[Federal Register: April 3, 2006 (Volume 71, Number 63)]
[Rules and Regulations]
[Page 16492-16500]
[DOCID:fr03ap06-9]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[EPA-OAR-2005-0048; FRL-8052-1]
RIN 2060-AM42

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

DATES: This direct final rule is effective June 2, 2006, unless EPA
receives adverse comments or a request for public hearing by May 3,
2006. If the Agency receives adverse comment or a request for public
hearing, we will withdraw this direct final rule by publishing a timely
withdrawal notice in the Federal Register. The incorporation by
reference of certain publications in this rule is approved by the
Director of the Office of the Federal Register as of June 2, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2005-0048, by one of the following methods:

     http://www.regulations.gov: Follow the on-line

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

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

The http://www.regulations.gov Web site is an ``anonymous access'' system,

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

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

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

DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC.
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding holidays. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding holidays.
The telephone number for the Public Reading Room is<PHONE_NUMBER>, and
the telephone number for the telephone number for the Air Docket is
(202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Joe Sopata, Chemist, Transportation
and Regional Programs Division, Office of Transportation and Air
Quality (6406J), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460; telephone number:<PHONE_NUMBER>; fax
number:<PHONE_NUMBER>; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: EPA is publishing this rule without prior
proposal because we view this as a noncontroversial amendment and
anticipate no adverse comment. However, in the ``Proposed Rules''
section of today's Federal Register publication, we are publishing a
separate document that will serve as the proposal if adverse comments
are filed. This rule will be effective on June 2, 2006 without further
notice unless we receive adverse comment by May 3, 2006. If EPA
receives adverse comment, we will publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect. We will address all public comments in a subsequent final rule
based on the proposed rule. We will not institute a second comment
period on this action. Any parties interested in commenting must do so
at this time.
    The contents of today's preamble are listed in the following
outline.

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

I. General Information

A. Does This Action Apply to Me?

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

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

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

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

II. Rule Changes

A. Updating ASTM Test Methods to Their Most Recent Version

    Refiners, importers and oxygenate blenders producing gasoline and
diesel motor vehicle fuel are required to test reformulated gasoline
(RFG), conventional gasoline (CG) and diesel fuel for various fuel
parameters including sulfur, olefins, aromatics, and oxygenate content.
American Society for Testing and Materials (ASTM) test method D2622 is
currently a designated test method for measuring sulfur \1\ in
gasoline. ASTM test method D 3120 and ASTM D 5453 are currently
alternative test methods for measuring sulfur \2\ \3\ in gasoline. ASTM
test method D 1319 is currently a designated test method for measuring
olefins \4\ in gasoline and aromatics \5\ in diesel fuel and is also
allowed as an alternative test method for measuring aromatics \6\ in
gasoline. ASTM test method D 4815 is currently an alternative test
method for measuring oxygenate content \7\ in gasoline.
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    \1\ 40 CFR 80.46(a)(1).
    \2\ 40 CFR 80.46(a)(3)(iii).
    \3\ 40 CFR 80.46(a)(3)(i).
    \4\ 40 CFR 80.46(b).
    \5\ 40 CFR 80.2(z).
    \6\ 40 CFR 80.46(f)(3).
    \7\ 40 CFR 80.46(g)(2).
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    The American Petroleum Institute (API) recommended in a letter to
EPA that EPA update the ASTM test methods mentioned above to their most
recent ASTM version.\8\ API asked EPA to refer to the 2003 year version
of ASTM test method D 2622 in all references involving gasoline and
diesel fuels because this version of ASTM D 2622 includes an updated
precision statement as determined in a recent ASTM sulfur round robin.
API also recommended EPA adopt in the motor vehicle fuels regulations
the 2003a version of ASTM 3120, the 2003a version of ASTM D 5453, the
2003 version of ASTM D1319, and the 2003 year version of ASTM D 4815.
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    \8\ See Air Docket  EPA-HQ-OAR-2005-0048-0002.
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    Table 1 lists the designated analytical test methods and
alternative analytical test methods which are being updated for
parameters measured under RFG, CG, and diesel fuels program in today's
action. The Agency has reviewed these updated ASTM test methods and we
are in agreement with the revisions contained in them which will result
in improvements in the utilization of these test methods for the
regulated industry. We believe that the revisions in the test method
changes in today's action are not significant changes that would cause
a user of an older version of the same method to incur significant
costs. All of the revisions were deemed necessary by ASTM so that
improvements in the test method's procedures would ensure better
operation for the user of the test method. Thus, EPA is taking action
today to update the regulations for the following ASTM test methods:
(1) ASTM D 2622-03, the designated test method for measuring sulfur in
RFG, and CG, (2) ASTM D 3120-03a and ASTM D 5453-03a alternative test
methods for sulfur in gasoline, (3) ASTM D 1319-03, designated test
method for measuring olefins in gasoline and aromatics in diesel fuel,
as well as the alternative test method for measuring aromatics in
gasoline, and (4) ASTM 4815-03, alternative test method for measuring
oxygenate content in gasoline.

 Table 1.--Designated and Alternative ASTM Analytical Test Methods Under
             RFG, CG and Diesel Motor Vehicle Fuel Programs
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             Fuel parameter                ASTM analytical test method
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Sulfur (gasoline)......................  ASTM D 2622-03, entitled
                                          ``Standard Test Method for
                                          Sulfur in Petroleum Products
                                          by Wavelength Dispersive X-Ray
                                          Fluorescence Spectrometry''.

Sulfur (gasoline)......................  ASTM D 5453-03a, entitled,
                                          ``Standard Test Method for
                                          Determination of Total Sulfur
                                          in Light Hydrocarbons, Motor
                                          Fuels and Oils by Ultraviolet
                                          Fluorescence''.
Sulfur (gasoline)......................  ASTM D 3120-03a, entitled,
                                          ``Standard Test Method for
                                          Trace Quantities of Sulfur in
                                          Light Petroleum Hydrocarbons
                                          by Oxidative
                                          Microcoulometry''.
Oxygen content (gasoline)..............  ASTM D 4815-03, entitled
                                          ``Standard Test Method for
                                          Determination of MTBE, ETBE,
                                          TAME, DIPE, tertiary-Amyl
                                          Alcohol and C1 to C4 Alcohols
                                          in Gasoline by Gas
                                          Chromatography''.
Olefins (gasoline).....................  ASTM D 1319-03, entitled
                                          ``Standard Test Method for
                                          Hydrocarbon Types in Liquid
                                          Petroleum Products by
                                          Fluorescent Indicator
                                          Adsorption''.
Aromatics (gasoline and diesel)........  ASTM D 1319-03, entitled,
                                          ``Standard Test Method for
                                          Hydrocarbon Types in Liquid
                                          Petroleum Products by
                                          Fluorescent Indicator
                                          Absorption'', for diesel fuel,
                                          this method is the designated
                                          test method, for gasoline,
                                          this method is an alternative
                                          test method and if used as an
                                          alternative method, its
                                          results, must be correlated to
                                          ASTM D 5769-98.
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B. Replacing ASTM D 6428-99 With ASTM D 6920-03

    Refiners, importers and oxygenate blenders producing gasoline and
diesel motor vehicle fuels are required to test RFG, CG, and diesel
fuel for various fuel parameters including sulfur content. ASTM test
method D 6428-99 is currently the designated test method for measuring
the sulfur content of on-highway diesel fuel at the 15 ppm level \9\,
an alternative test method for measuring the sulfur content on-highway
diesel fuel at the 500 ppm level \10\, and an alternative test method
for measuring the sulfur content of gasoline.\11\
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    \9\ 40 CFR 80.580(a)(2).
    \10\ 40 CFR 80.580(a)(3)(ii).
    \11\ 40 CFR 80.46(a)(3)(ii).
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    ASTM D 6428-99 was developed by the ASTM D.16 Committee for
Aromatic Hydrocarbons and Related Chemicals. ASTM D 6428-99 does not
contain a precision statement in the test method for its use with
gasoline and diesel fuel. ASTM D.02, the Committee for Petroleum
Products and Lubricants, recently determined the precision for this
method with respect to gasoline and diesel fuels, and named the new
method containing the precision statement ASTM D 6920-03. Since ASTM D
6920-03 contains precision statements for the method as it applies to
gasoline and diesel, API requested that EPA refer to ASTM D 6920-03 in
all references with respect to gasoline and diesel fuel involving test
method ASTM D 6428-99.\12\ The Agency has evaluated API's request and
agrees that since ASTM D 6920-03 contains precision estimates for use
of the method with gasoline and diesel fuels, ASTM D 6920-03 is more
practical for use with our gasoline and diesel fuels programs compared
to ASTM D 6428-99. Thus, EPA is changing the regulations by replacing
ASTM D 6428-99 with ASTM D 6920-03 for the alternative test method for
measuring the sulfur content of diesel fuel at the 500 ppm level, and
the alternative test method for measuring the sulfur content of
gasoline.
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    \12\ See Air Docket EPA-HQ-OAR-2005-0048-0002.
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    The regulations state that until December 27, 2004, for 15 ppm
diesel fuel, regulated parties may use ASTM D 6428-99, the designated
test method, or ASTM D 5453-03a or ASTM D 3120-03a, two alternative
test methods, provided the alternative test method results are
correlated to the designated test method. After December 27, 2004,
regulated parties measuring motor vehicle diesel fuel and fuel
additives subject to the 15 ppm diesel sulfur standard must qualify
their test method on a site specific basis under the precision and
accuracy criteria specified in the regulations at 40 CFR 80.584. Once
they have completed this testing, they must submit their precision and
accuracy results to the Agency for approval to use their test method as
specified in the regulations at 40 CFR 80.585. Thus, after December 27,
2004, regulated parties may only use test methods that have been
qualified on a site specific basis that meet the accuracy and precision
criteria specified in the regulations at 40 CFR 80.584 and that have
been approved under the process specified in the regulations at 40 CFR
80.585. The December 27, 2004, date, provided regulated parties 180
days of lead time to qualify their test methods for use at each site
for measuring 15 ppm sulfur diesel fuel. Since today's rule will be
effective after December 27, 2004, the Agency is revising the
regulations by removing the now irrelevant designated and alternative
test method paragraphs that allow the use of ASTM D 6428-99, ASTM D
5453-03a, and ASTM D 3120-03a for 15 ppm sulfur diesel fuel (i.e., 40
CFR 80.580(b)(1) and 40 CFR 80.580(c)(1)). The regulations will then
only reflect the present situation in the regulations that all test
methods must qualify under the precision and accuracy criteria in the
regulations.

C. Test Method for Sulfur in Butane

    Certain parties blend butane into gasoline which has already been
manufactured and certified under EPA regulations. Effective January 1,
2004, the parties that blend butane into already made gasoline were
required to test the butane for sulfur content.\13\ Currently, ASTM D
3246-96 is the designated test method for measuring the sulfur content
of butane.
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    \13\ 40 CFR 80.46(a)(2).
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    Recently, API said in a letter to EPA that ASTM D 6667 is more
readily available, more reliable, and a better test method than ASTM D
3246.\14\ Thus, API requested EPA to change the designated test method
for measuring sulfur in butane to ASTM D 6667-01, and to continue to
allow ASTM D 3246-96 as an alternative test method. EPA has evaluated
API's request on this test method issue and agrees. Thus, EPA is taking
action to change the regulations making ASTM D 6667-01 the designated
test method for measuring

the sulfur content of butane. Additionally, ASTM test method D 3246-96
will continue to be allowed as an alternative test method, provided its
test results are correlated to ASTM D 6667-01, the designated test
method for sulfur in butane.
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    \14\ See Air Docket EPA-HQ-OAR-2005-0048-0002.
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    In the future, EPA intends to establish a performance-based test
method approach (PBTM) rule which would provide criteria for the
qualification of alternative test methods. Once a PBTM rule has been
established by the Agency, ASTM D 3246-96 may qualify under the PBTM
rule's criteria as an alternative test method.

D. Additional Alternative Test Method for Sulfur in Gasoline

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

E. Removal of Sunset Provision for Alternative Test Methods

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

    Refiners, importers and oxygenate blenders producing gasoline and
diesel motor vehicle fuel are required to test RFG, CG and diesel fuel
for various fuel parameters to determine compliance with EPA's motor
vehicle fuels standards. These fuels standards are listed in the
regulations at 40 CFR part 80.
    Each of EPA's motor vehicle fuel standards indicates the number of
significant digits which should be present in an observed measurement
number to be compared to the standard for the purpose of demonstrating
compliance. The appropriate number of significant digits to determine
compliance with a fuel standard regulation or to report on a reporting
form should be determined from the method outlined in section 3.1 of
the ASTM standard practice E 29-02[isin]1, entitled,
``Standard Practice for Using Significant Digits in Test Data to
Determine Conformance with Specifications''. Regulated parties
measuring a fuel parameter to determine compliance with a fuel standard
must report their test result out to the number of significant digits
specified in the applicable fuel standard. However, a test method used
to measure a certain fuel parameter may provide more significant digits
in its output than specified in the standard. When this situation
occurs, the regulated party should round their test result to determine
if they are in compliance with the standard. The American Society for
Testing and Materials (ASTM) has developed the standard practice, ASTM
E 29-02[isin]1, for this situation. The rounding method \18\
in this standard practice provides a procedure for rounding a test
result to the number of significant digits specified in some standard.
After using the rounding method specified in ASTM E 29-
02[isin]1, the regulated party may compare the resulting
number to the standard to determine whether they are in compliance.
    The Agency has reviewed the rounding method referenced in the
standard practice ASTM E 29-02[isin]1, and we are in
agreement with its use for this purpose. The Agency believes
referencing the ``rounding'' method (as contrasted with the
``absolute'' method) in this ASTM standard practice in EPA's
regulations will help to avoid confusion in the fuels distribution
system. Therefore, EPA is adding a new section to the motor vehicle
fuels regulations at 40 CFR 80.9. This new section would reference the
rounding method in ASTM E 29-02[isin]1. The rounding method
is the procedure to follow for rounding a test result when determining
compliance with EPA's motor vehicle fuels standards listed at 40 CFR
part 80.
    In the ``Proposed Rules'' section of today's Federal Register, we
are publishing a proposed rule that matches the substance of this
direct final rule. If the Agency receives adverse comment or a request
for public hearing by May 3, 2006, we will withdraw the direct final
rule by publishing a timely withdrawal notice in the Federal Register.
If the Agency receives no adverse comment or a request for public
hearing by May 3, 2006, these test method changes will be effective
sixty (60) days after publication of this direct final rule in the
Federal Register. We are confident that sixty(60) days is sufficient
lead time for industry to become familiar and implement these ASTM test
methods changes for the applications mentioned above.
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    \18\ The Rounding Method in ASTM E 29-02[isin]1
applies where it is the intent that a limited number of digits in an
observed value or calculated value are to be considered significant
for purposes of determining conformance to the number of figures
listed in a fuels standard. The rounded value should be compared to
the specified limit in the fuels standard, and conformance or non-
conformance with the specification in the fuels standard be based on
this comparison.

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III. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
    (2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
    (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.''
    It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.

B. Paperwork Reduction Act

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

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions. EPA has determined that it is not necessary
to prepare a regulatory flexibility analysis in connection with this
final rule.
    For purposes of assessing the impacts of today's direct final rule
on small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administrations' regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
    After considering the economic impacts of today's direct final rule
on small entities, EPA has concluded that this action would not have a
significant economic impact on a substantial number of small entities.
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, an agency may conclude that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic effect
on all of the small entities subject to the rule.
    All of the test method updates in today's action will improve the
performance and/or utilization by industry of the test methods. For the
two alternative test methods, ASTM D 1319 and ASTM D 4815, today's
action will continue to provide flexibility to the regulated community.
The allowance of ASTM D 7039-04 will provide additional flexibility to
the regulated community in meeting sulfur in gasoline testing
requirements. Referencing the rounding method in ASTM E 29-
02[isin]1 provides consistent guidance for the regulated
community when determining whether a test result is in conformance with
our motor vehicle fuels standards. Finally, for the measurement of
sulfur in butane, today's action will provide industry with a more
reliable, more readily available and better test method. We have
therefore concluded that today's rule will relieve regulatory burden
for all 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 why that
alternative

was not adopted. Before EPA establishes any regulatory requirements
that may significantly or uniquely affect small governments, including
tribal governments, it must have developed under section 203 of the
UMRA a small government agency plan. The plan must provide for
notifying potentially affected small governments, enabling officials of
affected small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
    Today's direct final rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for state, local or
tribal governments or the private sector. The rule would impose no
enforceable duty on any State, local or tribal governments or the
private sector.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    This direct final rule does not have federalism implications. It
would not have substantial direct effects on the states, on the
relationship between the National Government and the states, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. All of the test
method updates in today's action will improve the performance and/or
utilization by industry of the test methods. For the two alternative
test methods, ASTM D 1319 and ASTM D 4815, today's action will continue
to provide flexibility to the regulated community. The allowance of
ASTM D 7039-04 will provide additional flexibility to the regulated
community in meeting sulfur in gasoline testing requirements.
Referencing the rounding method in ASTM E 29-02[isin]1
provides consistent guidance for the regulated community when
determining whether a test result is in conformance with our motor
vehicle fuels standards. Finally, for the measurement of sulfur in
butane, today's action will provide industry with a more reliable, more
readily available and better test method. Thus, Executive Order 13132
does not apply to this direct final rule.

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

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

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

    Executive Order 13045: Protection of Children from Environmental
health Risks and Safety Risks (62 FR 19885, April 23, 1997) applies to
any rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
    EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This rule is not subject to
Executive Order 13045 because it does not establish an environmental
standard intended to mitigate health or safety risks that may
disproportionately affect children.

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

    This direct final rule is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it
is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
rulemaking involves technical standards. EPA has decided to use ASTM
standards as described in Units II.A, II.B, II.C, II.D and II.F of the
SUPPLEMENTARY INFORMATION section of this document. All technical
standards included in today's rule are standards

developed by ASTM, a voluntary consensus standards body, and thus
raises no issues under the NTTAA.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A ``major rule''
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(a).

VI. Statutory provisions and Legal Authority

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

List of Subjects in 40 CFR Part 80

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

    Dated: March 24, 2006.
Stephen L. Johnson,
Administrator.

0
For the reasons set forth in the preamble, part 80 of title 40, chapter
I of the Code of Federal Regulations is amended as follows:

PART 80--REGULATION OF FUELS AND FUEL ADDITIVES

0
1. The authority citation for part 80 continues to read as follows:

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

Subpart A--[Amended]

0
2. Section 80.2 is amended by revising paragraph (z) to read as
follows:

Sec.  80.2  Definitions.

* * * * *
    (z) Aromatic content is the aromatic hydrocarbon content in volume
percent as determined by ASTM standard test method D 1319-03, entitled,
``Standard Test Method for Hydrocarbon Types in Liquid Petroleum
Products by Fluorescent Indicator Adsorption''. ASTM test method D
1319-03 is incorporated by reference. This incorporation by reference
was approved by the Director of the Federal Register in accordance 5
U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from the
American Society for Testing and Materials, 100 Barr Harbor Dr., West
Conshohocken, PA 19428-2959. Copies may be inspected at the Air Docket,
EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington,
DC, or at the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, call 202-741-
6030 or go to: http:// www.archives.gov/federal--register/ code--of--

federal--regulations/ ibr--locations.html.
* * * * *

0
3. Section 80.9 is added to Subpart A to read as follows:

Sec.  80.9  Rounding a test result for determining conformance with a
fuels standard.

    (a) For purposes of determining compliance with the fuel standards
of 40 CFR part 80, a test result will be rounded to the nearest unit of
significant digits specified in the applicable fuel standard in
accordance with the rounding method described in the ASTM standard
practice, ASTM E 29-02[isin]1, entitled, ``Standard Practice
for Using Significant Digits in Test Data to Determine Conformance with
Specifications''.
    (b) ASTM standard practice, E 29-02[isin]1 is
incorporated by reference. This incorporation by reference was approved
by the Director of the Federal Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. A copy may be obtained from the American
Society for Testing and Materials, 100 Barr Harbor Dr., West
Conshohocken, PA 19428-2959. Copies may be inspected at the Air Docket,
EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington,
DC, or at the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, call 202-741-
6030 or go to: http://www.archives.gov/ federal--register/ code--of--

federal --regulations/ ibr--locations.html.
* * * * *

Subpart D--[Amended]

0
4. Section 80.46 is amended as follows:
0
a. By revising paragraphs (a)(1), (a)(2), (a)(3)(i) through (a)(3)(iii)
and (a)(4).
0
b. By adding paragraph (a)(3)(iv).
0
c. Revising paragraph (b).
0
d. Revising paragraph (f)(3)(i).
0
e. Revising paragraph (g)(2)(i).
0
f. Revising paragraph (h).

Sec.  80.46  Measurement of reformulated gasoline fuel parameters.

    (a) * * *
    (1) The sulfur content of gasoline must be determined by use of
American Society for Testing and Materials (ASTM) standard method D
2622-03, entitled ``Standard Test Method for Sulfur in Petroleum
Products by Wavelength Dispersive X-Ray Fluorescence Spectrometry'' or
by one of the alternative method specified in paragraph (a)(3) of this
section.
    (2) Beginning January 1, 2004, the sulfur content of butane must be
determined by the use of ASTM standard test method D 6667-01, entitled,
``Standard Test Method for Determination of Total Volatile Sulfur in
Gaseous Hydrocarbons and Liquefied Petroleum Gases by Ultraviolet
Fluorescence'' or by the alternative method specified in paragraph
(a)(4) of this section.
    (3) * * *
    (i) ASTM standard method D 5453-03a, entitled, ``Standard Test
Method for Determination of Total Sulfur in Light Hyrdocarbons, Motor
Fuels and Motor Oils by Ultraviolet Fluorescence,'' or
    (ii) ASTM standard method D 6920-03, entitled, ``Standard Test
Method for Total Sulfur in Naphthas, Distillates, Reformulated
Gasolines, Diesels, Biodiesels, and Motor Fuels by Oxidative Combustion
and Electrochemical Detection,'' or
    (iii) ASTM standard method D 3120-03a, entitled, ``Standard Test
Method for Trace Quantities of Sulfur in Light Liquid Petroleum
Hydrocarbons by Oxidative Microcoulometry.''
    (iv) ASTM standard method D 7039-04, entitled, ``Standard Test
Method for Sulfur in Gasoline and Diesel Fuel by Monochromatic
Wavelength Dispersive X-ray Fluorescence Spectrometry.''
    (4) Beginning January 1, 2004, any refiner or importer may
determine the sulfur content of butane using any of the following
methods; provided the refiner

or importer test result is correlated with the method specified in
paragraph (a)(2) of this section:
    (i) ASTM standard method D 4468-85 (Reapproved 2000), ``Standard
Test Method for Total Sulfur in Gaseous Fuels by Hydrogenolysis and
Rateometric Colorimetry,'' or
    (ii) ASTM standard method D 3246-96, entitled, ``Standard Test
Method for Sulfur in Petroleum Gas by Oxidative Microcoulemetry.''
    (b) Olefins. Olefin content shall be determined using ASTM standard
method D 1319B03, entitled ``Standard Test Method for Hydrocarbon Types
in Liquid Petroleum Products by Fluorescent Indicator Adsorption.''
* * * * *
    (f) * * *
    (3)(i) Any refiner or importer may determine aromatics content
using ASTM standard method D 1319-03, entitled ``Standard Test Method
for Hydrocarbon Types in Liquid Petroleum Products by Flourescent
Indicator Adsorption,'' for purposes of meeting any testing requirement
involving aromatics content; provided that
* * * * *
    (g) * * *
    (2)(i) When oxygenates present are limited to MTBE, ETBE, TAME,
DIPE, tertiary-amyl alcohol and C1 to C4
alcohols, any refiner, importer, or oxygenate blender may determine
oxygen and oxygen content using ASTM standard method D 4815-03
entitled, ``Standard Test Method for Determination of MTBE, ETBE, TAME,
DIPE, tertiary-Amyl Alcohol and C1 to C4 Alcohols
in Gasoline by Gas Chromatography,'' for purposes of meeting any
testing requirement; provided that
* * * * *
    (h) Incorporations by reference. ASTM standard methods D 3606-99,
entitled ``Standard Test Method for Determination of Benzene and
Toluene in Finished Motor and Aviation Gasoline by Gas
Chromatography;'' D 1319-03, entitled ``Standard Test Method for
Hydrocarbon Types in Liquid Petroleum Products by Fluorescent Indicator
Adsorption;'' D 4815-03, entitled ``Standard Test Method for
Determination of MTBE, ETBE, TAME, DIPE, tertiary-Amyl Alcohol and
C1 to C4 Alcohols in Gasoline by Gas
Chromatography;'' D 2622-03, entitled ``Standard Test Method for Sulfur
in Petroleum Products by Wavelength Dispersive X-Ray Fluorescence
Spectrometry;'' D 3246-96, entitled ``Standard Test Method for Sulfur
in Petroleum Gas by Oxidative Microcoulometry;'' D 5191-01, entitled,
``Standard Test Method for Vapor Pressure of Petroleum Products (Mini
Method);'' D 5599-00, entitled, ``Standard Test Method for
Determination of Oxygenates in Gasoline by Gas Chromatography and
Oxygen Selective Flame Ionization Detection;'' D 5769-98, entitled,
``Standard Test Method for Determination of Benzene, Toluene, and Total
Aromatics in Finished Gasolines by Gas Chromatography/Mass
Spectrometry,'' and D 86-01, entitled, ``Standard Test Method for
Distillation of Petroleum Products at Atmospheric Pressure;'' D 5453-
03a, entitled, ``Standard Test Method for Determination of Total Sulfur
in Light Hydrocarbons, Motor Fuels and Oils by Ultraviolet
Fluorescence,'' D 6920-03, entitled, ``Standard Test Method for Total
Sulfur in Naphthas, Distillates, Reformulated Gasolines, Diesels,
Biodiesels, and Motor Fuels by Oxidative Combustion and Electrochemical
Detection,'' D 3120-03a, entitled, ``Standard Test Method for Trace
Quantities of Sulfur in Light Petroleum Hydrocarbons by Oxidative
Microcoulometry,'' D 7039-04, entitled, ``Standard Test Method for
Sulfur in Gasoline and Diesel Fuel by Monochromatic Wavelength
Dispersive X-ray Fluorescence Spectrometry,'' D 6667-01, entitled,
``Standard Test Method for Determination of Total Volatile Sulfur in
Gaseous Hydrocarbons and Liquefied Petroleum Gases by Ultraviolet
Fluorescence,'' and D 4468-85 (Reapproved 2000), ``Standard Test Method
for Total Sulfur in Gaseous Fuels by Hydrogenolysis and Rateometric
Colorimetry'' are incorporated by reference in this section. These
incorporations by reference were approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
Copies may be obtained from the American Society for Testing and
Materials, 100 Barr Harbor Dr., West Conshohocken, PA 19428-2959.
Copies may be inspected at the Air Docket, EPA/DC, EPA West, Room B102,
1301 Constitution Ave., NW., Washington, DC, or at the National
Archives and Records Administration (NARA). For information on the
availability of this material at NARA, call<PHONE_NUMBER> or go to:
http://www.archives.gov/ federal--register/ code--of-- federal--

regulations/ ibr--locations. html.

Subpart I--[Amended]

0
5. Section 80.580 is amended as follows:
0
a. By removing and reserving paragraphs (b)(1) and (c)(1).
0
b. By revising paragraph (c)(2)(i).
0
c. By revising paragraph (e)(1)(v).

Sec.  80.580  What are the sampling and testing methods for sulfur?

* * * * *
    (b) Test method for sulfur. (1) [Reserved]
* * * * *
    (c) Alternative test methods for sulfur. (1) [Reserved]
    (2) Options for testing sulfur content of 500 ppm diesel fuel. (i)
For motor vehicle diesel fuel and diesel fuel additives subject to the
500 ppm sulfur standard of Sec.  80.520(c), and for NRLM diesel fuel
subject to the 500 ppm sulfur standard of Sec.  80.510(a), sulfur
content may be determined using ASTM D 4294-03, ASTM D 5453-03a, or
ASTM D 6920-03, provided that the refiner or importer test result is
correlated with the appropriate method specified in paragraph (b)(2) of
this section; or
* * * * *
    (e) * * *
    (1) * * *
    (v) D 6920-03, Standard Test Method for Total Sulfur in Naphthas,
Distillates, Reformulated Gasolines, Diesels, Biodiesels, and Motor
Fuels by Oxidative Combustion and Electrochemical Detection.
* * * * *
[FR Doc. 06-3133 Filed 3-31-06; 8:45 am]

BILLING CODE 6560-50-P


This document represents the best judgment of the EPA staff conducting analyses to support the Phase II Section 316( b) rule at this time. It does not represent the final position of the Administrator or EPA on this rulemaking. EPA reserves the right to change or amend any of the statements within this document up until the time that the EPA Administrator takes final action on this rule.

1. Note that this uses Salem results based on an extrapolation relevant baseline ( without screens) and, therefore, differs from Salem results in the case study ( with screens). APPENDIX 1: ADDITIONAL DETAIL ON EXTRAPOLATION The sections below present a detailed explanation of how the case study results are extrapolated to national benefits estimates. To keep this brief, we show the step by step calculations for estimating benefits from reducing impingement at in scope facilities located on non Gulf estuaries.

All monetary values in the memo are reported in thousands of 2001 dollars.

1. Extrapolation Based on Flow The first step in the flow ( or MGD) extrapolation is to estimate the national baseline loss for all in scope Estuary NonGulf facilities based on the Salem case study results and average daily flows at all in scope facilities. This flow extrapolation relies on two key pieces of data that are reported in Tables C3 1 and C3 2 in the Economics and Benefits Analysis, and is calculated as follows:

Salem baseline loss estimate middle case reported in Table C3 2; this is the average ( midpoint) of the benefits transfer/ RUM estimate1 $ 703.80 Salem normalized flow ( MGD) % of all in scope Estuary NonGulf flows; calculated from CBI; reported in Table C3 1 4.39480% National flow based estimate of baseline loss from impingement ( for 78 in scope Estuary NonGulf facilities) = Salem loss/ Salem normalized flow $ 16,014.38 The next step is to estimate the values for Table C3 3. In this case, all the case study values are simply reported in the table. The values for " All Other In Scope" facilities are calculated using the percentage of national flow ( by waterbody type) at these facilities. These are the values reported in Table C3 3 of the Economic and Benefits Analysis. This document represents the best judgment of the EPA staff conducting analyses to support the Phase II Section 316( b) rule at this time. It does not represent the final position of the Administrator or EPA on this rulemaking. EPA reserves the right to change or amend any of the statements within this document up until the time that the EPA Administrator takes final action on this rule.

2. Salem, Brayton Point, Contra Costa, and Pittsburg account for 7.1% of flows at non Gulf estuary in scope facilities. Facility Baseline impingement loss estimate Salem case study result from Table C3 2 $ 704 Brayton Point case study result from Table C3 2 $ 450 Contra Costa case study result from Table C3 2 $ 5,726 Pittsburg case study result from Table C3 2 $ 22,268 All other in scope = national extrapolation estimate * % of flow in all other in scope facilities2 = $ 16,014.38 * 0.92885 $ 14,875 Total ( for 78 in scope Estuary NonGulf facilities) $ 44,022 2. Extrapolation Based on Angling Days The first step in the extrapolation is to estimate the national baseline loss for all in scope Estuary NonGulf facilities based on the Salem case study results and estimated angling activity within a 120 mile radius of the facility. This angling extrapolation relies on two key pieces of data that are reported in Tables C3 1 and C3 2, and is calculated as follows:

Salem baseline loss estimate middle case reported in Table C3 2; this is the average ( midpoint) of the benefits transfer/ RUM estimate $ 703.80 Salem percentage of in scope angling base % of all in scope estuary NonGulf angling days; calculated from 1999 National Survey of Hunting, Fishing, and Wildlife Based Recreation; reported in Table C3 1 2.10301% National angling based estimate of baseline loss from impingement ( for 78 in scope Estuary NonGulf facilities) = Salem loss/ Salem normalized flow $ 33,466.32 This document represents the best judgment of the EPA staff conducting analyses to support the Phase II Section 316( b) rule at this time. It does not represent the final position of the Administrator or EPA on this rulemaking. EPA reserves the right to change or amend any of the statements within this document up until the time that the EPA Administrator takes final action on this rule.

3. Salem, Brayton Point, Contra Costa, and Pittsburg account for 5.1% of the " angling days" associated with inscope facilities in non Gulf estuaries. All other facilities therefore account for 94.9%. The next step is to estimate the values for Table C3 3. In this case, all the case study values are simply reported in the table. The values for " All Other In Scope" facilities are calculated using the percentage of national angling days ( by waterbody type) at these facilities. These are the values reported in Table C3 4 of the Economic and Benefits Analysis.

Facility Baseline impingement loss estimate Salem case study result from Table C3 2 $ 704 Brayton Point case study result from Table C3 2 $ 450 Contra Costa case study result from Table C3 2 $ 5,726 Pittsburg case study result from Table C3 2 $ 22,268 All other in scope = national extrapolation estimate * % of angling days at all other in scope facilities3 = $ 33,466.32* 0.94888 $ 31,755 Total ( for 78 in scope Estuary NonGulf facilities) $ 60,903 3. Best Estimate Baseline Loss The calculation of the best estimates varies by water body type. For the Estuary NonGulf, Estuary Gulf, and Freshwater categories, the average of the flow based and angling based extrapolations was used. For the Great Lakes and Ocean categories, the flow based extrapolation was used exclusively. This document represents the best judgment of the EPA staff conducting analyses to support the Phase II Section 316( b) rule at this time. It does not represent the final position of the Administrator or EPA on this rulemaking. EPA reserves the right to change or amend any of the statements within this document up until the time that the EPA Administrator takes final action on this rule.

Facility Baseline impingement loss estimate Salem case study result from Table C3 2 $ 704 Brayton Point case study result from Table C3 2 $ 450 Contra Costa case study result from Table C3 2 $ 5,726 Pittsburg case study result from Table C3 2 $ 22,268 All other in scope average of middle case values from Tables C3 3 and C3 4 $ 24,835 Total ( for 78 in scope Estuary NonGulf facilities) $ 57,802 4. Benefits There are two steps to calculating benefits from the baseline loss estimates developed in steps 1 3. First, the loss estimates are weighted using sample weights developed by Abt Associates for use in the cost analysis. Second, estimated percent reductions in I& E are applied to the estimated baseline loss ( i. e., benefits equal reductions in loss that are assumed to be directly proportional to the reduction in I& E estimated for each regulatory option).

4.1 Sample Weighted Benefits There are 550 in scope facilities for this rule making. Of the 550, a total of 539 completed EPA's facility survey. To estimate the costs at all 550 facilities, EPA developed sample weights. To develop benefits estimates that are consistent with the cost estimates, we applied the same weights to our benefits estimates. The weights for all facilities are reported below. This document represents the best judgment of the EPA staff conducting analyses to support the Phase II Section 316( b) rule at this time. It does not represent the final position of the Administrator or EPA on this rulemaking. EPA reserves the right to change or amend any of the statements within this document up until the time that the EPA Administrator takes final action on this rule.

Facility Waterbody type Weight Salem Estuary  NonGulf 1 Brayton Point Estuary  NonGulf 1.111184516 Contra Costa Estuary  NonGulf 1.225968333 Pittsburg Estuary  NonGulf 1.111184516 All other in scope Estuary  NonGulf 1.065172214 4 Tampa facilities Estuary  Gulf 1 All other in scope Estuary  Gulf 1.000506073 29 Ohio facilities Freshwater 1.008699453 Monroe Freshwater 1.013157895 All other in scope Freshwater 1.009608142 JR Whiting Great Lake 1 All other in scope Great Lake 1 Pilgrim Nuclear Ocean 1.225968333 Seabrook Nuclear Ocean 1 All other in scope Ocean 1.062051309 Applying these weights to the best estimate baseline loss estimates from step 3 yields sampleweighted baseline loss estimates. These are the baseline losses used in calculating benefits from the proposed rule.

Facility Sample weighted impingement baseline loss estimate Salem = $ 704 * 1 $ 704 Brayton Point = $ 450 * 1.111184516 $ 500 Contra Costa = $ 5,726 * 1.225968333 $ 7,020 Pittsburg = $ 22,268 * 1.111184516 $ 24,744 All other in scope = $ 24,835 * 1.065172214 $ 24,835 Total ( for 78 in scope Estuary NonGulf facilities) $ 57,802 This document represents the best judgment of the EPA staff conducting analyses to support the Phase II Section 316( b) rule at this time. It does not represent the final position of the Administrator or EPA on this rulemaking. EPA reserves the right to change or amend any of the statements within this document up until the time that the EPA Administrator takes final action on this rule.

4.2 Estimated Percent Reductions in I& E To determine the benefits of the rulemaking, EPA estimated the percent reductions in I& E at each facility under the various policy options. In a separate assessment, EPA estimated the percent reduction in impingement and entrainment for each in scope facility, for each regulatory option. Using these estimates, we calculated a weighted average percent reduction for each waterbody type using average daily flow as the weight. These weighted average reductions are presented in Tables C4 1 and C4 3. The estimated reductions for the Estuary NonGulf category are reported below.

To estimate benefits attributable to the rule, we multiplied the estimated percent reduction and the sample weighted baseline loss for each waterbody category. For example, the benefits calculations for impingement reductions in non Gulf estuaries are as follows:

Option Estimated % impingement reduction Estimated benefits (=$ 57,802 * % impingement reduction) Option 1 64.415% $ 37,233 Option 2 47.493% $ 27,452 Option 3 33.204% $ 19,193 Option 3a 25.526% $ 14,754 Option 4 41.390% $ 23,924 Option 5 97.468% $ 56,338 Option 6 84.386% $ 48,777


[Federal Register Volume 83, Number 206 (Wednesday, October 24, 2018)]
[Notices]
[Pages 53738-53740]
[FR Doc No: 2018-23231]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-2018-0032]

Qualification of Drivers; Exemption Applications; Diabetes
Mellitus

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition.

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SUMMARY: FMCSA announces its decision to exempt 54 individuals from the
prohibition in the Federal Motor Carrier Safety Regulations (FMCSRs)
against persons with insulin-treated diabetes mellitus (ITDM) from
operating a commercial motor vehicle (CMV) in interstate commerce. The
exemptions enable these individuals with ITDM to operate CMVs in
interstate commerce.

DATES: The exemptions were applicable on August 17, 2018. The
exemptions expire on August 17, 2020.

FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief,
Programs Division,<PHONE_NUMBER>, [email protected], FMCSA,
Department of Transportation, 1200 New Jersey Avenue SE, Room W64-224,
Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m.,
ET, Monday through Friday, except Federal holidays. If you have
questions regarding viewing or submitting material to the docket,
contact Docket Services, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Public Participation

A. Viewing Documents and Comments

    To view comments, as well as any documents mentioned in this notice
as being available in the docket, go to http://www.regulations.gov.
Insert the docket number, FMCSA-2018-0032, in the keyword box, and
click ``Search.'' Next, click the ``Open Docket Folder'' button and
choose the document to review. If you do not have access to the
internet, you may view the docket online by visiting the Docket
Management Facility in Room W12-140 on the Ground Floor of the DOT West
Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9
a.m. and 5 p.m., ET, Monday through Friday, except Federal holidays.

B. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.

II. Background

    On July 17, 2018, FMCSA published a notice announcing receipt of
applications from 53 individuals requesting an exemption from the
insulin-treated diabetes mellitus prohibition in 49 CFR 391.41(b)(3),
to operate a CMV in interstate commerce and requested comments from the
public (83 FR 27070). The public comment period ended on August 16,
2018, and one comment was received.
    FMCSA has evaluated the eligibility of these applicants and
determined that granting the exemptions to these individuals would
achieve a level of safety equivalent to or greater than the level that
would be achieved by complying with the current regulation 49 CFR
391.41(b)(3).
    The physical qualification standard for drivers regarding diabetes
found in
    49 CFR 391.41(b)(3) states that a person is physically qualified to
drive a CMV if that person has no established medical history or
clinical diagnosis of diabetes mellitus currently requiring insulin for
control.

III. Discussion of Comments

    FMCSA received one comment in this proceeding. Alexandra Reese from
the state of Minnesota stated that the state of Minnesota has no
objections to granting diabetes exemptions to Benjamin J. Boeding and
Thomas W. Markham.

IV. Basis for Exemption Determination

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption
for up to five years from the diabetes standard in 49 CFR 391.41(b)(3)
if the exemption is likely to achieve an equivalent or greater level of
safety than would be achieved without the exemption. The exemption
allows the applicants to operate CMVs in interstate commerce. FMCSA
grants exemptions from the FMCSRs for a two-year period to align with
the maximum duration of a driver's medical certification.
    The Agency's decision regarding these exemption applications is
based on the program eligibility criteria and an individualized
assessment of information submitted by each applicant. The
qualifications, experience, and medical condition of each applicant
were stated and discussed in detail in the July 17, 2018, Federal
Register notice (83 FR 33297) and will not be repeated in this notice.
    These 54 applicants have had ITDM over a range of 1 to 46 years.
These applicants report no severe hypoglycemic reactions resulting in
loss of consciousness or seizure, requiring the assistance of another
person, or resulting in impaired cognitive function that occurred
without warning symptoms, in the past 12 months and no recurrent (two
or more) severe hypoglycemic episodes in the past five years. In each
case, an endocrinologist verified that the driver has demonstrated a
willingness to properly monitor and manage his/her diabetes mellitus,
received education related to diabetes management, and is on a stable
insulin regimen. These drivers report no other disqualifying
conditions, including diabetes related complications. Each meets the
vision requirement at 49 CFR 391.41(b)(10).
    Consequently, FMCSA finds that in each case exempting these
applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is
likely to achieve a level of safety equal to that existing without the
exemption.

V. Conditions and Requirements

    The terms and conditions of the exemption are provided to the
applicants in the exemption document and includes the following: (1)
Each driver must submit a quarterly monitoring checklist completed by
the treating endocrinologist as well as an annual checklist with a
comprehensive medical evaluation; (2) each driver must report within
two business days of occurrence, all episodes of severe hypoglycemia,
significant complications, or inability to manage diabetes; also, any
involvement in an accident or any other adverse event in a CMV or
personal vehicle, whether or not it is related to an episode of
hypoglycemia; (3) each driver must provide a copy of the
ophthalmologist's or optometrist's report to the Medical Examiner at
the time of the annual medical examination; and (4) each driver must
provide a copy of the annual medical certification to the employer for
retention in the driver's qualification file, or keeping a copy in his/
her driver's qualification file if he/she is self-employed. The driver
must also have a copy of the exemption when driving, for presentation
to a duly authorized Federal, State, or local enforcement official.

VI. Preemption

    During the period the exemption is in effect, no State shall
enforce any law or regulation that conflicts with this exemption with
respect to a person operating under the exemption.

VII. Conclusion

    Based upon its evaluation of the 53 exemption applications, FMCSA
exempts the following drivers from the rule prohibiting drivers with
ITBM from driving CMV's in interstate commerce in 49 CFR 391.41(b)(10),
subject to the requirements cited above:

David V. Amado (CA)
Allan D. Arcand (WI)
Nickie D. Archuleta (PA)
Mathew B. Bartlett (IA)
Sean S. Bateman (NY)
Marvin E. Battle, Jr. (GA)
Gordon R. Bayles (UT)
Kirk W. Behrer (PA)
Benjamin J. Boeding (MN)
Robert A. Bowman (KY)
Michael G. Cohen (NY)
John R. Delucca (IN)
James M. Dubay (MI)
Larry I. Frizell (IA)
Gerson A. Gonzalez (NJ)
David D. Gross (PA)
Ricky A. Kirby (KY)
Dustin M. Kirkland (OH)
Scott M. Kiser (GA)
Lee E. Koehn (AL)
Wayne L. Kracht (IA)
Jeffrey L. Kramer (OH)
Brad M. Ligols (MA)
Kenneth J. Lubanski (NJ)
Thomas W. Markham (MN)
Richard T. McAtee II (OH)
John T. McEntire III (SC)
Jonathan D. Miles (IN)
Brian J. Morgan (VT)
Cecil M. Morris, Jr. (KY)
Nicholas C. O'Connor (MA)
Rowdy V. Orr (TX)
Neal J. Pangrazio (NY)
William T. Phipps, Jr. (MD)
Robert A. Pope (IA)
Micky J. Powers (MI)
Shawn K. Richardson (WA)
Joselito Rosario (MA)
Gregory L. Ryan (DE)
Howard G. Schrepp (GA)
James W. Shirk (PA)
Michael J. Simko (PA)
Roderick Q. Smith (IL)
Walter C. Snoodgrass, Jr. (IN)
Robert W. Stewart (NC)
Joseph W. Symons (MI)
Felipe D. Torres (TX)
James J. Triplett (TN)
Amos L. Trujillo (NM)
Lynda D. Vance (TN)
Christopher E. Vazquez (CT)
Michael J. Vigna (IL)
Brian P. Walsh (IA)

Nathan L. Watson (TX)

    In accordance with 49 U.S.C. 31136(e) and 31315, each exemption
will be valid for two years from the effective date unless revoked
earlier by FMCSA. The exemption will be revoked if the following
occurs: (1) The person fails to comply with the terms and conditions of
the exemption; (2) the exemption has resulted in a lower level of
safety than was maintained prior to being granted; or (3) continuation
of the exemption would not be consistent with the goals and objectives
of 49 U.S.C. 31136(e) and 31315.

    Issued on: October 15, 2018.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2018-23231 Filed 10-23-18; 8:45 am]
 BILLING CODE 4910-EX-P