic density (near roadways), and
we found that this population has demographic differences from the
general population, including a greater fraction of lower income and
minority residents. Since the proposed rule would reduce emissions from
roadways, those living nearby (more likely to be lower income and
minority residents) are likely to have a disproportionate benefit from
the proposed rule. Thus, this proposed rule does not have a
disproportionately high adverse human health or environmental effect on
minority populations.

XIII. Statutory Provisions and Legal Authority

    Statutory authority for the fuels controls proposed in today's
document can be found in sections 202 and 211(c) of the Clean Air Act
(CAA), as amended, 42 U.S.C. sections 7521 and 7545(c). Additional
support for the procedural and enforcement-related aspects of the fuel
controls in today's proposal, including the proposed recordkeeping
requirements, come from sections 114(a) and 301(a) of the CAA, 42
U.S.C. sections 7414(a) and 7601(a).
    Statutory authority for the vehicle controls proposed in this
document can be found in sections 202, 206, 207, 208, and 301 of the
CAA, 42 U.S.C. sections 7521, 7525, 7541, 7542 and 7601.
    Statutory authority for the portable gasoline container controls
proposed in today's document can be found in sections 183(e) and 111,
42 U.S.C. sections 7511b(e) and 7411.

List of Subjects

40 CFR Part 59

    Environmental protection, Administrative practice and procedure,
Confidential business information, Incorporation by reference,
Labeling, Consumer or Commercial Products pollution, Penalties,
Reporting and recordkeeping requirements.

40 CFR Part 80

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

40 CFR Part 85

    Environmental protection, Administrative practice and procedure,
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, Incorporation by reference,
Labeling, Motor vehicle pollution, Penalties, Reporting and
recordkeeping requirements.

    Dated: February 28, 2006.
Stephen L. Johnson,
Administrator.
    For the reasons set forth in the preamble, parts 59, 80, 85 and 86
of title 40 of the Code of Federal Regulations are proposed to be
amended as follows:

PART 59--NATIONAL VOLATILE ORGANIC COMPOUND EMISSION STANDARDS FOR
CONSUMER AND COMMERCIAL PRODUCTS

    1. The authority citation for part 59 continues to read as follows:

    Authority: 42 U.S.C. 7414 and 7511b(e).

    2. Subpart F is added to part 59 to read as follows:

Subpart F--Control of Evaporative Emissions From New and In-Use
Portable Gasoline Containers

Sec.

Overview and Applicability

59.600 Does this subpart apply for my products?
59.601 Do the requirements of this subpart apply to me?
59.602 What are the general prohibitions and requirements of this
subpart?
59.603 How must manufacturers apply good engineering judgment?
59.605 What portable gasoline containers are excluded from this
subpart's requirements?
59.607 Submission of information.

Emission Standards and Related Requirements

59.611 What evaporative emission requirements apply under this
subpart?
59.612 What emission-related warranty requirements apply to me?
59.613 What operation and maintenance instructions must I give to
buyers?
59.615 How must I label and identify the portable gasoline
containers I produce?

Certifying Emission Families

59.621 Who may apply for a certificate of conformity?
59.622 What are the general requirements for obtaining a certificate
of conformity and producing portable gasoline containers under it?
59.623 What must I include in my application?
59.624 How do I amend my application for certification?
59.625 How do I select emission families?
59.626 What emission testing must I perform for my application for a
certificate of conformity?
59.627 How do I demonstrate that my emission family complies with
evaporative emission standards?
59.628 What records must I keep and what reports must I send to EPA?
59.629 What decisions may EPA make regarding my certificate of
conformity?
59.630 EPA testing.
59.650 General testing provisions.
59.652 Other procedures.
59.653 How do I test portable gasoline containers?

Special Compliance Provisions

59.660 Exemption from the standards.
59.662 What temporary provisions address hardship due to unusual
circumstances?
59.663 What are the provisions for extending compliance deadlines
for manufacturers under hardship?
59.664 What are the requirements for importing portable gasoline
containers into the United States?

Definitions and Other Reference Information

59.680 What definitions apply to this subpart?
59.685 What symbols, acronyms, and abbreviations does this subpart
use?
59.695 What provisions apply to confidential information?
59.697 State actions.
59.698 May EPA enter my facilities for inspections?
59.699 How do I request a hearing?

Subpart F--Control of Evaporative Emissions From New and In-Use
Portable Gasoline Containers

Overview and Applicability

Sec.  59.600  Does this subpart apply for my products?

    (a) Except as provided in Sec.  59.605 and paragraph (b) and (c) of
this section, the regulations in this subpart F apply for all portable
gasoline containers (defined in Sec.  59.680) beginning January 1,
2009.
    (b) See Sec.  59.602(a) and (b) to determine how to apply the
provisions of this subpart for containers that were manufactured before
January 1, 2009.

Sec.  59.601  Do the requirements of this subpart apply to me?

    (a) Unless specified otherwise in this subpart, the requirements
and prohibitions of this subpart apply to all manufacturers and
importers of portable gasoline containers. Certain prohibitions in
Sec.  59.602 apply to all other persons.
    (b) New portable gasoline containers that are subject to the
emissions standards of this part must be covered by a certificate of
conformity that is issued to the manufacturer of the container. If more
than one person meets the definition of manufacturer for a portable
gasoline container, see Sec.  59.621 to determine if you are the
manufacturer who may apply for and receive a certificate of conformity.
    (c) Unless specifically noted otherwise, the term ``you'' means
manufacturers, as defined in Sec.  59.680.

Sec.  59.602  What are the general prohibitions and requirements of
this subpart?

    (a) General prohibition for manufacturers and importers. No
manufacturer or importer may sell, offer for sale, introduce or deliver
for introduction into commerce in the United States, or import any new
portable gasoline container that is subject to the emissions standards
of this subpart and is manufactured after December 31, 2008 unless it
is covered by a valid certificate of conformity, it is labeled as
required, and it complies with all of the applicable requirements of
this subpart, including complies with the emissions standards for its
useful life. After June 30, 2009, no manufacturer or importer may sell,
offer for sale, introduce into commerce in the United States, or import
any new portable gasoline container that was manufactured prior to
January 1, 2009.
    (b) General prohibition for wholesale distributors. No wholesale
distributor may sell, offer for sale, or distribute any portable
gasoline container that is subject to the emissions standards of this
subpart and is manufactured after December 31, 2008 unless it is
covered by a valid certificate of conformity and is labeled as
required. After December 31, 2009, no wholesale distributor may sell,
offer for sale, or distribute any portable gasoline container that was
manufactured prior to January 1, 2009. After December 31, 2009, all new
portable gasoline containers shall be deemed to be manufactured after
December 31, 2008 unless they are in retail inventory.
    (c) Reporting and recordkeeping. (1) You must keep the records and
submit the reports specified in Sec.  59.628. Records must be retained
for at least 5 years from the date of manufacture or importation and
must be supplied to EPA upon request.
    (2) No person may alter, destroy, or falsify any record or report
required by this subpart.
    (d) Testing and access to facilities. You may not keep us from
entering your facility to test inspect if we are authorized to do so.
Also, you must perform the tests we require (or have the tests done for
you). Failure to perform this testing is prohibited.
    (e) Warranty. You may not fail to offer, provide notice of, or
honor the emissions warranty required under this subpart.
    (f) Replacement components. No person may sell, offer for sale,
introduce or deliver for introduction into commerce in the United
States, import, or install any replacement component for portable
gasoline containers subject to the standards of this subpart where the
component has the effect of disabling, bypassing, or rendering
inoperative the emissions controls of the containers.
    (g) Violations. If a person violates any prohibition or requirement
of this subpart or the Act concerning portable gasoline containers, it
shall be considered a separate violation for each portable gasoline
container.
    (h) Assessment of penalties and injunctions. We may assess
administrative penalties, bring a civil action to assess and recover
civil penalties, bring a civil action to enjoin and restrain
violations, or bring criminal action as provided by the Clean Air Act.

Sec.  59.603  How must manufacturers apply good engineering judgment?

    (a) In addition to other requirements and prohibitions set forth in
this subpart, you must use good engineering judgment for decisions
related to any requirements under this subpart. This

includes your applications for certification, any testing you do to
show that your portable gasoline containers comply with requirements
that apply to them, and how you select, categorize, determine, and
apply these requirements.
    (b) Upon request, you must provide EPA a written description of the
engineering judgment in question. Such information must be provided
within 15 working days unless EPA specifies a different period of time
to respond.
    (c) We may reject your decision if it is not based on good
engineering judgment or is otherwise inconsistent with the requirements
that apply, and we may:
    (1) Suspend, revoke, or void a certificate of conformity if we
determine you used incorrect or incomplete information or failed to
consider relevant information, or that your decision was not based on
good engineering judgment; or
    (2) Notify you that we believe any aspect of your application or
other information submission may be incorrect or invalid due to lack of
good engineering judgment or other cause. Unless a different period of
time is specified, you will have 30 days to respond to our notice and
specifically address our concerns. After considering your information,
we will notify regarding our finding, which may include the actions
provided in paragraph (c)(1) of this section.
    (d) If you disagree with our conclusions under paragraph (c) of
this section, you may file a request for a hearing with the Designated
Compliance Officer as described in Sec.  59.699. In your request, you
must specifically state your objections, and include relevant data or
supporting analysis. The request must be signed by your authorized
representative. If we agree that your request raises a substantial
factual issue, we will hold the hearing according to Sec.  59.699.

Sec.  59.605  What portable gasoline containers are excluded from this
subpart's requirements?

    This section describes exclusions that apply to certain portable
gasoline containers. The prohibitions and requirements of this subpart
do not apply for containers excluded under this section. Exclusions
under this section are based on inherent characteristics of the
containers. See Sec.  59.660 for exemptions that apply based on special
circumstances.
    (a) Containers approved as safety cans consistent with the
requirements of Title 29, part 1926, subpart F, of the Code of Federal
Regulations (29 CFR 1926.150 through 1926.152) are excluded. Such cans
generally have a flash-arresting screens, spring-closing lids and spout
covers and have been approved by a nationally recognized testing
laboratory such as Factory Mutual Engineering Corp., Underwriters'
Laboratories, Inc., or Federal agencies such as Bureau of Mines, or
U.S. Coast Guard.
    (b) Containers with a nominal capacity of less than 0.25 gallons or
more than 10.0 gallons are excluded.
    (c) Containers designed and marketed solely to deliver fuel
directly to nonroad engines during engine operation, such as containers
with a connection for a fuel line and a reserve fuel area, are
considered to be nonroad fuel tanks, and are thus excluded.

Sec.  59.607  Submission of information.

    (a) You are responsible for all statements you make to us related
to this subpart F, including information not required during
certification. You are required to provide truthful and complete
information. This subpart describes the consequences of failing to meet
this obligation. The consequences also may include prosecution under 18
U.S.C. 1001 and 42 U.S.C. 7431(c)(2).
    (b) We may require an officer or authorized representative of your
company with knowledge of the other information contained in the
submittal to approve and sign any submission of information to us, and
to certify that all of the information submitted is accurate and
complete.

Emission Standards and Related Requirements

Sec.  59.611  What evaporative emission requirements apply under this
subpart?

    (a) Emissions from portable gasoline containers may not exceed 0.30
grams per gallon per day when measured with the test procedures in
Sec. Sec.  59.650 through 59.653. This procedure measures diurnal
venting emissions and permeation emissions.
    (b) For the purpose of this section, portable gasoline containers
include spouts, caps, gaskets, and other parts provided with the
container.
    (c) The following general requirements also apply for all portable
gasoline containers subject to the standards of this subpart:
    (1) Prohibited controls. You may not design your emission-control
systems so that they cause or contribute to an unreasonable risk to
public health, welfare, or safety while operating. You may not design
your portable gasoline containers to have adjustable parameters unless
the containers will meet all the requirements of this subpart when
adjusted anywhere within the physically adjustable range. You may not
equip your portable gasoline containers with a defeat device, or
intentionally produce your containers to enable the use of a defeat
device. A defeat device is an element of design (either original or
replacement) that is not approved in advance by EPA and that reduces
the effectiveness of emission controls under conditions that the
portable gasoline containers may reasonably be expected to encounter
during normal use.
    (2) Leaks. You must design and manufacture your containers to be
free of leaks. This requirement applies when your container is upright,
partially inverted, or completely inverted.
    (3) Refueling. You are required to design your portable gasoline
containers to minimize spillage during refueling to the extent
practical. This requires that you use good engineering judgment to
avoid designs that will make it difficult to refuel typical vehicle and
equipment designs without spillage.
    (d) Portable gasoline containers must meet the standards and
requirements specified in this subpart throughout the useful life of
the container. The useful life of the container is five years beginning
on the date of sale to the ultimate purchaser.

Sec.  59.612  What emission-related warranty requirements apply to me?

    (a) General requirements. You must warrant to the ultimate
purchaser that the new portable gasoline container, including all parts
of its evaporative emission-control system, is:
    (1) Designed, built, and equipped so it conforms at the time of
sale to the ultimate purchaser with the requirements of this subpart.
    (2) Is free from defects in materials and workmanship that may keep
it from meeting these requirements.
    (b) Warranty notice and period. Your emission-related warranty must
be valid for a minimum of one year from the date of sale to the
ultimate purchaser.
    (c) Notice. You must provide a warranty notice with each container.

Sec.  59.613  What operation and maintenance instructions must I give
to buyers?

    You must provide the ultimate purchaser of the new portable
gasoline container written instructions for properly maintaining and
using the emission-control system.

Sec.  59.615  How must I label and identify the portable gasoline
containers I produce?

    This section describes how you must label your portable gasoline
containers.

    (a) At the time of manufacture, indelibly mark the month and year
of manufacture on each container.
    (b) Mold into or affix a legible label identifying each portable
gasoline container. The label must be:
    (1) Attached so it is not easily removable.
    (2) Secured to a part of the container that can be easily viewed
when the can is in use, not on the bottom of the container.
    (3) Written in English.
    (c) The label must include:
    (1) The heading ``EMISSION CONTROL INFORMATION''.
    (2) Your full corporate name and trademark.
    (3) A standardized identifier such as EPA's standardized
designation for the emission families, the model number, or the part
number.
    (4) This statement: ``THIS CONTAINER COMPLIES WITH U.S. EPA
EMISSION REGULATIONS FOR PORTABLE GASOLINE CONTAINERS.''.
    (d) You may add information to the emission control information
label to identify other emission standards that the container meets or
does not meet (such as California standards). You may also add other
information to ensure that the portable gasoline container will be
properly maintained and used.
    (e) You may request EPA to approve modified labeling requirements
in this subpart F if you show that it is necessary or appropriate. We
will approve your request if your alternate label is consistent with
the requirements of this subpart.
    (f) You may identify the name and trademark of another company
instead of their own on your emission control information label,
subject to the following provisions:
    (1) You must have a contractual agreement with the other company
that obligates that company to take the following steps:
    (i) Meet the emission warranty requirements that apply under Sec.
59.612. This may involve a separate agreement involving reimbursement
of warranty-related expenses.
    (ii) Report all warranty-related information to the certificate
holder.
    (2) In your application for certification, identify the company
whose trademark you will use and describe the arrangements you have
made to meet your requirements under this section.
    (3) You remain responsible for meeting all the requirements of this
subpart.

Certifying Emission Families

Sec.  59.621  Who may apply for a certificate of conformity?

    A certificate of conformity may only be issued to the manufacturer
that completes the construction of the portable gasoline container. In
unusual circumstances, upon a petition by a manufacturer, we may allow
another manufacturer of the container to hold the certificate of
conformity. However, in order to hold the certificate, the manufacturer
must demonstrate day-to-day ability to ensure that containers produced
under the certificate will comply with the requirements of this
subpart.

Sec.  59.622  What are the general requirements for obtaining a
certificate of conformity and producing portable gasoline containers
under it?

    (a) You must send us a separate application for a certificate of
conformity for each emission family. A certificate of conformity for
containers is valid from the indicated effective date until the end of
the production period for which it is issued. EPA may require new
certification prior to the end of the production period if EPA finds
that containers are not meeting the standards in use during their
useful life.
    (b) The application must be written in English and contain all the
information required by this subpart and must not include false or
incomplete statements or information (see Sec.  59.629).
    (c) We may ask you to include less information than we specify in
this subpart, as long as you maintain all the information required by
Sec.  59.628.
    (d) You must use good engineering judgment for all decisions
related to your application (see Sec.  59.603).
    (e) An authorized representative of your company must approve and
sign the application.
    (f) See Sec.  59.629 for provisions describing how we will process
your application.
    (g) You may ask us to modify specific provisions for demonstrating
compliance with the requirements of this subpart if they cannot be met
for your portable gasoline container. We may approve your request if we
determine that such a change is consistent with the intent of this
subpart. We will not approve your request if it might lead to less
effective emission control or prevent us from ensuring compliance with
the requirements of this subpart. To make a request, describe in
writing which provision you are unable to meet, why you are unable to
meet it, and how the provision should be modified to address your
concern.
    (h) If we approve your application, we will issue a certificate
that will allow you to produce the containers that you described in
your application for a specified production period. Certificates do not
allow you to produce containers that were not described in your
application, unless we approve the additional containers under Sec.
59.624.

Sec.  59.623  What must I include in my application?

    This section specifies the information that must be in your
application, unless we ask you to include less information under Sec.
59.622(c). We may require you to provide additional information to
evaluate your application.
    (a) Describe the emission family's specifications and other basic
parameters of the emission controls. List each distinguishable
configuration in the emission family. Include descriptions and part
numbers for all detachable components such as spouts and caps.
    (b) Describe and explain the method of emission control.
    (c) Describe the products you selected for testing and the reasons
for selecting them.
    (d) Describe the test equipment and procedures that you used,
including any special or alternate test procedures you used (see Sec.
59.650).
    (e) List the specifications of the test fuel to show that it falls
within the required ranges specified in Sec.  59.650 of this subpart.
    (f) Include the maintenance and use instructions and warranty
information you will give to the ultimate purchaser of each new
portable gasoline container (see Sec.  59.613).
    (g) Describe your emission control information label (see Sec.
59.615).
    (h) State that your product was tested as described in the
application (including the test procedures, test parameters, and test
fuels) to show you meet the requirements of this subpart.
    (i) Present emission data to show your products meet the applicable
emission standards. Where applicable, Sec. Sec.  59.626 and 59.627 may
allow you to submit an application in certain cases without new
emission data.
    (j) Report all test results, including those from invalid tests or
from any other tests, whether or not they were conducted according to
the test procedures of Sec. Sec.  59.650 through 59.653. We may ask you
to send other information to confirm that your tests were valid under
the requirements of this subpart.
    (k) Unconditionally certify that all the products in the emission
family comply with the requirements of this subpart,

other referenced parts of the CFR, and the Clean Air Act.
    (l) Include estimates of U.S.-directed production volumes.
    (m) Include the information required by other sections of this
subpart.
    (n) Include other relevant information, including any additional
information requested by EPA.
    (o) Name an agent for service of process located in the United
States. Service on this agent constitutes service on you or any of your
officers or employees for any action by EPA or otherwise by the United
States related to the requirements of this subpart.

Sec.  59.624  How do I amend my application for certification?

    Before we issue you a certificate of conformity, you may amend your
application to include new or modified configurations, subject to the
provisions of this section. After we have issued your certificate of
conformity, you may send us an amended application requesting that we
include new or modified configurations within the scope of the
certificate, subject to the provisions of this section. You must amend
your application if any changes occur with respect to any information
included in your application.
    (a) You must amend your application before you take either of the
following actions:
    (1) Add a configuration to an emission family. In this case, the
configuration added must be consistent with other configurations in the
emission family with respect to the criteria listed in Sec.  59.625.
    (2) Change a configuration already included in an emission family
in a way that may affect emissions, or change any of the components you
described in your application for certification. This includes
production and design changes that may affect emissions any time during
the portable gasoline containers' lifetime.
    (b) To amend your application for certification, send the
Designated Compliance Officer the following information:
    (1) Describe in detail the addition or change in the configuration
you intend to make.
    (2) Include engineering evaluations or data showing that the
amended emission family complies with all applicable requirements. You
may do this by showing that the original emission data are still
appropriate with respect to showing compliance of the amended family
with all applicable requirements.
    (3) If the original emission data for the emission family are not
appropriate to show compliance for the new or modified configuration,
include new test data showing that the new or modified configuration
meets the requirements of this subpart.
    (c) We may ask for more test data or engineering evaluations. You
must give us these within 30 days after we request them.
    (d) For emission families already covered by a certificate of
conformity, we will determine whether the existing certificate of
conformity covers your new or modified configuration. You may ask for a
hearing if we deny your request (see Sec.  59.699).
    (e) For emission families already covered by a certificate of
conformity and you send us a request to amend your application, you may
sell and distribute the new or modified configuration before we make a
decision under paragraph (d) of this section, subject to the provisions
of this paragraph. If we determine that the affected configurations do
not meet applicable requirements, we will notify you to cease
production of the configurations and any containers from the new or
modified configuration will not be considered covered by the
certificate. In addition, we may require you to recall any affected
containers that you have already distributed, including those sold to
the ultimate purchasers. Choosing to produce containers under this
paragraph (e) is deemed to be consent to recall all containers that we
determine do not meet applicable emission standards or other
requirements and to remedy the nonconformity at no expense to the
owner. If you do not provide information required under paragraph (c)
of this section within 30 days, you must stop producing the new or
modified containers.

Sec.  59.625  How do I select emission families?

    (a) Divide your product line into families of portable gasoline
containers that are expected to have similar emission characteristics
throughout the useful life.
    (b) Group containers in the same emission family if they are the
same in all the following aspects:
    (1) Type of material (including pigments, plasticizers, UV
inhibitors, or other additives).
    (2) Production method.
    (3) Spout design.
    (4) Gasket material/design.
    (5) Emission control strategy.
    (c) You may subdivide a group of containers that is identical under
paragraph (b) of this section into different emission families if you
show the expected emission characteristics are different.
    (d) You may group containers that are not identical with respect to
the things listed in paragraph (b) of this section in the same emission
family if you show that their emission characteristics will be similar
throughout their useful life.

Sec.  59.626  What emission testing must I perform for my application
for a certificate of conformity?

    This section describes the emission testing you must perform to
show compliance with the emission standards in Sec.  59.611.
    (a) Test your products using the procedures and equipment specified
in Sec. Sec.  59.650 through 59.653.
    (b) Select an emission-data unit from each emission family for
testing. You must test a production sample or a preproduction product
that will represent actual production. Select the configuration that is
most likely to exceed (or have emissions nearest to) the applicable
emission standard. For example, for a family of multilayer portable
gasoline containers, test the container with the thinnest barrier
layer. Test 3 identical containers.
    (c) We may measure emissions from any of your products from the
emission family. You must supply your products to us if we choose to
perform confirmatory testing.
    (d) You may ask to use emission data from a previous production
period (carryover) instead of doing new tests, but only if the
emission-data from the previous production period remains the
appropriate emission-data unit under paragraph (b) of this section. For
example, you may not carryover emission data for your family of
containers if you have added a thinner-walled container than was tested
previously.
    (e) We may require you to test a second unit of the same or
different configuration in addition to the unit tested under paragraph
(b) of this section.
    (f) If you use an alternate test procedure under Sec.  59.652 and
later testing shows that such testing does not produce results that are
equivalent to the procedures specified in this subpart, we may reject
data you generated using the alternate procedure and base our
compliance determination on the later testing.

Sec.  59.627  How do I demonstrate that my emission family complies
with evaporative emission standards?

    (a) For purposes of certification, your emission family is
considered in compliance with an evaporative

emission standard in Sec.  59.611(a) if the test results from all
portable gasoline containers in the family that have been tested show
measured emissions levels that are at or below the applicable standard.
    (b) Your emissions family is deemed not to comply if any container
representing that family has test results showing an official emission
level above the standard.
    (c) Round the measured emission level to the same number of decimal
places as the emission standard. Compare the rounded emission levels to
the emission standard.

Sec.  59.628  What records must I keep and what reports must I send to
EPA?

    (a) Organize and maintain the following records:
    (1) A copy of all applications and any summary information you send
us.
    (2) Any of the information we specify in Sec.  59.623 that you were
not required to include in your application.
    (3) A detailed history of each emission-data unit. For each
emission data unit, include all of the following:
    (i) The emission-data unit's construction, including its origin and
buildup, steps you took to ensure that it represents production
containers, any components you built specially for it, and all the
components you include in your application for certification.
    (ii) All your emission tests, including documentation on routine
and standard tests, as specified in Sec. Sec.  59.650 through 59.653,
and the date and purpose of each test.
    (iii) All tests to diagnose emission-control performance, giving
the date and time of each and the reasons for the test.
    (iv) Any other relevant events or information.
    (4) Production figures for each emission family divided by assembly
plant.
    (5) If you identify your portable gasoline containers by lot number
or other identification numbers, keep a record of these numbers for all
the containers you produce under each certificate of conformity.
    (b) Keep data from routine emission tests (such as test cell
temperatures and relative humidity readings) for one year after we
issue the associated certificate of conformity. Keep all other
information specified in paragraph (a) of this section for five years
after we issue your certificate.
    (c) Store these records in any format and on any media, as long as
you can promptly send us organized, written records in English if we
ask for them. You must keep these records readily available. We may
review them at any time.
    (d) Send us copies of any maintenance instructions or explanations
if we ask for them.
    (e) Send us an annual warranty report summarizing by emissions
family successful warranty claims under Sec.  59.612, including the
reason for the claim. You must submit the report by July 1 for the
preceding calendar year.

Sec.  59.629  What decisions may EPA make regarding my certificate of
conformity?

    (a) If we determine your application is complete and shows that the
emission family meets all the requirements of this subpart and the Act,
we will issue a certificate of conformity for your emission family for
the specified production period. We may make the approval subject to
additional conditions.
    (b) We may deny your application for certification if we determine
that your emission family fails to comply with emission standards or
other requirements of this subpart or the Act. Our decision may be
based on a review of all information available to us. If we deny your
application, we will explain why in writing.
    (c) In addition, we may deny your application or suspend, revoke,
or void your certificate if you do any of the following:
    (1) Refuse to comply with any testing or reporting requirements.
    (2) Submit false or incomplete information.
    (3) Render inaccurate any test data.
    (4) Deny us from completing authorized activities despite our
presenting a warrant or court order (see Sec.  59.698). This includes a
failure to provide reasonable assistance.
    (5) Produce portable gasoline containers for importation into the
United States at a location where local law prohibits us from carrying
out authorized activities.
    (6) Fail to supply requested information or amend your application
to include all portable gasoline containers being produced.
    (7) Take any action that otherwise circumvents the intent of the
Act or this subpart.
    (d) If we deny your application or suspend, revoke, or void your
certificate, you may ask for a hearing (see Sec.  59.699).

Sec.  59.630  EPA testing.

    We may test any portable gasoline container subject to the
standards of this subpart.
    (a) Certification and production sample testing. Upon our request,
a manufacturer must supply a prototype container or a reasonable number
of production samples to us for verification testing. These samples
will generally be tested using the full test procedure of Sec.  59.653.
    (b) In-use testing. We may test in-use containers using the test
procedure of Sec.  59.653 without preconditioning.

Sec.  59.650  General testing provisions.

    (a) The test procedures of this subpart are addressed to you as a
manufacturer, but they apply equally to anyone who does testing for
you.
    (b) Unless we specify otherwise, the terms ``procedures'' and
``test procedures'' in this subpart include all aspects of testing,
including the equipment specifications, calibrations, calculations, and
other protocols and procedural specifications needed to measure
emissions.
    (c) The specification for gasoline to be used for testing is given
in 40 CFR 1065.210. Use the grade of gasoline specified for general
testing. Blend this grade of gasoline with reagent grade ethanol in a
volumetric ratio of 90.0 percent gasoline to 10.0 percent ethanol. You
may use ethanol that is less pure if you can demonstrate that it will
not affect your ability to demonstrate compliance with the applicable
emission standards.
    (d) Accuracy and precision of all temperature measurements must be
2.2 [deg]C or better.
    (e) Accuracy and precision of mass balances must be sufficient to
ensure accuracy and precision of two percent or better for emission
measurements for products at the maximum level allowed by the standard.
The readability of the display may not be coarser than half of the
required accuracy and precision.

Sec.  59.652  Other procedures.

    (a) Your testing. The procedures in this subpart apply for all
testing you do to show compliance with emission standards, with certain
exceptions listed in this section.
    (b) Our testing. These procedures generally apply for testing that
we do to determine if your portable gasoline containers complies with
applicable emission standards. We may perform other testing as allowed
by the Act.
    (c) Exceptions. We may allow or require you to use procedures other
than those specified in this subpart in the following cases.
    (1) You may request to use special procedures if your portable
gasoline containers cannot be tested using the specified procedures. We
will approve your request if we determine that it would produce
emission measurements that represent in-use operation and we determine
that it can be used to show

compliance with the requirements of the standard-setting section.
    (2) You may ask to use emission data collected using other
procedures, such as those of the California Air Resources Board. We
will approve this only if you show us that using these other procedures
do not affect your ability to show compliance with the applicable
emission standards. This generally requires emission levels to be far
enough below the applicable emission standards so that any test
differences do not affect your ability to state unconditionally that
your containers will meet all applicable emission standards when tested
using the specified test procedures.
    (3) You may request to use alternate procedures that are equivalent
to allowed procedures, or more accurate or more precise than allowed
procedures.
    (d) You may not use other procedures under paragraph (c) of this
section until we approve your request.

Sec.  59.653  How do I test portable gasoline containers?

    You must test the portable gasoline container as described in your
application, with the applicable spout and cap attached. Tighten
fittings in a manner representative of how they would be tightened by a
typical user.
    (a) Preconditioning for durability. Complete the following steps at
the start of testing, unless we determine that omission of one or more
of these durability steps will not affect the emissions from your
container.
    (1) Pressure cycling. Perform a pressure test by sealing the
container and cycling it between +13.8 and -1.7 kPa (+2.0 and -0.5
psig) and back to +13.8 kPa for 10,000 cycles at a rate of 60 seconds
per cycle.
    (2) UV exposure. Perform a sunlight-exposure test by exposing the
container to an ultraviolet light of at least 24 W/m2 (0.40
W-hr/m2/min) on the container surface for at least 450
hours. Alternatively, the container may be exposed to direct natural
sunlight for an equivalent period of time, as long as you ensure that
the container is exposed to at least 450 daylight hours.
    (3) Slosh testing. Perform a slosh test by filling the portable
gasoline container to 40 percent of its capacity with the fuel
specified in paragraph (e) of this section and rocking it at a rate of
15 cycles per minute until you reach one million total cycles. Use an
angle deviation of +15[deg] to -15[deg] from level. This test must be
performed at a temperature of 28 [deg]C  5[deg]C.
    (4) Spout actuation. Perform the following spout actuation and
inversion steps at the end on the slosh testing, and at the end of the
preconditioning soak.
    (i) Perform one complete actuation/inversion cycle per day for ten
days.
    (ii) One actuation/inversion cycle consists of the following steps:
    (A) Remove and replace the spout to simulate filling the container.
    (B) Slowly invert the container and keep it inverted for at least 5
seconds to ensure that the spout and mechanisms become saturated with
fuel. Any fuel leaking from any part of the container will denote a
leak and will be reported as part of certification. Once completed,
place the container on a flat surface in the upright position.
    (C) Actuate the spout by fully opening and closing without
dispensing fuel. The spout must return to the closed position without
the aid of the operator (e.g., pushing or pulling the spout closed).
Repeat for a total of 10 actuations. If at any point the spout fails to
return to the closed position, the container fails the test.
    (D) Repeat the step contained in paragraph (a)(4)(ii)(B) of this
section (i.e., the inversion step).
    (E) Repeat the steps contained in paragraph (a)(4)(ii)(C) of this
section (i.e., ten actuations).
    (b) Preconditioning fuel soak. Complete the following steps before
a diurnal emission test: (1) Fill the portable gasoline container with
the specified fuel to its nominal capacity, seal it using the spout,
and allow it to soak at 28 5 [deg]C for at least 20 weeks.
You are not required to soak the container for more than 20 weeks
unless it has been determined that a longer soak period is needed to
achieve a stabilized emissions rate. Alternatively, the container may
be soaked for a shorter period of time at a higher temperature if you
can show that the hydrocarbon permeation rate has stabilized. You may
count the time of the slosh testing as part of the 20 weeks.
    (2) Pour the fuel out of the container and immediately refill to 50
percent of nominal capacity. Be careful to not spill any fuel on the
container. Wipe the outside of the container as needed to remove any
liquid fuel that may have spilled on it.
    (3) Seal the container using the spout and cap assemblies that will
used to seal the openings in a production container. Leave other
openings on the container (such as vents) open unless they are
automatically closing and unlikely for the user to leave open during
typical storage.
    (c) Reference container. A reference tank is required to correct
for buoyancy effects that may occur during testing. Prepare the
reference tank as follows:
    (1) Obtain a second tank that is identical to the test tank. You
may not use a tank that has previously contained fuel or any other
contents that might affect the stability of its mass.
    (2) Fill the reference tank with enough dry sand (or other inert
material) so that the mass of the reference tank is approximately the
same as the test tank when filled with fuel. Use good engineering
judgment to determine how similar the mass of the reference tank needs
to be to the mass of the test tank considering the performance
characteristics of your balance.
    (3) Ensure that the sand (or other inert material) is dry. This may
require heating the tank or applying a vacuum to it.
    (4) Seal the tank.
    (d) Diurnal test run. To run the test, take the steps specified in
this paragraph (d) for a portable gasoline container that was
preconditioned as specified in paragraph (a) of this section.
    (1) Stabilize the fuel temperature within the portable gasoline
container at 22.2 [deg]C. Vent the container at this point to relieve
any positive or negative pressure that may have developed during
stabilization.
    (2) Weigh the sealed reference container and record the weight.
Place the reference on the balance and tare it so that it reads zero.
Place the sealed test portable gasoline container on the balance and
record the difference between the test container and the reference
container. This value is Minitial Take this measurement
within 8 hours of filling the test container with fuel as specified in
paragraph (b)(2) of this section.
    (2) Immediately place the portable gasoline container within a well
ventilated, temperature-controlled room or enclosure. Do not spill or
add any fuel.
    (3) Close the room or enclosure.
    (4) Follow the temperature profile in the following table for all
portable gasoline containers. Use good engineering judgment to follow
this profile as closely as possible. You may use linearly interpolated
temperatures or a spline fit for temperatures between the hourly
setpoints.

   Table 1 of Sec.   59.653.--Diurnal Temperature Profile for Portable
                           Gasoline Containers
------------------------------------------------------------------------
                                                              Ambient
                                                            Temperature
                                                            (C) Profile
                      Time (hours)                         for Portable
                                                             Gasoline
                                                            Containers
------------------------------------------------------------------------
0.......................................................            22.2
1.......................................................            22.5
2.......................................................            24.2
3.......................................................            26.8
4.......................................................            29.6
5.......................................................            31.9
6.......................................................            33.9
7.......................................................            35.1
8.......................................................            35.4
9.......................................................            35.6
10......................................................            35.3
11......................................................            34.5
12......................................................            33.2
13......................................................            31.4
14......................................................            29.7
15......................................................            28.2
16......................................................            27.2
17......................................................            26.1
18......................................................            25.1
19......................................................            24.3
20......................................................            23.7
21......................................................            23.3
22......................................................            22.9
23......................................................            22.6
24......................................................            22.2
------------------------------------------------------------------------

    (5) At the end of the diurnal period, retare the balance using the
reference container and weigh the portable gasoline container. Record
the difference in mass between the reference container and the test.
This value is Mfinal
    (6) Subtract Mfinal from Minitial; and divide
the difference by the nominal capacity of the container (using at least
three significant figures) to calculate the g/gallon/day emission rate:

Emission rate = (Minitial-Mfinal)/(nominal
capacity)/(one day)

    (7) Round your result to the same number of decimal places as the
emission standard.
    (8) Instead of determining emissions by weighing the container
before and after the diurnal temperature cycle, you may place the
container in a SHED meeting the specifications of 40 CFR 86.107-
96(a)(1) and measure emissions directly. Immediately following the
stabilization in paragraph (d)(1) of this section, purge the SHED and
follow the temperature profile from paragraph (d)(4) of this section.
Start measuring emissions when you start the temperature profile.
    (e) For metal containers, you may demonstrate for certification
that your portable gasoline containers comply with the evaporative
emission standards without performing the pre-soak or container
durability cycles (i.e., the pressure cycling, UV exposure, and slosh
testing) specified in this section. For other containers, you may
demonstrate compliance without performing the durability cycles
specified in this section only if we approve it after you have
presented data clearly demonstrating that the cycle or cycles do not
negatively impact the permeation rate of the materials used in the
containers.

Special Compliance Provisions

Sec.  59.660  Exemption from the standards.

    In certain circumstances, we may exempt portable gasoline
containers from the evaporative emission standards and requirements of
Sec.  59.611 and the prohibitions and requirements of Sec.  59.602. You
do not need an exemption for any containers that you own but do not
sell, offer for sale, introduce or deliver for introduction into U.S.
commerce, or import into the United States. Submit your request for an
exemption to the Designated Compliance Officer.
    (a) Portable gasoline containers that are intended for export only
and are in fact exported are exempt provided they are clearly labeled
as being for export only. Keep records for five years of all portable
gasoline containers that you manufacture for export. Any introduction
into U.S. commerce for any purpose other than export is considered to
be a violation of Sec.  59.602 by the manufacturer. You do not need to
request this exemption.
    (b) You may ask us to exempt portable gasoline containers that you
will purchase, sell, or distribute for the sole purpose of testing
them.
    (c) You may ask us to exempt portable gasoline containers for the
purpose of national security, as long as your request is endorsed by an
agency of the federal government responsible for national defense. In
your request, explain why you need the exemption.
    (d) You may ask us to exempt containers that are designed and
marketed solely for rapidly refueling racing applications which are
designed to create a leak proof seal with the target tank or are
designed to connect with a receiver installed on the target tank. This
exemption is generally intended for containers used to rapidly refuel a
race car during a pit stop and similar containers. In your request,
explain how why these containers are unlikely to be used for nonracing
applications. We may limit these exemptions to those applications that
are allowed to use gasoline exempted under 40 CFR 80.200.
    (e) EPA may impose reasonable conditions on any exemption,
including a limit on the number of containers that are covered by an
exemption.

Sec.  59.662  What temporary provisions address hardship due to unusual
circumstances?

    (a) After considering the circumstances, we may permit you to
introduce into commerce exempt you from the evaporative emission
standards and requirements of Sec.  59.611 of this subpart and the
prohibitions and requirements of Sec.  59.602 for specified portable
gasoline containers that do not comply with emission standards if all
the following conditions apply:
    (1) Unusual circumstances that are clearly outside your control and
that could not have been avoided with reasonable discretion prevent you
from meeting requirements from this subpart.
    (2) You exercised prudent planning and were not able to avoid the
violation; you have taken all reasonable steps to minimize the extent
of the nonconformity.
    (3) Not having the exemption will jeopardize the solvency of your
company.
    (4) No other allowances are available under the regulations in this
chapter to avoid the impending violation.
    (b) To apply for an exemption, you must send the Designated Officer
a written request as soon as possible before you are in violation. In
your request, show that you meet all the conditions and requirements in
paragraph (a) of this section.
    (c) Include in your request a plan showing how you will meet all
the applicable requirements as quickly as possible.
    (d) You must give us other relevant information if we ask for it.
    (e) We may include reasonable additional conditions on an approval
granted under this section, including provisions to recover or
otherwise address the lost environmental benefit or paying fees to
offset any economic gain resulting from the exemption.
    (f) We may approve extensions of up to one year. We may review and
revise an extension as reasonable under the circumstances.
    (g) Add a legible label, written in block letters in English, to a
readily visible part of each container exempted under this section.
This label must prominently include at least the following items:
    (1) Your corporate name and trademark.
    (2) The statement ``EXEMPT UNDER 40 CFR 59.662.''.

Sec.  59.663  What are the provisions for extending compliance
deadlines for manufacturers under hardship?

    (a) After considering the circumstances, we may extend the
compliance deadline for you to meet new emission standards, as long as
you meet all the conditions and requirements in this section.
    (b) To apply for an extension, you must send the Designated
Compliance Officer a written request. In your request, show that all
the following conditions and requirements apply:
    (1) You have taken all possible business, technical, and economic
steps to comply.
    (2) Show that the burden of compliance costs prevents you from
meeting the requirements of this subpart by the required compliance
date.
    (3) Not having the exemption will jeopardize the solvency of your
company.
    (4) No other allowances are available under the regulations in this
subpart to avoid the impending violation.
    (c) In describing the steps you have taken to comply under
paragraph (b)(1) of this section, include at least the following
information:
    (1) Describe your business plan, showing the range of projects
active or under consideration.
    (2) Describe your current and projected financial standing, with
and without the burden of complying in full with the applicable
regulations in this subpart by the required compliance date.
    (3) Describe your efforts to raise capital to comply with
regulations in this subpart.
    (4) Identify the engineering and technical steps you have taken or
plan to take to comply with regulations in this subpart.
    (5) Identify the level of compliance you can achieve. For example,
you may be able to produce containers that meet a somewhat less
stringent emission standard than the regulations in this subpart
require.
    (d) Include in your request a plan showing how you will meet all
the applicable requirements as quickly as possible.
    (e) You must give us other relevant information if we ask for it.
    (f) An authorized representative of your company must sign the
request and include the statement: ``All the information in this
request is true and accurate, to the best of my knowledge.''.
    (g) Send your request for this extension at least nine months
before the relevant deadline.
    (h) We may include reasonable requirements on an approval granted
under this section, including provisions to recover or otherwise
address the lost environmental benefit. For example, we may require
that you meet a less stringent emission standard.
    (i) We may approve extensions of up to one year. We may review and
revise an extension as reasonable under the circumstances.
    (j) Add a permanent, legible label, written in block letters in
English, to a readily visible part of each container exempted under
this section. This label must prominently include at least the
following items:
    (1) Your corporate name and trademark.
    (2) The statement ``EXEMPT UNDER 40 CFR 59.663.''.

Sec.  59.664  What are the requirements for importing portable gasoline
containers into the United States?

    As specified in this section, we may require you to post a bond if
you import into the U.S. containers that are subject to the standards
of this subpart. See paragraph (f) of this section for the requirements
related to importing containers that have been certified by someone
else.
    (a) Prior to importing containers into the U.S., we may require you
to post a bond to cover any potential enforcement actions under the
Clean Air Act if you cannot demonstrate to us that you have assets of
an appropriate liquidity readily available in the United States with a
value equal to the retail value of the containers that you will import
during the calendar year.
    (b) We may set the value of the bond up to five dollars per
container.
    (c) You may meet the bond requirements of this section by obtaining
a bond from a third-party surety that is cited in the U.S. Department
of Treasury Circular 570, ``Companies Holding Certificates of Authority
as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring
Companies'' (http://www.fms.treas.gov/c570/c570.html#certified).

    (d) If you forfeit some or all of your bond in an enforcement
action, you must post any appropriate bond for continuing importation
within 90 days after you forfeit the bond amount.
    (e) You will forfeit the proceeds of the bond posted under this
section if you need to satisfy any United States administrative final
order or judicial judgment against you arising from your conduct in
violation of this subpart.
    (f) This paragraph (f) applies if you import for resale containers
that have been certified by someone else. You and the certificate
holder are each responsible for compliance with the requirements of
this subpart and the Clean Air Act. No bond is required under this
section if either you or the certificate holder meet the conditions in
paragraph (a) of this section. Otherwise, the importer must comply with
the bond requirements of this section.

Definitions and Other Reference Information

Sec.  59.680  What definitions apply to this subpart?

    The following definitions apply to this subpart. The definitions
apply to all subparts unless we note otherwise. All undefined terms
have the meaning the Act gives to them. The definitions follow:
    Act means the Clean Air Act, as amended, 42 U.S.C. 7401--7671q.
    Adjustable parameter means any device, system, or element of design
that someone can adjust and that, if adjusted, may affect emissions.
You may ask us to exclude a parameter if you show us that it will not
be adjusted in use in a way that affects emissions.
    Certification means the process of obtaining a certificate of
conformity for an emission family that complies with the emission
standards and requirements in this subpart.
    Certified emission level means the highest official emission level
in an emission family.
    Configuration means a unique combination of hardware (material,
geometry, and size) and calibration within an emission family. Units
within a single configuration differ only with respect to normal
production variability.
    Container means portable gasoline container.
    Designated Compliance Officer means the Manager, Engine Programs
Group (6405-J), U.S. Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460.
    Designated Enforcement Officer means the Director, Air Enforcement
Division (2242A), U.S. Environmental Protection Agency, 1200
Pennsylvania Ave., NW.,Washington, DC 20460.
    Emission-control system means any device, system, or element of
design that controls or reduces the regulated evaporative emissions
from.
    Emission-data unit means a portable gasoline container that is
tested for certification. This includes components tested by EPA.
    Emission-related maintenance means maintenance that substantially
affects emissions or is likely to substantially affect emission
deterioration.
    Emission family has the meaning given in Sec.  59.625.

    Evaporative means relating to fuel emissions that result from
permeation of fuel through the portable gasoline container materials
and from ventilation of the container.
    Good engineering judgment means judgments made consistent with
generally accepted scientific and engineering principles and all
available relevant information. See Sec.  59.603 for the administrative
process we use to evaluate good engineering judgment.
    Hydrocarbon (HC) means total hydrocarbon (THC).
    Manufacture means the physical and engineering process of designing
and/or constructing a portable gasoline container.
    Manufacturer means any person who manufactures a portable gasoline
container for sale in the United States.
    Nominal capacity means the expected volumetric working capacity of
a container.
    Official emission result means the measured emission rate for an
emission-data unit.
    Portable gasoline container means any reusable container designed
and marketed (or otherwise intended) for use by consumers for
receiving, transporting, storing, and dispensing gasoline. For the
purpose of this subpart, all portable fuel containers that are red in
color are deemed to be portable gasoline containers, regardless of how
they are labeled or marketed. Portable fuel containers that are not red
in color and are clearly and permanently labeled for diesel fuel or
kerosene only and not for use with gasoline are not portable gasoline
containers.
    Production period means the period in which a portable gasoline
container will be produced under a certificate of conformity. The
maximum production period is five years.
    Revoke means to terminate the certificate or an exemption for an
emission family. If we revoke a certificate or exemption, you must
apply for a new certificate or exemption before continuing to introduce
the affected containers into commerce. This does not apply to
containers you no longer possess.
    Round has the meaning given in 40 CFR 1065.1001.
    Sealed means lacking openings that would allow liquid or vapor to
escape to the atmosphere under normal operating pressures.
    Suspend means to temporarily discontinue the certificate or an
exemption for an emission family. If we suspend a certificate, you may
not introduce into commerce portable gasoline containers from that
emission family unless we reinstate the certificate or approve a new
one. If we suspend an exemption, you may not introduce into commerce
containers that were previously covered by the exemption unless we
reinstate the exemption.
    Test sample means the collection of portable gasoline containers
selected from the population of an emission family for emission
testing. This may include testing for certification, production-line
testing, or in-use testing.
    Test unit means a portable gasoline container in a test sample.
    Total hydrocarbon means the combined mass of organic compounds
measured by the specified procedure for measuring total hydrocarbon,
expressed as a hydrocarbon with a hydrogen-to-carbon mass ratio of
1.85:1.
    Ultimate purchaser means, with respect to any portable gasoline
container, the first person who in good faith purchases such a
container for purposes other than resale.
    Ultraviolet light means electromagnetic radiation with a wavelength
between 300 and 400 nanometers.
    United States means the States, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana
Islands, Guam, American Samoa, and the U.S. Virgin Islands.
    U.S.-directed production volume means the amount of portable
gasoline containers, subject to the requirements of this subpart,
produced by a manufacturer for which the manufacturer has a reasonable
assurance that sale was or will be made to ultimate purchasers in the
United States.
    Useful life means the period during which a portable gasoline
container is required to comply with all applicable emission standards.
See Sec.  59.611.
    Void means to invalidate a certificate or an exemption ab initio
(i.e. retroactively). Portable gasoline containers introduced into U.S.
commerce under the voided certificate or exemption is a violation of
this subpart, whether or not they were introduced before the
certificate or exemption was voided.
    We (us, our) means the Administrator of the Environmental
Protection Agency and any authorized representatives.

Sec.  59.685  What symbols, acronyms, and abbreviations does this
subpart use?

    The following symbols, acronyms, and abbreviations apply to this
subpart:

    CFR Code of Federal Regulations.
    EPA Environmental Protection Agency.
    HC hydrocarbon.
    NIST National Institute of Standards and Technology.
    THC total hydrocarbon.
    U.S.C. United States Code.

Sec.  59.695  What provisions apply to confidential information?

    (a) Clearly show what you consider confidential by marking,
circling, bracketing, stamping, or some other method.
    (b) We will store your confidential information as described in 40
CFR part 2. Also, we will disclose it only as specified in 40 CFR part
2. This applies both to any information you send us and to any
information we collect from inspections, audits, or other site visits.
    (c) If you send us a second copy without the confidential
information, we will assume it contains nothing confidential whenever
we need to release information from it.
    (d) If you send us information without claiming it is confidential,
we may make it available to the public without further notice to you,
as described in 40 CFR 2.204.

Sec.  59.697  State actions.

    The provisions in this subpart do not preclude any State or any
political subdivision of a State from:
    (a) Adopting and enforcing any emission standard or limitation
applicable to anyone subject to the provisions of this part; or
    (b) Requiring the regulated entity to obtain permits, licenses, or
approvals prior to initiating construction, modification, or operation
of a facility for manufacturing a consumer product.

Sec.  59.698  May EPA enter my facilities for inspections?

    (a) We may inspect your portable gasoline containers, testing,
manufacturing processes, storage facilities (including port facilities
for imported containers or other relevant facilities), or records, as
authorized by the Act, to enforce the provisions of this subpart.
Inspectors will have authorizing credentials and will limit inspections
to reasonable times--usually, normal operating hours.
    (b) If we come to inspect, we may or may not have a warrant or
court order.
    (1) If we do not have a warrant or court order, you may deny us
entry.
    (2) If we have a warrant or court order, you must allow us to enter
the facility and carry out the activities it describes.
    (c) We may seek a warrant or court order authorizing an inspection
described in this section, whether or not we first tried to get your
permission to inspect.

    (d) We may select any facility to do any of the following:
    (1) Inspect and monitor any aspect of portable gasoline container
manufacturing, assembly, storage, or other procedures, and any
facilities where you do them.
    (2) Inspect and monitor any aspect of test procedures or test-
related activities, including test container selection, preparation,
durability cycles, and maintenance and verification of your test
equipment's calibration.
    (3) Inspect and copy records or documents related to assembling,
storing, selecting, and testing a container.
    (4) Inspect and photograph any part or aspect of containers or
components use for assembly.
    (e) You must give us reasonable help without charge during an
inspection authorized by the Act. For example, you may need to help us
arrange an inspection with the facility's managers, including clerical
support, copying, and translation. You may also need to show us how the
facility operates and answer other questions. If we ask in writing to
see a particular employee at the inspection, you must ensure that he or
she is present (legal counsel may accompany the employee).
    (f) If you have facilities in other countries, we expect you to
locate them in places where local law does not keep us from inspecting
as described in this section. We will not try to inspect if we learn
that local law prohibits it, but we may suspend your certificate if we
are not allowed to inspect.

Sec.  59.699  How do I request a hearing?

    (a) You may request a hearing under certain circumstances, as
described elsewhere in this subpart. To do this, you must file a
written request with the Designated Compliance Officer, including a
description of your objection and any supporting data, within 30 days
after we make a decision.
    (b) For a hearing you request under the provisions of this subpart,
we will approve your request if we find that your request raises a
substantial factual issue.
    (c) If we agree to hold a hearing, we will use the procedures
specified in 40 CFR part 1068, subpart G.

PART 80--REGULATION OF FUELS AND FUEL ADDITIVES

    3. The authority citation for part 80 is revised to read as
follows:

    Authority: 42 U.S.C. 7414, 7521(1), 7545 and 7601(a).

Subpart D--[Amended]

    4. Section 80.41 is amended by redesignating paragraph (e) as
paragraph (e)(1), redesignating paragraph (f) as paragraph (f)(1), and
adding paragraphs (e)(2) and (f)(2) to read as follows:

Sec.  80.41  Standards and requirements for compliance.

* * * * *
    (e) * * *
    (2) Beginning January 1, 2011, or January 1, 2015 for approved
small refiners under Sec.  80.1340, the toxic air pollutants emissions
performance reduction and benzene content specified in paragraph (e)(1)
of this section shall apply only to reformulated gasoline that is not
subject to the benzene standard of Sec.  80.1230, pursuant to the
provisions of Sec.  80.1235. Beginning January 1, 2007, or January 1,
2008 for approved small refiners under Sec.  80.235, the NOX
emissions performance reduction specified in paragraph (e)(1) of this
section shall no longer apply.
    (f) * * *
    (2) Beginning January 1, 2011, or January 1, 2015 for approved
small refiners under Sec.  80.1340, the toxic air pollutants emissions
performance reduction and benzene content specified in paragraph (f)(1)
of this section shall apply only to reformulated gasoline that is not
subject to the benzene standard of Sec.  80.1230, pursuant to the
provisions of Sec.  80.1235. Beginning January 1, 2007, or January 1,
2008 for approved small refiners under Sec.  80.235, the NOX
emissions performance reduction specified in paragraph (f)(1) of this
section shall no longer apply.
* * * * *

Subpart E--[Amended]

    5. Section 80.101 is amended by revising paragraph (c)(2) to read
as follows:

Sec.  80.101  Standards applicable to refiners and importers.

* * * * *
    (c) * * *
    (2) Beginning January 1, 1998, each refiner and importer shall be
subject to the Complex Model standards for each averaging period.
However beginning January 1, 2011, or January 1, 2015 for approved
small refiners under Sec.  80.1340, such annual average exhaust toxics
standard shall apply only to conventional gasoline that is not subject
to the benzene standard of Sec.  80.1230, pursuant to the provisions of
Sec.  80.1235. Beginning January 1, 2007, or January 1, 2008 for
approved small refiners under Sec.  80.235, the annual average
NOX emissions standard section shall no longer apply.
* * * * *

Subpart F--[Amended]

    6. Section 80.128 is amended by revising paragraph (a) to read as
follows:

Sec.  80.128  Agreed upon procedures for refiners and importers.

* * * * *
    (a) Read the refiner's or importer's reports filed with EPA for the
previous year as required by Sec. Sec.  80.75, 80.83(g), 80.105, 80.990
and 80.1354.
* * * * *

Subpart J--[Amended]

    7. Section 80.815 is amended by redesignating paragraph (d)(1) as
paragraph (d)(1)(i) and adding paragraph (d)(1)(ii) to read as follows:

Sec.  80.815  What are the gasoline toxics performance requirements for
refiners and importers?

* * * * *
    (d) * * *
    (1) * * *
    (ii) Beginning January 1, 2011, or January 1, 2015 for approved
small refiners under Sec.  80.1340, the gasoline toxics performance
requirements of this subpart shall apply only to gasoline that is not
subject to the benzene standard of Sec.  80.1230, pursuant to the
provisions of Sec.  80.1235.
* * * * *
    8. Section 80.1035 is amended by adding paragraph (h) to read as
follows:

Sec.  80.1035  What are the attest engagement requirements for gasoline
toxics compliance applicable to refiners and importers?

* * * * *
    (h) Beginning January 1, 2011, or January 1, 2015 for approved
small refiners per Sec.  80.1340, the requirements of this section
shall apply only to gasoline that is not subject to the benzene
standard of Sec.  80.1230, pursuant to the provisions of Sec.  80.1235.
    9. Subpart L is added to read as follows:
Subpart L--Gasoline Benzene
Sec.
80.1200--80.1219 [Reserved]

General Information

80.1220 What are the implementation dates for the gasoline benzene
program?
80.1225 Who must register with EPA under the gasoline benzene
program?

Gasoline Benzene Requirements

80.1230 What are the gasoline benzene requirements for refiners and
importers?
80.1235 What gasoline is subject to the benzene requirements of this
subpart?

80.1236 What requirements apply to California gasoline?
80.1238 How is a refinery's or importer's annual average benzene
concentration determined?
80.1240 How is a refinery's or importer's compliance with the
gasoline benzene requirements of this subpart determined?

Averaging, Banking and Trading (ABT) Program

80.1270 Who may generate benzene credits under the ABT program?
80.1275 How are early benzene credits generated?
80.1280 How are refinery benzene baselines calculated?
80.1285 How does a refiner apply for a benzene baseline?
80.1290 How are benzene credits generated in 2011 and beyond?
80.1295 How are gasoline benzene credits used?

Hardship Provisions

80.1335 Can a refiner seek temporary relief from the requirements of
this subpart?
80.1336 What if a refiner or importer cannot produce gasoline
conforming to the requirements of this subpart?

Small Refiner Provisions

80.1338 What is the definition of a small refiner for the purpose of
the gasoline benzene requirements of this subpart?
80.1339 Who is not eligible for the provisions for small refiners?
80.1340 How does a refiner obtain approval as a small refiner?
80.1342 What compliance options are available to small refiners
under this subpart?
80.1344 What provisions are available to a large refiner that
acquires one or more of a small refiner's refineries?

Sampling, Testing and Retention Requirements

80.1347 What are the sampling and testing requirements for refiners
and importers?
80.1348 What gasoline sample retention requirements apply to
refiners and importers?

Recordkeeping and Reporting Requirements

80.1350 What records must be kept?
80.1352 What are the pre-compliance reporting requirements for the
gasoline benzene program?
80.1354 What are the reporting requirements for the gasoline benzene
program?

Attest Engagements

80.1375 What are the attest engagement requirements for gasoline
benzene compliance?

Violations and Penalties

80.1400 What acts are prohibited under the gasoline benzene program?
80.1405 What evidence may be used to determine compliance with the
prohibitions and requirements of this subpart and liability for
violations of this subpart?
80.1410 Who is liable for violations under the gasoline benzene
program?
80.1415 What penalties apply under the gasoline benzene program?

Foreign Refiners

80.1420 What are the additional requirements under this subpart for
gasoline produced at foreign refineries?

Subpart L--Gasoline Benzene

Sec. Sec.  80.1200-80.1219  [Reserved]

General Information

Sec.  80.1220  What are the implementation dates for the gasoline
benzene program?

    (a) Benzene standard. (1) Effective with the annual averaging
period beginning January 1, 2011, gasoline produced by a refiner at
each refinery, or imported into an import facility, must meet the
benzene standard specified in Sec.  80.1230, except as otherwise
specifically provided for in this subpart.
    (2) Approved small refiners under Sec.  80.1340 may defer meeting
the benzene standard specified in Sec.  80.1230 until January 1, 2015
as described in Sec.  80.1342.
    (b) Early credit generation. (1) Beginning June 1, 2007, each
refinery which has an approved benzene baseline per Sec.  80.1285 may
generate early benzene credits in accordance with the provisions of
Sec.  80.1275.
    (2) Early benzene credits may be generated through the end of the
averaging period ending December 31, 2010.
    (3) Early benzene credits may be generated through the end of the
averaging period ending December 31, 2014 for approved small refiners
under Sec.  80.1340.
    (c) Standard credit generation. (1) Effective with the annual
averaging period beginning January 1, 2011, a refiner for any of its
refineries or an importer for its imported gasoline, may generate
benzene credits in accordance with the provisions of Sec.  80.1290.
    (2) Effective with the annual averaging period beginning January 1,
2015, an approved small refiner under Sec.  80.1340, for any of its
refineries, may generate benzene credits in accordance with the
provisions of Sec.  80.1290.

Sec.  80.1225  Who must register with EPA under the gasoline benzene
program?

    (a) Refiners and importers that are registered by EPA under Sec.
80.76, Sec.  80.103, Sec.  80.190, or Sec.  80.810 are deemed to be
registered for purposes of this subpart.
    (b) Refiners and importers subject to the requirements in Sec.
80.1230 that are not registered by EPA under Sec.  80.76, Sec.  80.103,
Sec.  80.190 or Sec.  80.810 shall provide to EPA the information
required in Sec.  80.76 by September 30, 2010, or not later than three
months in advance of the first date that such person produces or
imports gasoline, whichever is later.
    (c) Refiners that plan to generate early credits under Sec.
80.1275 and that are not registered by EPA under Sec.  80.76, Sec.
80.103, Sec.  80.190, or Sec.  80.810 must provide to EPA the
information required in Sec.  80.76 not later than 60 days prior to the
end of the first year of credit generation.

Gasoline Benzene Requirements

Sec.  80.1230  What are the gasoline benzene requirements for refiners
and importers?

    (a)(1) Except as specified in paragraph (b) of this section, a
refinery's or importer's average gasoline benzene concentration in any
averaging period shall not exceed 0.62 percent by volume using
conventional rounding methodology.
    (2) Compliance with the standard specified in paragraph (a)(1) of
this section, or creation of a deficit in accordance with paragraph (b)
of this section, is determined in accordance with Sec.  80.1240.
    (3) The averaging period for achieving compliance with the
requirement of paragraph (a)(1) of this section is January 1 through
December 31 of each calendar year, beginning January 1, 2011, or
beginning January 1, 2015 for approved small refiners under Sec.
80.1340.
    (4) Refinery grouping per Sec.  80.101(h) does not apply to
compliance with the gasoline benzene requirement specified in this
paragraph (a).
    (5) Gasoline produced at foreign refineries that is subject to the
gasoline benzene requirements per Sec.  80.1235 shall be included in
the importer's compliance determination, except as provided in Sec.
80.1420.
    (b) Deficit carry-forward. (1) A refinery or importer creates a
benzene deficit for a given averaging period when its compliance
benzene value, per Sec.  80.1240, is greater than the benzene standard
specified in paragraph (a) of this section.
    (2) A refinery or importer may carry the benzene deficit forward to
the calendar year following the year the benzene deficit is created but
only if no deficit had been previously carried forward a deficit to the
year the deficit is created. If a refinery or importer carries forward,
the following provisions apply in the second year:
    (i) The refinery or importer must achieve compliance with the
benzene standard specified in paragraph (a) of this section.
    (ii) The refinery or importer must achieve further reductions in
its

gasoline benzene concentrations sufficient to offset the benzene
deficit of the previous year.
    (iii) Benzene credits may be used, per Sec.  80.1295, to meet the
requirements of paragraphs (b)(2)(i) and (ii) of this section.
    (3) In the case of an approved hardship under Sec.  80.1335 or
Sec.  80.1336, EPA may allow a briefly extended period of deficit
carry-forward.
    (c) Oxygenate blenders, butane blenders and refiners that produce
gasoline from transmix. (1)(i) Refiners and oxygenate blenders that
only blend butane or oxygenate into gasoline downstream of the refinery
that produced the gasoline or the import facility where the gasoline
was imported, are not subject to the requirements of Sec.  80.1230 for
such gasoline.
    (ii) Refiners that produce gasoline by separating gasoline from
transmix are not subject to the requirements of Sec.  80.1230 for this
gasoline.
    (2) Any refiner under paragraph (c)(1) of this section that adds
any blendstock or feedstock other than, or in addition to, oxygenate
and/or butane into gasoline downstream of the refinery that produced
the gasoline or the import facility where the gasoline was imported, or
into transmix, or into gasoline produced from transmix, is subject to
the requirements of Sec.  80.1230 for this blendstock or feedstock.

Sec.  80.1235  What gasoline is subject to the benzene requirements of
this subpart?

    For the purposes of determining compliance with the requirements of
Sec.  80.1230, all reformulated gasoline, RBOB, and conventional
gasoline or gasoline blending stock per Sec.  80.101(d) are
collectively ``gasoline.'' Unless otherwise specified, all of a
refinery's or importer's gasoline is subject to the standards and
requirements of Sec.  80.1230, 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 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, except for motor
vehicles used only in sanctioned racing events.
    (b) California gasoline, as defined in Sec.  80.1236.
    (c) Gasoline that is exported for sale outside the U.S.
    (d) Gasoline used for research, development or testing purposes if
it is exempted for these purposes under the reformulated gasoline and
anti-dumping programs, as applicable.
    (e) Gasoline produced pursuant to Sec.  80.1230(c)(1).

Sec.  80.1236  What requirements apply to California gasoline?

    (a) Definition. For purposes of this subpart, California gasoline
means any gasoline designated by the refiner or importer as for use
only in California and that is actually used in California.
    (b) California gasoline exemption. California gasoline that
complies with all the requirements of this section is exempt from the
requirements in Sec.  80.1230.
    (c) Requirements for California gasoline. The following
requirements apply to California gasoline:
    (1) Each batch of California gasoline must be designated as such by
its refiner or importer.
    (2) Designated California gasoline must be kept segregated from
gasoline that is not California gasoline at all points in the
distribution system.
    (3) Designated California gasoline must ultimately be used in the
State of California and not used elsewhere in the United States.
    (4) In the case of California gasoline produced outside the State
of California, the transferors and transferees must meet the product
transfer document requirements under Sec.  80.81(g).
    (5) Gasoline that is ultimately used in any part of the United
States outside of the State of California must comply with the
requirements specified in Sec.  80.1230, regardless of any designation
as California gasoline.

Sec.  80.1238  How is a refinery's or importer's annual average benzene
concentration determined?

    (a) The annual average benzene concentration of gasoline produced
at a refinery or imported by an importer for the applicable averaging
period is calculated according to the following equation:
[GRAPHIC] [TIFF OMITTED] TP29MR06.008

Where:

Bavg = Annual average benzene concentration (volume percent
benzene).
i = Individual batch of gasoline produced at the refinery or imported.
n = Total number of batches of gasoline produced at the refinery or
imported during the applicable annual averaging period.
Vi = Volume of gasoline in batch i (gallons).
Bi = Benzene concentration of batch i (volume percent
benzene), per Sec.  80.46(e).

    (b) All input batch benzene concentration values used in paragraph
(a) of this section shall be expressed to two decimal places.
    (c) Annual average benzene concentration values calculated under
paragraph (a) of this section shall be expressed to two decimal places
using conventional rounding methodology.
    (d) A refiner or importer may include the volume of oxygenate added
downstream from the refinery or import facility in the calculation
specified in paragraph (a) of this section, 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)
and (g)(3).
    (2) For oxygenate added to RBOB, the refiner or importer must
comply with the requirements of Sec.  80.69(a).
    (e) Refiners and importers must exclude from the calculation
specified in paragraph (a) of this section all of the following:
    (1) Gasoline that was not produced at the refinery or imported by
the importer.
    (2) Except as provided in paragraph (c) of this section, any
blendstocks or unfinished gasoline transferred to others.
    (3) Gasoline that has been included in the compliance calculations
for another refinery or importer.
    (4) Gasoline exempted from the standards under Sec.  80.1235.

Sec.  80.1240  How is a refinery's or importer's compliance with the
gasoline benzene requirements of this subpart determined?

    (a)(1) The compliance benzene value for a refinery or importer is:

[GRAPHIC] [TIFF OMITTED] TP29MR06.009

Where:

CBVy = Compliance benzene value (gallons benzene) for year
y.
Vy = Gasoline volume produced or imported in year y
(gallons).
Bavg = Annual average benzene concentration (volume percent
benzene), per Sec.  80.1238.
Dy-1 = Benzene deficit from the previous reporting period,
per Sec.  80.1230(b) (gallons benzene).
BC = Banked benzene credits used to show compliance (gallons benzene).
RC = Benzene credits received by the refinery or importer, per Sec.
80.1295(c), used to show compliance (gallons benzene).

    (2) If CBVy <= Vy x (0.62)/100, then
compliance is achieved for calendar year y.
    (b)(1) A deficit is created when CBVy > Vy x
(0.62)/100.
    (2) The deficit value to be included in the following year's
compliance calculation per paragraph (a) of this section, is calculated
as follows:
[GRAPHIC] [TIFF OMITTED] TP29MR06.010

Averaging, Banking and Trading (ABT) Program

Sec.  80.1270  Who may generate benzene credits under the ABT program?

    (a) Early credits. (1) Early credits may be generated under Sec.
80.1275 by a refiner for a refinery with an approved benzene baseline
under Sec.  80.1285.
    (2) Early credits may be generated under Sec.  80.1275 only by
refiners that produce gasoline by processing crude oil through refinery
processing units.
    (3)(i) A refinery that was shut down during the entire 2004-2005
benzene baseline period is not eligible to generate early credits under
Sec.  80.1275.
    (ii) A refinery not in full production, excluding normal refinery
downtime, or not showing consistent or regular gasoline production
activity during 2004-2005 may be eligible to generate early benzene
credits under Sec.  80.1275 upon petition to and approval by EPA, under
Sec.  80.1285.
    (b) Standard Credits. (1) Standard credits may be generated under
Sec.  80.1290 by refineries and importers for gasoline produced or
imported for use in the U.S., excluding gasoline exempt from the
benzene standard under the provisions of Sec.  80.1235.
    (2) Oxygenate blenders, butane blenders, and transmix producers are
not eligible to generate standard credits under Sec.  80.1290.

Sec.  80.1275  How are early benzene credits generated?

    (a) Early benzene credits may be generated only if a refinery's
annual average gasoline benzene concentration is at least 10% lower
than the refinery's approved baseline benzene concentration per Sec.
80.1280.
    (b) [Reserved]
    (c) The early credit annual averaging periods are as follows:
    (1) For 2007, the seven-month period from June 1, 2007, through
December 31, 2007, inclusive.
    (2) For 2008, 2009 and 2010, the 12-month calendar year.
    (3) For 2011, 2012, 2013, and 2014, which apply only to approved
small refiners per Sec.  80.1340, the 12-month calendar year.
    (d) The number of early benzene credits shall be calculated
annually for each applicable averaging period as follows:
    (1) Proceed to paragraph (d)(2) of this section under the following
condition. Bavg <= BBase x 0.90

Where:

Bavg = Annual average benzene concentration (volume percent
benzene) of gasoline produced at the refinery, per Sec.  80.1238.
BBase = Baseline benzene concentration (volume percent
benzene) of the refinery, per Sec.  80.1280(b).

    (2) Calculate the number of early credits generated by the refinery
for the averaging period as follows:
[GRAPHIC] [TIFF OMITTED] TP29MR06.011

Where:

ECy = Early credits generated in year y (gallons benzene).
Bavg = Annual average benzene concentration (volume percent
benzene) of gasoline produced at the refinery, per Sec.  80.1238 that
satisfies the condition of paragraph (d)(1) of this section.
Ve = Total volume of gasoline (gallons) produced during the
annual averaging period at the refinery.

    (e) All input benzene concentration values used in paragraph (d) of
this section shall be expressed to two decimal places.
    (f) Early benzene credits calculated under paragraph (d) of this
section shall be expressed to the nearest gallon using conventional
rounding methodology.
    (g)(1) Early benzene credits shall be calculated separately for
each refinery.
    (2) Refiners shall not move gasoline or gasoline blending stocks
from one refinery to another for the purpose of generating early
credits.
    (h) An importer may not generate early credits.
    (i) A foreign refiner with an approved baseline may generate early
credits subject to the provisions of Sec.  80.1420.

Sec.  80.1280  How are refinery benzene baselines calculated?

    (a) A refinery's benzene baseline is based on the refinery's 2004-
2005 average gasoline benzene concentration, calculated according to
the following equation:
[GRAPHIC] [TIFF OMITTED] TP29MR06.012

Where:

BBase = Benzene baseline concentration (volume percent
benzene).
i = Individual batch of gasoline produced at the refinery from January
1, 2004 through December 31, 2005.
n = Total number of batches of gasoline produced at the refinery from
January 1, 2004 through December 31, 2005 (or the total number of
batches of gasoline pursuant to Sec.  80.1285(d)).
Vi = Volume of gasoline in batch i (gallons).
Bi = Benzene content of batch i (volume percent benzene).

    (b) All input batch benzene concentration values used in paragraph
(a) of this section shall be expressed to two decimal places.
    (c) Baseline benzene concentration values calculated under
paragraph (a) of this section shall be expressed to two decimal places
using conventional rounding methodology.
    (d) Any refiner that, under Sec.  80.69 or Sec.  80.101(d)(4),
included oxygenate blended downstream in compliance calculations for
RFG or conventional gasoline for calendar years 2004 or 2005 for a
refinery must include the volume and benzene concentration of this
oxygenate in the baseline calculations for gasoline benzene content for
that refinery under paragraph (a) of this section.

Sec.  80.1285  How does a refiner apply for a benzene baseline?

    (a) A refiner must submit an application to EPA which includes the
information specified in paragraph (c) of this section at least 60 days
before the refinery plans to begin generating early credits.

    (b) The benzene baseline application shall be sent to: U.S. EPA,
Attn: Early Gasoline Benzene Credits (6406J), 1200 Pennsylvania Ave.,
NW., Washington, DC 20460. For commercial delivery: U.S. EPA Attn:
Early Gasoline Benzene Credits (6406J), 501 3rd Street, NW.,
Washington, DC 20001.
    (c) A benzene baseline application must be submitted for each
refinery that plans to generate early credits under Sec.  80.1275 and
must include the following information:
    (1) A listing of the names and addresses of all refineries owned by
the company.
    (2) The benzene baseline for gasoline produced in 2004-2005 at the
refinery, calculated in accordance with Sec.  80.1280(b).
    (3) Copies of the annual reports required under Sec.  80.75 for RFG
and Sec.  80.105 for conventional gasoline.
    (4) A letter signed by the president, chief operating officer, or
chief executive officer, of the company, or his/her designee, stating
that the information contained in the benzene 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) A refiner, for a refinery that qualifies for generating early
credits under Sec.  80.1270(a)(3)(ii) may submit to EPA a benzene
baseline application per the requirements of this section. The refiner
must also submit information regarding the nature and cause of the
inconsistent production, how it affects the baseline and benzene
concentration, and whether an alternative calculation to the
calculation specified in Sec.  80.1280 produces a more representative
benzene baseline value. EPA, upon consideration of the submitted
information, may approve a benzene baseline for such a refinery.
    (e) Within 60 days of receipt of an application under this section,
except for applications submitted in accordance with paragraph (d) of
this section, EPA will notify the refiner of approval of the refinery's
baseline or any deficiencies in the application.
    (f) If at any time the baseline submitted in accordance with the
requirements of this section is determined to be incorrect, EPA will
notify the refiner of the corrected baseline.

Sec.  80.1290  How are benzene credits generated in 2011 and beyond?

    (a) Gasoline benzene standard credits may be generated by the
following parties during any applicable averaging period specified in
paragraph (b) of this section:
    (1) A refiner, at any of its refineries that produce gasoline for
use in the U.S. (excluding gasoline under Sec.  80.1235 that is exempt
from the requirements of this subpart). Credits are generated
separately by each refinery;
    (2) Importers, for all of their imported gasoline (excluding
gasoline under Sec.  80.1235 that is exempt from the requirements of
this subpart);
    (b) The standard credit averaging periods are the calendar years
beginning with 2011, or beginning with 2015 for approved small
refiners.
    (c) [Reserved]
    (d)(1) The number of standard credits generated by a refinery or
importer shall be calculated annually according to the following
equation:
[GRAPHIC] [TIFF OMITTED] TP29MR06.013

Where:

SCy = Standard credits generated in year y (gallons
benzene).
Bavg = Annual average benzene concentration for year y
(volume percent benzene), per Sec.  80.1238.
Vy = Total volume of gasoline produced or imported in year y
(gallons).

    (2) No credits shall be generated unless the value SCy is positive.
    (e) All input benzene concentration values used in paragraph (d) of
this section shall be expressed to two decimal places.
    (f) Standard benzene credits calculated under paragraph (d) of this
section shall be expressed to the nearest gallon using conventional
rounding methodology.
    (g) Foreign refiners may not generate credits under this section.

Sec.  80.1295  How are gasoline benzene credits used?

    (a) Credit use. (1) Gasoline benzene credits generated under
Sec. Sec.  80.1275 and 80.1290 may be used to comply with the gasoline
benzene content requirement of Sec.  80.1230 provided that:
    (i) The gasoline benzene credits were generated and reported
according to the requirements of this subpart; and
    (ii) The conditions of this section Sec.  80.1295 are met.
    (2) Gasoline benzene credits generated under Sec. Sec.  80.1275 and
80.1290 may be used by a refiner or importer to comply with the
gasoline benzene content standard of Sec.  80.1230, may be banked by a
refiner or importer for future use or transfer, may be transferred to
another refinery or importer within a company (intracompany), or may be
transferred to another refinery or importer outside of the company.
    (b) Credit banking. Gasoline benzene credits generated by a
refinery or importer may be banked for use in a later compliance
period, or may be transferred to another refiner, refinery, or importer
for use as provided in paragraph (c) of this section.
    (c) Credit transfers. (1) Gasoline benzene credits obtained from
another refinery or importer may be used to comply with the gasoline
benzene content requirement of Sec.  80.1230 provided the following
conditions are met:
    (i) The credits are generated and reported according to the
requirements of this subpart, and the transferred credit has not
expired, per paragraph (d) of this section.
    (ii) Any credit transfer takes place no later than the last day of
February following the calendar year averaging period when the credits
are used.
    (iii) The credit has not been transferred more than twice. The
first transfer by the refinery or importer that generated the credit
may only be made to a refiner or importer that intends to use the
credit; if the transferee cannot use the credit, it may make the
second, and final, transfer only to a refinery or importer that intends
to use or terminate the credit. In no case may a credit be transferred
more than twice before being used or terminated.
    (iv) The credit transferor has applied any gasoline benzene credits
necessary to meet its own annual compliance requirements (and any
deficit carry-forward, if applicable) before transferring any gasoline
benzene credits to any other refiner or importer.
    (v) The credit transferor would not create a deficit as a result of
a credit transfer.
    (vi) The transferor supplies to the transferee records indicating
the year the gasoline benzene credits were generated, the identity of
the refiner (and refinery) or importer that generated the gasoline
benzene credits and the identity of the transferring entity if not the
same entity that generated the gasoline benzene credits.
    (2) In the case of gasoline benzene credits that have been
calculated or created improperly, or have otherwise been determined to
be invalid, the following provisions apply:
    (i) Invalid gasoline benzene credits cannot be used to achieve
compliance with the gasoline benzene content requirement of Sec.
80.1230 regardless of the transferee's good faith belief that the
gasoline benzene credits were valid.
    (ii) The refiner or importer that used the gasoline benzene credits
and any

transferor of the gasoline benzene credits must adjust their credit
records, reports, and compliance calculations as necessary to reflect
the proper gasoline benzene credits.
    (iii) Any properly created gasoline benzene credits existing in the
transferor's credit balance following the corrections and adjustments
specified in paragraph (c)(2)(ii) of this section and after the
transferor applies gasoline benzene credits as needed to meet its own
compliance requirements at the end of the compliance period, must first
be applied to correct the invalid transfers to the transferee, before
the transferor uses, trades or banks the gasoline benzene credits.
    (d) Credit life. (1) Early credits, per Sec.  80.1275, may be used
for compliance purposes under Sec.  80.1240 for any calendar year
averaging period prior to the 2014 averaging period.
    (2) Standard credits, per Sec.  80.1290, shall have a credit life
of 5 calendar year averaging periods after the year in which they were
generated. Example: Standard credits generated during 2014 may be used
to achieve compliance under Sec.  80.1240 for any calendar year
averaging period prior to the 2020 averaging period.
    (3) Notwithstanding paragraphs (d)(1) and (d)(2) of this section,
credits traded to or used by approved small refiners per Sec.  80.1340,
have an additional credit life of two calendar year averaging periods.
    (e) General limitations on credit use. A refiner or importer
possessing gasoline benzene credits must use all gasoline benzene
credits in its possession prior to applying the credit deficit
provisions of Sec.  80.1230(b).

Hardship Provisions

Sec.  80.1335  Can a refiner seek temporary relief from the
requirements of this subpart?

    (a) EPA may permit a refinery to have an extended period of deficit
carry-forward, for the shortest period practicable, per Sec.
80.1230(b), if the refiner demonstrates that:
    (1) Unusual circumstances exist that impose extreme hardship and
significantly affect the ability to comply by the applicable date; and
    (2) It has made best efforts to comply with the requirements of
this subpart, including making all possible efforts to obtain
sufficient credits to meet the standard.
    (b) Applications must be submitted to EPA by September 1, 2009.
    (1) Approval of a hardship under this section shall be in the form
an extended period of deficit carry-forward, per Sec.  80.1230(b), for
such period of time as EPA determines is appropriate, but shall not
extend beyond December 31, 2014.
    (2) EPA reserves the right to deny applications for appropriate
reasons, including unacceptable environmental impact.
    (c)(1) Applications must include a plan demonstrating how the
refiner will comply with the requirements of this subpart as
expeditiously as possible. The plan shall include a showing that
contracts are or will be in place for engineering and construction of
benzene reduction technology, a plan for applying for and obtaining any
permits necessary for construction, a description of plans to obtain
necessary capital, and a detailed estimate of when the requirements of
this subpart will be met.
    (2) Applications must include a detailed description of the
refinery configuration and operations including, at minimum, the
following information:
    (i) The refinery's total reformer unit throughput capacity;
    (ii) The refinery's total crude capacity;
    (iii) Total crude capacity of any other refineries owned by the
same entity;
    (iv) Total volume of gasoline production at the refinery;
    (v) Total volume of other refinery products; and
    (vi) Geographic location(s) where the refinery's gasoline will be
sold.
    (3) Applications must include, at a minimum, the following
information:
    (i) Detailed descriptions of efforts to obtain capital for refinery
investments;
    (ii) Detailed descriptions of efforts to obtain credits;
    (iii) Bond rating of entity that owns the refinery; and
    (iv) Estimated capital investment needed to comply with the
requirements of this subpart
    (4) Applicants must also provide any other relevant information
requested by EPA.
    (d) EPA may impose any reasonable conditions on waivers granted
under this section, including the condition that if more credits are
available than was anticipated at the time of the hardship approval,
the extended period of deficit carry-forward may be shortened.

Sec.  80.1336  What if a refiner or importer cannot produce gasoline
conforming to the requirements of this subpart?

    In extreme and unusual circumstances (e.g., natural disaster or Act
of God) which are clearly outside the control of the refiner or
importer and which could not have been avoided by the exercise of
prudence, diligence, and due care, EPA may permit a refinery or
importer to extend the deadline for meeting the deficit carry-forward
requirements under Sec.  80.1230(b) for a brief period (e.g., where
appropriate, EPA may allow one or more additional weeks after the last
day of February to purchase credits), provided the refinery or importer
meets all the criteria, requirements and conditions contained in Sec.
80.73(a) through (e).

Small Refiner Provisions

Sec.  80.1338  What is the definition of a small refiner for the
purpose of the gasoline benzene requirements of this subpart?

    (a) A small refiner is defined as any person, as defined by 42
U.S.C. 7602(e), that--
    (1) Produced gasoline at a refinery by processing crude oil through
refinery processing units from January 1, 2005, through December 31,
2005; and
    (2) Employed an average of no more than 1,500 people, based on the
average number of employees for all pay periods from January 1, 2005
through December 31, 2005; and
    (3) Had a corporate average crude oil capacity less than or equal
to 155,000 barrels per calendar day (bpcd) for 2005; or
    (4) Has been approved by EPA as a small refiner under Sec.
80.1340.
    (b) For the purpose of determining the number of employees and the
crude oil capacity under paragraph (a) of this section, the following
determinations shall be observed:
    (1) The refiner shall include the employees and crude oil capacity
of any subsidiary companies, any parent company and subsidiaries of the
parent company in which the parent has a controlling interest, and any
joint venture partners.
    (2) For any refiner owned by a governmental entity, the number of
employees and total crude oil capacity as specified in paragraph (a) of
this section shall include all employees and crude oil production of
the government to which the governmental entity is a part.
    (3) Any refiner owned and controlled by an Alaska Regional or
Village Corporation organized pursuant to the Alaska Native Claims
Settlement Act (43 U.S.C. 1601) is not considered an affiliate of such
entity, or with other concerns owned by such entity, solely because of
their common ownership.
    (c) Notwithstanding the provisions of paragraph (a) of this
section, a refiner that reactivates a refinery, which it previously
operated, and that was shut down or non-operational for the entire
period between January 1, 2005, and December 31, 2005, may apply for
small refiner status in accordance with the provisions of Sec.
80.1340.

Sec.  80.1339  Who is not eligible for the provisions for small
refiners?

    (a) The following are not eligible for the hardship provisions for
small refiners:
    (1) Refiners with refineries built after December 31, 2005;
    (2) Refiners that exceed the employee or crude oil capacity
criteria under Sec.  80.1338 but that meet these criteria after
December 31, 2005, regardless of whether the reduction in employees or
crude capacity is due to operational changes at the refinery or a
company sale or reorganization.
    (3) Importers.
    (4) Refiners that produce gasoline other than by processing crude
oil through refinery processing units.
    (b)(1)(i) Refiners that qualify as small under Sec.  80.1338 and
subsequently cease production of gasoline from processing crude oil
through refinery processing units, employ more than 1,500 people or
exceed the 155,000 bpcd crude oil capacity limit after December 31,
2005, as a result of merger with or acquisition of or by another