----------------------------------------------------------------------------------------------------------------

1. Background
    We have historically used survey programs to provide flexibilities
in fuel quality programs that we administer, which allows regulated
parties to more efficiently meet EPA's fuel quality standards. For
example, we provided RFG refiners with the option of complying with RFG
requirements on an average basis by demonstrating that RFG meets the
applicable in-use oxygen content and NOX, toxics, and
summertime VOC performance at retail stations. By relying on an in-use
survey at the retail level to verify overall compliance, the
regulations thus allow RFG refiners considerable flexibility in their
day-to-day operations to produce fuel at the lowest cost. The norm for
over 20 years has thus been that RFG refiners and importers produce a
sub-octane, oxygenate-free RBOB that is distributed throughout the
distribution system to which ethanol is added at downstream terminals.
The retail survey then allows for verification that the RFG standards
are met in-use. Since most RFG areas are supplied by multiple refiners,
we allowed RFG refiners and importers to consolidate resources to
establish a survey to demonstrate that RFG standards were met for RFG
areas on average.
    Additionally, in order to discourage misfueling of vehicles and
engines, we have historically imposed pump labeling requirements at the
retail level. In order to provide oversight of the thousands of retail
stations, we also currently have provisions for a retail outlet survey
to ensure that fuel dispensers are labeled appropriately (e.g., E15). A
statistically representative sample of retail outlet fuel dispensers
gathered through a survey helps inform responsible parties and EPA
whether labeling requirements are being met without having to impose
direct costs on the retail outlet to demonstrate compliance.
    The focus of much of part 80 compliance oversight has been on
refiners that manufacture fuels at crude oil refineries with provisions
that then attempt to ensure that the fuel quality as measured at the
refinery is maintained all the way to retail. What happens at the
refinery has historically been and continues to be the greatest factor
as to whether a fuel is ultimately compliant. However, as the
transportation fuel market has continued to evolve and parties at all
locations downstream of refineries (e.g., pipeline, terminal, retail)
are now increasingly engaged in the process of producing finished fuels
(i.e., adding ethanol or gasoline blendstocks into PCG, or adding
biodiesel into diesel fuel), it has likewise become more important to
not only receive information from the manufacturers of gasoline and
diesel fuel at the start of the process, but also from the end of the
process--at retail level--to ensure fuel quality standards are met. In
the past this was mostly necessary just for RFG to ensure that the
oxygenate was in fact added to the refinery-certified RBOB downstream
and the RFG standards were met. However, now that essentially all
gasoline has ethanol added downstream to a refinery-produced and/or
certified CBOB and many parties are taking actions that can impact fuel
quality downstream of the refinery, all in-use gasoline could benefit
from a retail survey. Without it we could not implement the changes
discussed in Section VII.F to allow refiners and importers to account
for the downstream addition of ethanol in their compliance
calculations. Consequently, we are extending the retail survey that

has been applicable for over 20 years in RFG areas to all gasoline
nationwide. The national in-use gasoline survey will provide EPA with
the data necessary to ensure that in-use gasoline is in fact blended
with ethanol as claimed by the gasoline manufacturer, meets our
gasoline standards, and continues to meet RFG and anti-dumping
statutory requirements. An in-use survey will also enable EPA to
provide compliance flexibility to CG refiners and importers similar to
RFG refiners and importers.
2. National Fuels Survey Program
a. Consolidation and Scope
    We are finalizing the consolidation of the four in-use survey
programs outlined in Table X.A-1 into a single national fuels survey
program (NFSP). We believe the expanded scope of gasoline samples
tested nationwide will help us ensure fuel quality oversight and
compliance with EPA's applicable fuel quality standards in-use. This
will also provide compliance flexibility for CG manufacturers to
account for oxygenate (as discussed in Section VII.F). As previously
explained, the ULSD and E15 survey programs under part 80 are national
surveys of retail stations but only test for sulfur in diesel fuel and
ethanol content and RVP of gasoline in the summer. On the other hand,
the RFG survey and RFG ethanol survey are limited to RFG areas but test
for the full suite of Complex Model fuel parameters. We believe there
is technical support for allowing a survey program to collect a sample
that satisfies multiple survey requirements (i.e., as long as retail
stations are identified using sound selection procedures, there is no
reason an independent surveyor could not obtain both a gasoline and a
diesel fuel sample to satisfy all applicable survey program
requirements).
    The main benefit to stakeholders of consolidation of the current
four survey programs into a single program is a substantial reduction
in sample size. Under part 80, the four survey programs require
industry participants to contract for over 18,000 fuel samples
collected nationwide (see Table X.A-1 above). As further discussed in
Section X.A.2.c, the required sample size of the NFSP under part 1090
could be reduced to less than 7,000 retail outlets sampled. Since the
largest expense in retail surveying is the cost to collect and ship a
sample from a retail station, reducing the sample size from more than
18,000 to less than 7,000 will substantially decrease the costs of the
program.
    The main benefit to EPA and the public is the expanded scope of
testing for regulated fuel parameters to all fuel nationwide. Under the
part 80 programs, the RFG survey programs test approximately 30 percent
of the national gasoline pool for the entire set of Complex Model fuel
parameters, while in the nationwide E15 survey, only ethanol content
year-round and RVP for E15 samples in the summer are tested.
    In addition to consolidating the four survey programs into a
single, nationwide program, the gasoline properties tested for will
also be consolidated. Sulfur, benzene, RVP (in the summer), and
oxygenates will be tested for all the samples. A statistically
determined subset of the national gasoline sample will be tested for
the rest of the Complex Model fuel parameters to allow us to verify
that gasoline continues to meet CAA section 211(k) requirements. The
NFSP will also continue to ensure E15 pump labeling compliance at
retail stations. For diesel samples, the survey will continue to test
for sulfur.
    We received several comments that supported this consolidation and
most of those comments appreciated the reduced burden associated with
the sample size reduction. We also received comments suggesting the
removal of the verification of E15 compliance from the NFSP. We did not
propose and are not removing the existing survey requirement for fuel
and fuel additive manufacturers that make E15 or ethanol for use in
making E15. Participation in this survey is mandatory under CAA section
211(f) and was established under CAA section 211(c) to ensure that E15
fuel dispensers are labeled correctly. We consider these comments
outside the scope of this action.
b. Survey Participation
    Gasoline manufacturers only need to participate in the NFSP if they
choose to account for oxygenate added downstream in their compliance
calculations. Under part 80, the RFG regulations imposed a similar
survey requirement on RFG refiners and importers that accounted for
oxygenate added downstream \88\ and since we are now allowing this
flexibility for manufacturers of CG, we are imposing a similar survey
requirement. We believe that monitoring in-use sulfur, benzene, and
oxygenate content is necessary to allow this flexibility for all
gasoline manufacturers because without in-use verification from a
national survey, there would be no oversight on whether gasoline
manufacturers claimed credit for oxygenate that was ultimately not
blended.
---------------------------------------------------------------------------

    \88\ See 40 CFR 80.69.
---------------------------------------------------------------------------

    Under part 1090, parties that participate in the NFSP will satisfy
one of the elements of an affirmative defense for downstream violations
of our applicable fuel quality standards. Under part 80, we provide an
affirmative defense for upstream parties that participate in survey
programs to ensure downstream compliance for the ULSD survey. We are
extending this affirmative defense for any party that participates in
the NFSP to help establish a defense against downstream diesel sulfur,
gasoline sulfur, gasoline RVP, and E15 misfueling violations in part
1090. We believe that parties that are part of the ULSD distribution
system that participate in the part 80 ULSD survey program will
continue to participate in the NFSP as well as other parties in the
gasoline distribution system that wish to use the survey to help
establish affirmative defenses against downstream violations.
    Under the E15 partial waivers and E15 substantially similar
determination, fuel and fuel additive manufacturers that make E15 or
ethanol for use in making E15 must participate in a compliance survey
that ensures that E15 pump dispensers are labeled appropriately.\89\
The E15 partial waiver conditions provide fuel and fuel additive
manufacturers two options to satisfy the compliance survey condition:
(1) A geographically-focused survey; or (2) a national survey. Under
part 1090, we are finalizing as proposed that participation in the NFSP
would satisfy the national survey option for purposes of compliance
with the E15 waiver conditions or E15 substantially similar
determination. The E15 waiver conditions and E15 substantially similar
determination allow E15 fuel and fuel additive manufacturers to
continue to use a geographically-focused option instead if they so
desired, and part 1090 includes provisions to facilitate such a
program. However, we expect that fuel and fuel additive manufacturers
will continue to elect to participate in the NFSP due to its
significant cost savings.
---------------------------------------------------------------------------

    \89\ See 75 FR 68094 (November 4, 2010), 76 FR 4662 (January 26,
2011), and 84 FR 26980 (June 10, 2019).
---------------------------------------------------------------------------

c. Sample Sizes
    For the NFSP, we are finalizing the proposed minimum sample size of
5,000 gasoline retail outlets and 2,000 diesel outlets. As outlined in
the NPRM, we selected the number of retail outlets for gasoline and
diesel based on the recent sample size determinations of the existing
part 80 survey programs and

proposed the same sample size determination methodology that is used
for those programs. This resulted in approximately 5,000 retail outlets
since the existing survey program for E15 misfueling mitigation is
national in scope. We also highlighted that since most retail outlets
offer both gasoline and diesel fuel, the total number of retail outlets
sampled could be closer to 5,000 retail outlets rather than 7,000
outlets. This is significantly lower than the 18,000 retail outlets
required under part 80. We believe that it will maintain the
statistical rigor of the existing part 80 programs while reducing
costs. We received several supportive comments in the burden reduction
associated with the consolidation of the part 80 survey programs into a
single program. We did not receive any comments suggesting that we use
a different sample size or sample size selection methodology.
    For the subset of gasoline samples that would continue to be tested
for the full suite of Complex Model fuel parameters, we proposed that
the sample size would be determined using a standard calculation to
estimate national fuel parameters. We estimated that around 1,200
gasoline samples would need to be analyzed for the full suite of
Complex Model fuel parameters using this methodology. We received no
comment suggesting an alternative methodology to calculate the number
of gasoline samples that would be tested for the full suite of Complex
Model fuel parameters, therefore, we are finalizing as proposed the
requirement to test a subset of gasoline samples for all fuel
parameters of the Complex Model and the methodology to determine the
sample size of such gasoline samples.
d. Requirements for Independent Surveyors
    We are retaining and transferring certain existing requirements for
independent surveyors in part 80 to part 1090. These include the
requirement that an independent surveyor must conduct the NFSP and meet
similar independence requirements from parties that hire the surveyor
to conduct the program. The independent surveyor is not allowed to have
financial interest in companies that hire the independent surveyor to
conduct the survey, nor are companies that hire the independent
surveyor allowed to have a financial interest in the independent
surveyor's organization. Like the part 80 survey programs, the surveyor
must submit an annual plan for surveys conducted under part 1090 to EPA
for approval. The plan must identify how the independent surveyor
intends to meet the survey regulatory requirements and is subject to
EPA approval prior to conducting the survey. Additionally, the
independent surveyor must submit annually to EPA proof that the NFSP
has been fully funded for the next compliance period by December 15.
Except for comments that suggested that the employment criteria for
independence should be shortened from three years to one year
(discussed in more detail in Section XIII.A, we received no comments on
the proposed requirements for the independent surveyor. Therefore, we
are otherwise finalizing these provisions as proposed.
    As part of our effort to modernize the fuel quality programs, we
are requiring under part 1090 that independent surveyors register with
EPA and submit periodic reports electronically to EPA, which is not
currently required under the part 80 survey programs. This will help
EPA more quickly provide information collected as part of the NFSP and
promote greater transparency in the fuel quality program. The proposed
reporting requirements for independent surveyors are similar to those
currently specified in part 80, and the independent surveyor will need
to keep records in a similar manner. We received no comments on our
proposal to require independent surveyors to register with EPA and
submit reports electronically and therefore are finalizing these
provisions as proposed.

B. National Sampling and Testing Oversight Program

    The RFG regulations in part 80 require that each refiner have an
independent laboratory sample and test batches of RFG (unless the RFG
refiner has an in-line blending waiver). Refiners have the choice of
having an independent lab sample and test 100 percent of their batches
or 10 percent of their batches randomly selected. Since arranging to
have an independent laboratory collect a sample is the most expensive
part of the process, commenters argued that this requirement is
unnecessarily burdensome. Part 80 also requires that every 33rd batch
of RFG collected by an independent lab must be sent to EPA for
analysis.\90\ As part of consolidating the compliance provisions across
the various gasoline and diesel fuel to create a single fuel quality
program, and in light of the retirement of the Complex Model for batch
certification and removal of various restrictions on the production and
use of RFG, we considered how best to ensure proper EPA oversight of
the sampling and testing for fuels compliance.
---------------------------------------------------------------------------

    \90\ See ``Consolidated List of Reformulated Gasoline and Anti-
Dumping Questions and Answers: July 1, 1994 through November 10,
1997,'' EPA-420-R-03-009, July 2003.
---------------------------------------------------------------------------

    In lieu of the existing RFG requirements, we are finalizing the
more flexible and less burdensome NSTOP as proposed. The purpose of
this proposed program is to help ensure that fuel manufacturers are
sampling and testing in a manner consistent with the required
procedures discussed in more detail in Section IX.
    As part of the NSTOP, we are requiring that the independent
surveyor review appropriate PBMS qualification and SQC data for the
samples collected and tested from gasoline manufacturers. We believe
that this will help ensure that labs that test gasoline for compliance
under our fuel quality programs are complying with EPA quality control
provisions for labs.
    Like the NFSP described in Section X.A, we believe there is an
opportunity to reduce the overall cost of sampling oversight while
expanding the scope from just RFG to all gasoline nationwide. Taken
together, we are requiring an estimated 500-750 samples to be collected
as part of NSTOP annually. This compares to the several thousand
samples currently collected from RFG refiners each year under the part
80 independent laboratory requirements. These samples would be spread
across all gasoline manufacturers instead of just RFG refiners. This
provides a substantial reduction in associated burden with independent
sampling while still providing the necessary oversight.
    We are finalizing the requirement that gasoline manufacturers that
elect to account for oxygenate added downstream must participate in
NSTOP. We believe this requirement will help ensure that fuel
manufacturers are sampling, testing, and reporting results of gasoline
that is representative of gasoline (i.e., BOB) leaving the fuel
manufacturing facility gate. We are also exempting refineries that have
in-line blending waivers from NSTOP as proposed since these refineries
must meet the annual audit requirement using an auditor.
    Gasoline manufacturers that participate in the program will need to
arrange for a sample to be overseen by an independent surveyor for each
season (winter and summer). This would mean that, as long as a gasoline
manufacturer has product available for testing, the gasoline
manufacturer would have at least two samples collected per year. We are
requiring that an additional number of random samples be collected to
ensure an effective deterrent against complacency

for parties that have samples collected early in a season. For example,
if we only required sampling once per season and a gasoline
manufacturer had a winter sample surveyed in January of a compliance
period, that gasoline manufacturer would not be surveyed in the winter
for the rest of the compliance period. Additional random sampling will
help ensure that gasoline manufacturers are following appropriate
sampling and testing procedures year-round, even if sampled early in
the season.
    Historically, EPA's National Vehicle and Fuel Emissions Laboratory
(NVFEL) has played a role in the development and quality control of
analytical test methods used to determine compliance with our fuel
quality standards. Under part 80, as part of the RFG program, NVFEL
receives several hundred oversight samples from RFG refiners and
independent laboratories. NVFEL analyzes these samples and compares the
results to results from RFG refiners and independent labs, which totals
between 300-400 RFG samples per year.\91\ Under part 1090, we will no
longer collect these oversight samples from RFG refiners and
independent labs, as proposed. However, as part of the NSTOP, we are
requiring that the independent surveyor send a random selection of
samples collected to NVFEL for comparison to the results obtained from
the independent surveyor and fuel manufacturer's lab. This will allow
NVFEL to continue to serve as a reference installation and maintain EPA
oversight of the NSTOP. We intend to collect a similar amount of
gasoline samples, around 300 per year, as we currently receive under
the RFG program. We received one comment noting that having NSTOP
samples shipped to NVFEL would unnecessarily add costs to the NSTOP for
little value. For reasons discussed in more detail in Section 16 of the
RTC document, we are finalizing as proposed that some NSTOP samples be
shipped to NVFEL.
---------------------------------------------------------------------------

    \91\ See ``Consolidated List of Reformulated Gasoline and Anti-
Dumping Questions and Answers: July 1, 1994 through November 10,
1997,'' EPA-420-R-03-009, July 2003.
---------------------------------------------------------------------------

    Like the NFSP, we are requiring that an independent surveyor
conduct the NSTOP. We envision that these parties would function
similar to the way that independent surveyors operate under the part 80
survey programs. Therefore, we are requiring the same independence and
plan approval process as those used for independent surveyors under the
NFSP, which is similar to the part 80 survey requirements. The only
difference would be a change in the reported elements as samples are
collected from gasoline manufacturing facilities instead of retail
stations. We did not receive any comments on this aspect of the NSTOP
and are finalizing the requirements for independent surveyors
conducting the NSTOP as proposed.
    In the proposal, we also sought comment on whether to maintain the
existing RFG independent laboratory testing requirement or whether to
require that third-party laboratories that perform testing for fuel
manufacturers under the NSTOP also register and associate. We received
several comments suggesting that the RFG independent laboratory testing
requirement was no longer necessary and that associated burdens with
requiring all third-party laboratories to register and associate with
fuel manufacturers would be cost prohibitive. We also received
comments, mostly from third-party laboratories, noting that we should
maintain the RFG independent testing requirement or require the
registration of third-party labs as a means to help ensure the
integrity of sampling and testing performed by third-parties for fuel
manufacturers. For reasons discussed in more detail in Section 13 of
the RTC document, we are finalizing as proposed the removal of the RFG
independent lab testing requirement and are not finalizing a
requirement that all third-party laboratories register and associate
with fuel manufacturers.
    A number of commenters included suggestions and requests for
clarification regarding the NSTOP and we have reflected them in the
final regulations as appropriate. We address these comments in Section
13 of the RTC document.

XI. Import of Fuels, Fuel Additives, and Blendstocks

    We are transferring most of the current provisions in part 80 that
address the importation and exportation of fuels, fuel additives, and
blendstocks to part 1090 (subpart Q). As described in this section,
importers will continue to be subject to the same requirements as
refiners, while exporters will continue to be subject to certain fuel
designation and recordkeeping provisions. Overall, we are making
several changes to how imported and exported fuel products are treated
relative to the provisions of part 80, although we are significantly
updating the regulatory text. Many of the modified part 1090 provisions
are merely codification of existing implementation policies summarized
in a 2003 question and answer (Q&A) document (``2003 Q&A
document'').\92\
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    \92\ See Section IX.C, ``Consolidated List of Reformulated
Gasoline and Anti-Dumping Questions and Answers: July 1, 1994
through November 10, 1997,'' EPA-420-R-03-009, July 2003.
---------------------------------------------------------------------------

A. Importation

    With few exceptions, we are finalizing the proposed requirements
under part 1090 for importers that largely mirror what we require under
part 80. However, we are updating some provisions for imports in part
1090. First, importers that import fuel at multiple import facilities
within a single PADD must aggregate the facilities within that PADD for
purposes of complying with the maximum benzene average standard. For
compliance with other average standards, importers will continue to
comply at the company level. Batches of imported fuel that are subject
to certification requirements must be certified separately for U.S.
Customs Service purposes at each U.S. port of entry.\93\
---------------------------------------------------------------------------

    \93\ See 19 CFR part 151, subpart C.
---------------------------------------------------------------------------

    Second, under part 80, current guidance allows gasoline classified
as ``American Goods Returned'' to the United States by the U.S. Customs
Service to not count as imported gasoline.\94\ As proposed, we are
finalizing language consistent with that guidance in part 1090,
provided all the following conditions are met:
---------------------------------------------------------------------------

    \94\ See ``Consolidated List of Reformulated Gasoline and Anti-
Dumping Questions and Answers: July 1, 1994 through November 10,
1997,'' EPA-420-R-03-009, July 2003.
---------------------------------------------------------------------------

     The gasoline was produced at a fuel manufacturing facility
located within the U.S. and has not been mixed with gasoline produced
at a fuel manufacturing facility located outside the U.S.
     The gasoline must be included in compliance calculations
by the producing manufacturer.
     All the gasoline that was exported must ultimately be
classified as American Goods Returned to the United States and none may
be used in a foreign country.
     No gasoline classified as American Goods Returned to the
United States may be combined with any gasoline produced at a foreign
fuel manufacturing facility prior to being imported into the U.S.
    We are not changing how importers are defined in part 1090 compared
with part 80.\95\ The importer under part 1090 would generally be the
importer of record under the Bureau of Customs and Border Protection
regulations. This would typically be the entity that owns

the fuel, fuel additive, or regulated blendstock when the import vessel
arrives at the U.S. port of entry, or the entity that owns the fuel,
fuel additive, or regulated blendstock after it has been discharged by
the import vessel into a shore tank.
---------------------------------------------------------------------------

    \95\ See 40 CFR 80.2(r).
---------------------------------------------------------------------------

B. Special Provisions for Importation by Rail or Truck

    We are finalizing as proposed the compliance options for meeting
testing requirements when importing fuels by either rail or truck.
These provisions allow importers via rail or truck to meet the sampling
and testing requirements based on test results from the supplier
instead of testing each batch after the fuel is imported, under certain
conditions.
    First, for gasoline, the truck or rail importer electing to use
supplier test results must meet 0.62 volume percent benzene content and
10 ppm sulfur content per-gallon maximum standards. This requirement is
identical to what is currently required under part 80.\96\
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    \96\ See 40 CFR 80.1349 and 80.1641. It should also be noted
that under part 1090 we are allowing these provisions to be used for
rail imports in addition to the currently allowed truck imports
under part 80. Under part 1090, diesel fuel is only subject to per-
gallon standards, so alternative standards to diesel fuel imported
via rail or truck are not necessary.
---------------------------------------------------------------------------

    Second, the importer must get documentation of test results from
the supplier for each batch of fuel. Testing for a given batch must
occur after the most recent delivery into the supplier's storage tank
and before transferring product to the railcar or truck.
    Third, the importer must conduct testing to verify test results
from each supplier, by collecting samples either once every 30 days or
every 50 rail or truckloads of fuel from a given supplier, whichever is
most frequent.
    We received several comments that suggested that our proposal to
allow added flexibility was forcing importers via truck and rail to
comply with more stringent per-gallon standards. This was not our
intent and we have revised the regulations to clarify that importers
that import via truck or rail have the option to sample and test each
batch of imported gasoline and comply with average benzene and sulfur
standards or rely on test results from the gasoline supplier and meet a
per-gallon standard. We address other comments related to imports by
truck and rail in Section 18 of the RTC document.

C. Special Provisions for Importation by Marine Vessel

    We are finalizing as proposed the provisions that specifically
address importation of fuels by marine vessels. These provisions are
generally the same as those addressed in the 2003 Q&A document.\97\
Under part 1090, separate certification is required at each import
facility, unless the fuel is transported by the same vessel making
multiple stops but does not pick up additional fuel. Consistent with
the current part 80 requirements, we are not allowing importers who
import by marine vessels to rely on testing from a foreign source given
our lack of jurisdiction generally. Additionally, testing may not be
based on samples collected after the fuel is off-loaded, unless certain
conditions are met that are designed to make sure the imported gasoline
meets all per-gallon standards and that compliance reports accurately
reflect the sulfur and benzene content of the imported fuel.
---------------------------------------------------------------------------

    \97\ See Section IX.C, ``Consolidated List of Reformulated
Gasoline and Anti-Dumping Questions and Answers: July 1, 1994
through November 10, 1997,'' EPA-420-R-03-009, July 2003.
---------------------------------------------------------------------------

    Under these provisions, different ship compartments would generally
be considered different batches of fuel. However, we are allowing for
the following exceptions. First, importers may treat the fuel in
different compartments of a ship as a single batch if they demonstrate
that the fuel is homogeneous across the compartments as required for
all composite samples. As is the case under part 80, importers must
demonstrate that results for homogeneity testing fall within the
specified range for the test method used(s) used to determine
homogeneity. Under the updated homogeneity testing procedures in part
1090, this should result in a decrease in the amount of analytical
testing needed to establish homogeneity for combining marine vessel
compartments compared to part 80. This decrease in testing is mostly a
result of the decrease in the number of fuel parameters for homogeneity
testing from as many as 11 under part 80 to two under part 1090. This
change would result in a substantial decrease in testing burden.
    Second, we will also accept the analysis of samples collected from
different ship compartments that are combined into a single volume-
weighted composite sample if the compartments are off-loaded into a
single shore tank, or if each individual vessel compartment is shown,
through sampling and testing, to meet all applicable standards.
    We received several comments suggesting edits and requesting
clarifications to the part 1090 marine vessel import provisions that we
have reflected in the final regulations as appropriate. We address
these comments in Section 18 of the RTC document.

D. Gasoline Treated as Blendstocks

    We are transferring part 80 provisions for gasoline treated as
blendstock (GTAB) to part 1090 largely unchanged. We are also
substantially reducing the number of parameters that are tested and
reported to EPA for GTAB. Our primary concern with GTAB has been to
ensure that off-spec gasoline imported into the U.S. is properly
blended to produce gasoline that meets applicable fuel quality
standards. When initially established under the RFG and Anti-dumping
programs, the GTAB provisions focused on the entire set of parameters
needed to run the Complex Model. Since compliance with EPA's fuel
quality standards is based on sampling and testing the finished fuel
and part 1090 no longer requires certification of batches of gasoline
using the Complex Model, we believe that the testing and reporting of
fuel parameters for GTAB is no longer necessary. However, volumes for
batches of GTAB must continue to be reported. Other provisions related
to GTAB are consistent with current part 80 requirements and published
guidance.
    In general, comments were supportive of this proposal. However, we
received some suggestions for clarification of the GTAB provisions that
we have reflected in the final regulations as appropriate. We address
these comments in Section 18 of the RTC document.

XII. Compliance and Enforcement Provisions and Attest Engagements

A. Compliance and Enforcement Provisions

    We are finalizing the compliance and enforcement provisions as
proposed with one exception. We are also finalizing lower sulfur and
benzene default values that will apply to sampling and testing
requirements violations for fuel content standards.
    As explained in the NPRM, the requirements for regulated parties to
accurately sample and test fuels are one of the lynchpins of our fuel
quality regulations. If regulated parties fail to properly sample and
test fuel, it makes it difficult for EPA and the public to know if the
fuel meets the applicable standards. Several commenters suggested that
the proposed levels, which were identical to the levels in part 80,
were too high. The commenters suggested that the default values had not
been updated in over 25 years and were not reflective of modern fuel
manufacturing. Several commenters

suggested default levels that were at or below EPA's regulatorily
specified levels. We believe that it would be inappropriate and
counterproductive to assume that fuels, fuel additives, and regulated
blendstocks met EPA's fuel quality standards if a party failed to
appropriately sample and test for compliance. Such levels would provide
a strong incentive for parties to forgo compliance sampling and testing
altogether, which would jeopardize fuel quality. Other commenters
suggested more modest reductions in the default values, but no
commenter provided compelling data to support alternative default
values.
    However, we acknowledge that fuels are made and distributed
differently today than they were when we promulgated the part 80
default values in the 1990s. Therefore, we have chosen to use the
sulfur and benzene levels specified in CAA section 211(k)(10)(B) for
summer (339 ppm sulfur) and winter (1.64 volume percent benzene)
baseline fuel, respectively.\98\ We believe these values represent
fuels prior to the promulgation of current EPA fuel quality standards,
which have controlled sulfur and benzene contents to their current
regulatory levels (10.00 ppm and 0.62 volume percent, respectively).
---------------------------------------------------------------------------

    \98\ We choose the summer baseline for sulfur as it was 1 ppm
higher (339 ppm for summer versus 338 ppm for winter) and the winter
baseline for benzene as it was 0.09 volume percent higher (1.64
volume percent for winter versus 1.53 volume percent for summer).
---------------------------------------------------------------------------

    The final rule provides that if a fuel, fuel additive or regulated
blendstock manufacturer fails to comply with the sampling and testing
requirements, the gasoline will be deemed to have the parameters in
Table XII.A-1 below, unless EPA, in its sole discretion, approves a
different value in writing. EPA may consider any relevant information
to determine whether a different value is appropriate.

           Table XII.A-1--Default Values for Fuel, Fuel Additive, and Regulated Blendstock Parameters
----------------------------------------------------------------------------------------------------------------
                                                                                Benzene value
                             Product                               Sulfur value       (volume        RVP value
                                                                       (ppm)         percent)          (psi)
----------------------------------------------------------------------------------------------------------------
Gasoline........................................................             339            1.64              11
PCG (by subtraction)............................................               0               0             n/a
Diesel Fuel.....................................................           1,000             n/a             n/a
ECA Marine Fuel.................................................           5,000             n/a             n/a
Fuel Additives..................................................             339             n/a             n/a
Regulated Blendstocks...........................................             339            1.64             n/a
----------------------------------------------------------------------------------------------------------------

    As mentioned above, the default values approximate uncontrolled
levels prior to promulgation of current EPA fuel quality standards and
create an additional incentive for fuel, fuel additive and regulated
blendstock producers to properly sample and test gasoline and ensure
that they will not benefit by underreporting the sulfur, benzene, or
RVP of gasoline that is not properly sampled or tested. For fuel
manufacturers that produce gasoline using the PCG by subtraction
approach, the default values for sulfur is 0 ppm and the default value
for benzene is 0 volume percent. This approach attributes all sulfur
and benzene to the added blendstock and provides incentives for a
blending manufacturer to appropriately sample and test the PCG.
    In addition to the comments received on default values, one
commenter asked for additional detail regarding how to inform EPA about
a failure to comply with the sampling and testing requirements and what
type of information EPA will consider when determining whether to
approve a value that is different than the default values. Regulated
parties should inform EPA of a failure to comply with the sampling and
testing requirements through EPA's eDisclosure portal.\99\
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    \99\ See https://www.epa.gov/compliance/epas-edisclosure.
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    The determination about whether to approve a request to use an
alternative value will be made on a case-by-case basis. EPA will
consider all relevant information in making this determination,
including but not limited to engineering analyses and results from
tests that do not meet the regulatory standards.
    We address comments related to the compliance and enforcement
provisions in more detail in Section 19 of the RTC document.

B. Attest Engagements

    Part 80 includes a requirement for gasoline refiners and importers
to engage auditors to review information reported to EPA. These annual
attest engagements allow EPA to more effectively ensure compliance with
regulatory requirements.
    We are transferring the various existing attest requirements in
part 80 to a single subpart in part 1090 (subpart S). We are removing
obsolete material, updating the language for improved clarity, and
making some minor adjustments and clarifications to improve the quality
and consistency of reported information.
    For instance, we have added a requirement for auditors to review
the fuel manufacturer's calculations showing that they comply with the
sulfur and benzene average standards. We note that EPA's Office of
Inspector General made certain findings and recommendations regarding
compliance with these standards as part of their review of the auditing
requirements under part 80.\100\ One recommendation was to modify the
attest engagement regulations to require that auditors verify
compliance calculations for gasoline manufacturers to help ensure that
the benzene average standard was met. We believe the revised attest
engagement provisions are consistent with this recommendation and will
provide better oversight of the gasoline sulfur and benzene average
standards.
---------------------------------------------------------------------------

    \100\ See ``Improved Data and EPA Oversight Are Needed to Assure
Compliance With the Standards for Benzene Content in Gasoline,''
Report No. 17-P-0249, June 2017.
---------------------------------------------------------------------------

    We are also codifying the existing attest requirements spelled out
in the 2003 Q&A document.\101\ We are adopting these requirements for
both CG and RFG. The most significant new provision is the requirement
for auditors to review PBMS qualification and SQC records related to
the sampling and testing requirements for gasoline on an annual basis.
We require a relatively straightforward review by auditors of whether
labs used to test gasoline for

compliance have records demonstrating that their methods have been
qualified under the PBMS qualification requirements and that the lab is
maintaining SQC records. It is worth noting that we are not requiring
auditors to interpret this information as auditors may lack the
appropriate technical expertise to interpret lab data for conformance
with PBMS and SQC requirements. (Instead, as discussed in Section X.B,
we require that the independent surveyor review this type of
information under the NSTOP.) We do not believe that this simple review
will greatly increase the burden associated with the annual attest
audits. We believe this laboratory record review will help ensure that
labs used for testing fuels for compliance are doing so consistent with
EPA's quality control requirements helping to ensure a level playing
field and program integrity.
---------------------------------------------------------------------------

    \101\ See ``Consolidated List of Reformulated Gasoline and Anti-
Dumping Questions and Answers: July 1, 1994 through November 10,
1997,'' EPA-420-R-03-009, July 2003.
---------------------------------------------------------------------------

    We received several comments that suggested edits to the proposed
regulations and asked for clarification on the various attest
engagement provisions that we have reflected in the final regulations
as appropriate. We address these comments in Section 20 of the RTC
document.

C. RVP Test Enforcement Tolerance

    Under part 80, EPA recognizes and allows a 0.3 psi downstream
enforcement test tolerance over applicable RVP standards for RVP test
results.\102\ This test tolerance was based on RVP testing variability
and the reproducibility of the test methods at the time the RVP
standards were established. Under this approach, we rely on test
results from locations downstream of fuel manufacturing facilities to
bring enforcement actions against downstream parties only if the
downstream test results are more than 0.3 psi above the applicable
standard. Although any sample that is over the standard is a violation,
we generally do not bring enforcement actions against a downstream
party if the sample it collects is over the standard but within the 0.3
psi enforcement test tolerance, as long as there is no reason to
believe that the downstream party caused the gasoline to exceed the
standard. Gasoline manufacturers may not use the tolerance to
effectively raise the applicable standard. If the gasoline
manufacturer's test results show the gasoline exceeds the RVP standard,
then the gasoline is in violation regardless of whether or not the RVP
test result is within the tolerance.
---------------------------------------------------------------------------

    \102\ See 55 FR 23695 (June 11, 1990), 59 FR 7764 (February 16,
1994), and ``Consolidated List of Reformulated Gasoline and Anti-
Dumping Questions and Answers: July 1, 1994 through November 10,
1997,'' EPA-420-R-03-009, July 2003.
---------------------------------------------------------------------------

    We are continuing this same RVP enforcement test tolerance policy
to enforce the gasoline volatility standards in part 1090. Under part
1090, the 0.3-psi RVP tolerance will apply to both summer CG and summer
RFG. However, as before, we may change this enforcement policy at any
time, including adopting new tolerances as data on test methods are
developed, as technology changes, or as further information becomes
available concerning the precision of RVP test methods.

XIII. Other Requirements and Provisions

A. Requirements for Independent Parties

    We are finalizing requirements for third parties performing actions
authorized under part 1090 regarding their independence from the
regulated parties who engage them and their technical qualifications.
These requirements are consistent with part 80 independence and
technical competency requirements for independent third-parties. We
believe the requirements will preserve and strengthen the integrity of
our independent third-party verification programs.
    We remain concerned about the potential for conflicts of interest
between the independent third-parties that monitor compliance on behalf
of EPA and the regulated entities who engage them. Therefore, we are
maintaining the same independence requirements for third-parties as
currently used in part 80. In addition, since proposing the original
independence requirements for third-parties under the RFG and Anti-
dumping programs in the 1990s, we have seen that third-parties often
employ contractors or subcontractors to fulfill third-party oversight
requirements. These contractors or subcontractors should also be free
from conflicts of interest from regulated parties for whom services are
performed. Therefore, we are clarifying that independence requirements
apply not only for the third parties and their employees, but also for
any contractors and subcontractors.
    Similar to part 80, we are imposing restrictions on both employment
history and financial interest. We proposed that independent third
parties would be required to ensure that their employees, contractors,
and subcontractors had not worked for the regulated party that hired
that third party for any amount of time over the previous three years.
    We are also finalizing a limitation imposed on the independent
third party's firm or organization as to the proportion of revenue it
can generate from any single regulated party. We believe this furthers
our goal of independent third-party oversight and increases the
trustworthiness of the program's results. We requested comment on these
independence requirements and their impacts on the independent third
parties, as well as the anticipated effectiveness of these provisions
to increase reliability in our third-party oversight program. We have
adopted some of the suggested changes and have addressed these comments
in Section 4 of the RTC document.
    Part 1090 also includes requirements on the technical
qualifications of the independent third parties. We have employed
similar requirements under part 80 and have used these requirements in
other cases where technical competency is important to conduct
regulated activities for a regulated party.\103\ These provisions
ensure that program oversight is being conducted by parties with the
requisite technical capabilities. However, we do not currently require
this demonstration under part 80 for in-use surveys. Under part 1090,
we are requiring that the independent surveyors employ personnel with
expertise in the areas of petroleum marketing, sampling and testing
fuels at retail stations, and survey design. Technical competency
requirements for attest engagement auditors and independent
laboratories that qualify alternative test procedures under PBMS are
unchanged in part 1090.
---------------------------------------------------------------------------

    \103\ See 40 CFR 80.92 and 80.1469.
---------------------------------------------------------------------------

    Several commenters suggested that the technical qualification
requirements were too restrictive. First, commenters suggested that the
requirement that independent parties could not provide services that
require independence until 3 years after the point when the independent
party was last employed by the regulated party was too long and would
result in a significant constraint on the availability of technically
competent auditors and surveyors. Based on these comments, we reduced
the 3-year period to a 1-year period as commenters suggested. Second,
one commenter suggested that the technical competency requirement for a
lab to qualify non-VCSB methods was too strict and could not be
fulfilled by a single person. We are finalizing these provisions as
proposed since we believe that a laboratory that is going to qualify

non-VCSB methods must have appropriate personnel to evaluate the new
method. We have addressed these comments in Section 4 of the RTC
document.

B. Labeling

    Part 1090 includes provisions that apply specifically to retailers
and WPCs, consolidating the various provisions formerly scattered
throughout part 80 (including the whole set of fuel dispenser labeling
requirements) into one subpart (subpart P) with only minor changes
(including removing several obsolete provisions from part 80). We are
finalizing, as proposed, the description of the E15 label by replacing
descriptive paragraphs with a graphic example of the E15 pump label. We
believe these changes will make the regulations easier to identify and
follow for retailers and WPCs.
    We are finalizing minor modifications to the existing label
language for heating oil by removing the now obsolete label language
identifying that the heating oil contains greater than 500 ppm
sulfur.\104\ Most heating oil sold today meets state 15 ppm sulfur
standards, and we believe that it is now misleading and inappropriate
to require that heating oil dispensers label their product as having
greater than 500 ppm sulfur. To minimize burden on retailers, we are
allowing retailers to continue to use existing labels to satisfy the
part 1090 labeling requirements until such time as the existing part 80
label needs replacement.
---------------------------------------------------------------------------

    \104\ See 40 CFR 80.573.
---------------------------------------------------------------------------

    During the rule development process, we received feedback from
stakeholders suggesting that the ECA marine fuel labels were no longer
necessary due to the way that ECA marine fuel is sold and dispensed for
use in Category 3 marine vessels. However, if there were situations
where ECA marine fuel is co-dispensed with other fuels, a label might
still help avoid the misfueling of diesel engines that require the use
of ULSD with ECA marine fuel. We proposed to maintain the existing part
80 label requirement but requested comment on whether maintaining these
labels is necessary or whether we could limit the use of the label to
only situations where ECA marine fuel is co-dispensed with other fuels.
We received no comments on this question, so we are maintaining the ECA
marine fuel labels that are currently required under part 80.

C. Refueling Hardware Requirements for Dispensing Facilities and Motor
Vehicles

    As described in the preceding section, part 1090 includes a subpart
devoted to requirements for retailers and WPCs. This subpart also
describes requirements related to refueling hardware.
    The updated nozzle requirements for refueling motor vehicles are
aligned with the requirements adopted under part 80. There is one
noteworthy adjustment. We identify nozzle specifications only in
millimeters. The parallel metric and English units in part 80 are
nearly identical, but this nevertheless creates two separate sets of
requirements, which is contrary to the objective of standardizing
hardware. The specifications in part 80 also include a level of
precision that is greater than is needed to properly identify a
standard configuration. The single set of updated specifications,
including rounding, are consistent with the specifications in part 80,
so the updated nozzle specifications should not cause any existing
hardware to be noncompliant, and any existing blueprints for producing
nozzles do not need to be modified.
    Similar nozzle requirements apply for dispensing gasoline into
marine vessels. We are similarly adopting a singular set of nozzle-
geometry specifications in millimeters in a way that is aligned with
the specifications as originally adopted. We are also concluding the
allowed phase-in of these nozzle-geometry specifications. As originally
adopted, the nozzle requirements applied as of January 1, 2009, to new
installations and to new nozzles used to repair or replace damaged
dispensing equipment. Based on industry feedback, the market has now
transitioned, so there is no need for our regulations to continue to
allow non-standard nozzles. If there are any remaining nozzles for
marine refueling that do not meet specifications, we now require that
they be replaced with a nozzle that meets the standardized
configuration. This requirement applies January 1, 2021, when part 1090
becomes effective.
    Part 80 additionally specifies a standardized geometry for filler
necks in light-duty and heavy-duty motor vehicles to correspond with
the nozzle geometry specifications. We proposed to move these vehicle-
based requirements to 40 CFR parts 86 and 1037, which describe
standards and other requirements for light-duty and heavy-duty motor
vehicles. However, based on a comment received, we are deferring action
on this item. As we are not taking any final action on that provision
in this action, the regulations at 40 CFR 80.24 remain unchanged. We
intend to revisit this issue in a future rulemaking related to vehicle
standards.

D. Previously Certified Gasoline (PCG)

    We are largely maintaining the existing part 80 provisions for how
blending manufacturers may make new batches of gasoline from PCG and
blendstocks.\105\ In the Tier 3 rule, we finalized changes to improve
the consistency of the PCG provisions across part 80 programs; \106\
however, we maintained separate PCG provisions for each part 80
gasoline program. In part 1090 we are consolidating these provisions
into a single set of PCG provisions that maintain both options used in
part 80: (1) PCG by subtraction; and (2) PCG by addition.\107\ Other
changes are minor and designed to improve clarity and consistency of
the PCG provisions in part 1090. Other provisions related to blending
certified butane or certified pentane are discussed in Section V.A.3.
---------------------------------------------------------------------------

    \105\ The purpose of allowing parties to make new batches of
gasoline using PCG is to provide flexibility for parties making new
fuels to accommodate market demands while ensuring that the fuel
quality standards are met. The provisions are designed to ensure
that the new batch meets gasoline per-gallon standards and that the
blending manufacturer does not increase the average sulfur and
benzene levels in the national gasoline pool.
    \106\ See 79 FR 23575-23576 (April 28, 2014).
    \107\ In PCG by subtraction, a blending manufacturer determines
the regulated fuel parameters of the PCG and the new batch to
quantify the sulfur and benzene levels of added blendstocks for
making the new fuel. In PCG by addition, a blending manufacturer
directly measures the parameters of added blendstocks to quantify
the sulfur and benzene levels. In both cases, the new fuel has to
meet per-gallon specifications for gasoline and blending
manufacturers will need to sample and test for sulfur year-round and
for RVP in the summer.
---------------------------------------------------------------------------

    We received several comments related mostly to how to address
various scenarios where blendstocks are added into PCG that has been
identified for oxygenate blending by the original PCG manufacturer. For
example, commenters requested clarification on whether a party that
adds blendstock to PCG must account for the fact that the PCG was
intended to have oxygenate added to it. In response to these comments,
we are modifying the PCG provisions to ensure that oxygenate is
accounted for properly.
    Several commenters also suggested edits and clarifications to the
part 1090 regulations and have made edits to the regulations where
appropriate to address these comments. We address these comments in
Section 21 of the RTC document.

E. Transmix and Pipeline Interface Provisions

    With few exceptions, we are finalizing the proposed requirements
under part 1090 for transmix processors that largely mirror what we
require under part 80. In part 1090 we are consolidating and
simplifying the flexibilities provided to fuel manufacturers that use
transmix to produce gasoline and diesel fuel, and are aligning the
requirements applicable to these parties to the requirements applicable
to other fuel manufacturers under part 1090.\108\ Some of the part 80
regulations characterize the requirements for transmix processors and
transmix blenders as alternative compliance mechanisms. For instance,
the gasoline sulfur regulations state that ``[t]ransmix processors and
transmix blenders may comply with [specified] sampling and testing
requirements and standards instead of the sampling and testing
requirements and standards otherwise applicable to a refiner under this
subpart O.'' \109\ The part 1090 regulations set forth specific
requirements for transmix processors and transmix blenders because we
believe that virtually all transmix processors and blenders are using
the alternative approaches set forth in part 80, and because we believe
that it would be overly complex for transmix processors and blenders to
comply with the requirements that apply to other fuel manufacturers.
---------------------------------------------------------------------------

    \108\ Refiners that produce gasoline and diesel fuel by
processing crude oil must not use the provisions that apply to
transmix processors and are subject to all requirements that apply
to a fuel manufacturer.
    \109\ See 40 CFR 80.1607.
---------------------------------------------------------------------------

1. Clarifying and Consolidating Requirements Relating to Transmix and
Pipeline Interface
    Provisions related to the treatment of transmix are currently
located in various sections in part 80.\110\ To improve clarity, we
have consolidated most of the special provisions related to the
treatment of transmix into a single subpart in part 1090 (subpart F).
We also incorporated the definitions of transmix and pipeline interface
into the definitions section of part 1090. These definitions are
currently imbedded in part 80 in a regulatory section that pertains to
the treatment of interface and transmix.\111\
---------------------------------------------------------------------------

    \110\ See 40 CFR 80.84, 80.213, 80.513, 80.840, and 80.1607.
    \111\ See 40 CFR 80.84.
---------------------------------------------------------------------------

2. Blending Transmix Into Previously Certified Gasoline
    In part 1090 we made a minor change to the requirements that apply
to parties that blend transmix into PCG.\112\ When the quality
assurance program required of a transmix blender indicates that the
gasoline does not comply with EPA standards, blenders that use a
computer controlled in-line blending system were temporarily required
under part 80 to conduct more frequent sampling and testing. We changed
this requirement so that no more than one sample per day may be used to
demonstrate compliance with this increased testing requirement. This
change in part 1090 will ensure that the required increase in sampling
and testing frequency fulfills the intended purpose of verifying that
the issue(s) that caused the violation have been resolved.
---------------------------------------------------------------------------

    \112\ Industry minimum flash point specifications in ASTM D975
prevent the blending of transmix into diesel fuel. Hence, there is
not a need for regulatory provisions regarding blending transmix
into previously certified diesel fuel.
---------------------------------------------------------------------------

3. Gasoline Produced From Transmix Gasoline Product
    As proposed, we are consolidating the different RFG and CG
provisions that apply to transmix processors into one set of provisions
that largely mirrors the part 80 transmix provisions. Transmix gasoline
product, or TGP, is the gasoline blendstock that is produced when
transmix is separated into blendstocks at a transmix processing
facility. The part 1090 regulations require transmix processors and
blending manufacturers that produce gasoline with TGP to exclude the
volume of TGP and PCG used to produce gasoline from their annual
compliance calculations for the sulfur and benzene average standards.
Parties that produce gasoline with TGP and other blendstocks must
follow the PCG procedures to account for the sulfur and benzene levels
of the added blendstocks for demonstrating compliance with annual
average sulfur and benzene standards. Transmix processors and blending
manufacturers that only produce gasoline from TGP or TGP and PCG are
deemed to be in compliance with the sulfur and benzene average
standards. In all cases, fuel manufacturers that produce gasoline using
TGP must meet per-gallon sulfur and RVP (in the summer) standards for
the resultant gasoline and make sure that the gasoline they produce
meets the substantially similar requirements of the CAA. If transmix
processors can demonstrate that the transmix and any blendstock they
use to produce gasoline contain no oxygenate, they are not be required
to test the gasoline they produce for oxygenate content.
    Based on suggestions from commenters, we are also finalizing
provisions that will allow for TGP to be transferred from a transmix
processor to another fuel manufacturer to be used to produce gasoline.
The transmix processor will use a PTD that designates the product as
TGP and note that it is not suitable for use as gasoline. In such cases
where TGP is blended to produce gasoline, the TGP is treated as PCG
(i.e., the blending manufacturer must take steps to ensure that the
sulfur and benzene content from the TGP is excluded from their average
standard compliance demonstrations).
4. 500 ppm LM Diesel Fuel Produced From Transmix
    We are finalizing as proposed the minor modifications to the
regulatory provisions that allow transmix processors to produce 500 ppm
LM diesel fuel for use in locomotive and marine engines that do not
require the use of ULSD, with one exception. One commenter pointed out
that since part 1090 requires all volume measurements to be temperature
adjusted, thermal expansion should not result in differences between
the volume of 500 ppm LM diesel fuel received versus the volume
delivered and used on a compliance period basis. We agree with this
comment and removed this as an allowable justification for volume
differences.
5. Streamlining the Requirements for Pipeline Interface That Is Not
Transmix
    We are finalizing the regulatory provisions that allow pipeline
operators to cut pipeline interface from batches of RFG and CG that are
shipped adjacent to each other by pipeline into either or both these
gasoline batches, with fewer limitations than were imposed under part
80. During the winter months there are no restrictions relating to how
operators cut pipeline gasoline interface. During the summer season
pipeline operators may not cut pipeline interface from two batches of
gasoline subject to different RVP standards that are shipped adjacent
to each other by pipeline into the gasoline batch that is subject to
the more stringent RVP standard. For example, pipeline operators may
not cut pipeline interface from a batch of RFG shipped adjacent to a
batch of CG into the batch of RFG.

F. Gasoline Deposit Control

1. Overview
    We are finalizing streamlined and updated regulations for gasoline
deposit control. Section 211(l) of the CAA requires EPA to establish
specifications for additives to prevent the accumulation of deposits in
engines and fuel supply systems and that all gasoline

contain such additives. In response to this requirement, EPA's gasoline
deposit control (detergent) program was finalized in July 1996 and
became effective in July 1997.\113\ The detergent program requires that
all gasoline, including the gasoline blend component of E85, contain a
detergent that satisfies EPA deposit control requirements before being
distributed from a petroleum terminal. Terminal operators are required
to prepare and keep volumetric accounting reconciliation (VAR) records
to demonstrate that a sufficient volume of detergent was added to the
gasoline they distribute for each accounting period.\114\
---------------------------------------------------------------------------

    \113\ See 61 FR 35310 (July 5, 1996).
    \114\ Under part 80, this period can be up to 30 days. Part 1090
does not change this period.
---------------------------------------------------------------------------

    Based on a review of emissions test data on circa 1990 vehicles and
information on the levels of detergent use absent a federal detergency
requirement, we estimated that the detergent program would result in
roughly a 1 percent reduction in hydrocarbon and carbon monoxide
emissions, a 2 percent reduction in NOX emissions, and a
0.06 percent improvement in fuel economy on average from the gasoline
vehicle fleet at the time.\115\ Given the considerable changes to
vehicle technology and to gasoline composition since 1990 that may
affect both deposit formation and its impact on emissions, and given
the lack of emissions test data on the effects of deposits on emissions
from modern vehicles, we are unable to quantify the emissions benefits
of different levels of deposit control stringency provided by the
detergent program today.
---------------------------------------------------------------------------

    \115\ Regulatory Impact Analysis and Regulatory Flexibility
Analysis for the Detergent Certification Program, June 1996.
Regulatory Impact Analysis and Regulatory Flexibility Analysis for
the Interim Detergent Registration Program and Expected Detergent
Certification Program, August 1995.
---------------------------------------------------------------------------

    At the same time, there is considerable cost and effort associated
with continuing to implement the detergent program. Consequently, we
are streamlining the program to the extent possible to minimize its
cost. Specifically, we are: (1) Eliminating the requirement that a
detergent that is demonstrated to control intake valve deposits must
also be tested to demonstrate the ability to control fuel injector
deposits; (2) easing the adoption of updated deposit control test
procedures when they become available; (3) simplifying the process for
registration and certification of detergents and the demonstration of
compliance by detergent blenders; (4) removing expired and unused
provisions; and (5) removing the requirement that the gasoline portion
of E85 must contain a certified detergent. In response to several
comments, we are finalizing testing requirements for new detergents
consistent with part 80 requirements that will maintain the
specifications for detergents, while updating them to accommodate new
circumstances discussed in this section. The following sections detail
the changes we are finalizing.
2. Eliminating the Port Fuel Injector Deposit Control Testing
Requirement
    We are finalizing our proposal to eliminate the requirement that
detergents be tested to demonstrate the ability to control port fuel
injector deposits. We received several comments in support of this
proposal. This change will substantially decrease the burden of
introducing new detergents while maintaining the benefits of the
detergent program.
    Under part 80, we required separate tests to demonstrate the
ability of a detergent to control port fuel injector deposits and
intake valve deposits. Input from stakeholders during the rule
development process and from comments supports the conclusion that
detergents that are capable of controlling intake valve deposits are
inherently capable of controlling port fuel injector deposits.\116\
This conclusion is also supported by the elimination of a port fuel
injector testing requirement in the industry-based Top Tier detergency
program. The Top Tier program was established by industry based on the
premise that a superior level of deposit control was needed for today's
vehicles than that provided by EPA requirements. Further support is
evidenced by the lack of industry activity to have a separate test for
port fuel injector deposits. The port fuel injector deposit control
test required by EPA is based on the ASTM D5598 fuel injector deposit
control test procedure that used a 1985-1987 Chrysler 2.2L
vehicle.\117\ The fuel injector technology used in these old test
vehicles is no longer representative of technology used in the current
vehicle fleet. Current industry efforts are focused on developing an
updated intake valve deposit (IVD) control test procedure (discussed in
the next section) and the evaluation of deposit control in gasoline
direct injection engines that represent an increasing share of the new
vehicle fleet.
---------------------------------------------------------------------------

    \116\ Coordinating Research Council (CRC) Annual Report,
September 2018. The CRC Gasoline Engine Deposit Task Group, CRC
Project No. CM-136, consists of members of the auto, oil, and
additive industries. The objectives of this group include developing
test procedures to evaluate fuel and fuel additive contributions to
intake valve deposits, and injector deposits in port fuel injection
and direct injection engines.
    \117\ The detergent program requires demonstration of no more
than 5 percent flow restriction on any one port fuel injector when
tested in accordance with ASTM D5598-94.
---------------------------------------------------------------------------

3. Amending the Intake Valve Deposit Control Test Procedures
    Like the port fuel injector test procedure, the intake valve test
procedure in our regulations is antiquated and of questionable
relevance to the in-use fleet today. New detergents under part 80 are
tested using the EPA ASTM D5500 BMW-based deposit control test
procedure (``EPA ASTM D5500 procedure''), which uses a 1985 BMW 318i
vehicle. This vehicle was accepted as representative of technology in
the vehicle fleet when the detergent program was finalized in 1996.
However, this 35-year-old vehicle is no longer representative of the
technology used in modern vehicles.\118\ It is also increasingly
difficult for emissions laboratories to perform the EPA ASTM D5500
procedure due to the deterioration of the aged test vehicles and the
lack of replacement parts. Consequently, CRC is currently developing an
updated deposit control test procedure.\119\
---------------------------------------------------------------------------

    \118\ CRC Gasoline Engine Deposit Task Group, CRC Project No.
CM-136, CRC Annual Report, September 2018.
    \119\ Id.
---------------------------------------------------------------------------

    In addition, the test fuel specified by EPA for use in the ASTM
D5500 procedure is no longer representative of current gasoline. The
composition of the requisite test fuel is specified to assure a 65th
percentile concentration of gasoline parameters that affect deposit
formation based on 1990 gasoline survey data.\120\ The composition of
gasoline in the U.S. has changed significantly since 1990 due to EPA
fuel quality requirements and changes in refinery operations due to
market shifts. These changes to gasoline composition have resulted in
current in-use gasoline having a different deposit-forming tendency
compared to the 1990 gasoline on which the test fuel specifications are
based. Parties that formulate detergent test fuels stated that the more
stringent gasoline sulfur requirements were making it impossible to
make the sufficiently stringent test fuels using only normal refinery
blendstocks or

finished gasoline.\121\ As a result, we issued guidance that a sulfur
doping compound could be used to meet the minimum test fuel sulfur
specification for test purposes, even though such fuels no longer exist
in-use.\122\
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    \120\ 65th percentile concentrations are specified for sulfur,
aromatics, T90 distillation, and olefins. Under the national generic
detergent certification option, 10 volume percent ethanol must be
blended into a base fuel meeting 65th percentile concentrations for
sulfur, aromatics, T90 distillation, and olefins.
    \121\ See 65 FR 6698 (February 10, 2000) and 82 FR 23414 (April
28, 2014).
    \122\ The approved sulfur doping compound is di-tertiary di-
butyl sulfide.
---------------------------------------------------------------------------

    Consequently, we proposed to disallow new detergents that had
established a lowest additive concentration (LAC) through the EPA ASTM
D5500 procedure. We proposed that new detergent deposit control testing
could be conducted using the Top Tier program or California's deposit
control program.\123\ We also proposed that existing detergent
certifications based on the EPA ASTM D5500 procedure would remain valid
indefinitely while new testing procedures could be adopted with EPA-
approval.
---------------------------------------------------------------------------

    \123\ See Title 13, California Code of Regulations, Section
2257.
---------------------------------------------------------------------------

    Several commenters suggested that the proposal to disallow new
additives tested on the EPA ASTM D5500 procedure would constitute a de
facto change in the stringency of the part 80 deposit control
standards, which would result in a substantial increase in costs to
industry. While we believe that the commenters may have overstated the
expected costs, especially considering that we proposed that previously
tested detergents under EPA ASTM D5500 would remain valid indefinitely,
we agree that the removal of the option to test new detergents using
the EPA ASTM D5500 procedure could result in a slight increase in the
stringency and cost for new deposit control formulations. As such, we
will continue to allow the EPA ASTM D5500 procedure to be used to
certify new detergent formulations.
4. Expanding the Applicability of Detergent Certifications Based on
Compliance With the California Deposit Control Regulations
    Under the part 80 regulations, a detergent certification based on
compliance with the California's deposit control regulations may be
used to demonstrate compliance with EPA's deposit control requirements
only for gasoline that meets the California's compositional
requirements and if the detergent is added in a terminal located in the
California. This limitation was based on concerns that detergents
certified using test fuels representative of California gasoline might
not be capable of controlling deposits in gasoline that does not meet
California requirements. When EPA's detergent program was finalized in
1996, the composition of gasoline that complies with California
standards differed substantially from gasoline that met EPA's
requirements.\124\ Through subsequent rulemakings, expansion of E10
nationwide, and other market changes, the composition of gasoline made
for use outside of California is much closer to that required by
California. Therefore, we believe that detergents certified under
California's requirements should be capable of controlling deposits in
gasoline that meets EPA's standards. Further support for this
assessment is that California requires that a detergent limit the
accumulation of intake valve deposits to less than 50 mg per valve
whereas EPA's program allows the accumulation of up to 100 mg per valve
using the EPA ASTM D5500 procedure. Consequently, we proposed that a
detergent certified under California's program could be used to meet
EPA's deposit control requirements in all gasoline. Comments received
were supportive, as long as we continued to allow for new detergent
testing to be done on the EPA ASTM D5500 procedure. As such, we are
finalizing the proposal to allow California detergent testing to be
used to satisfy EPA detergent testing requirements.
---------------------------------------------------------------------------

    \124\ See 61 FR 35326-27 (July 5, 1996).
---------------------------------------------------------------------------

5. Easing the Adoption of Future Updates To Deposit Control Test
Procedures
    We are finalizing provisions that allow for an administrative
process to approve new deposit control test protocols in a streamlined
manner. In the proposal, we co-proposed two approaches regarding the
process of updating deposit control test procedures for the future and
how regulated parties would reference the specifications for these
procedures. The primary approach would be through an administrative
process, and the alternative approach would be through a traditional
rulemaking process.
    We are finalizing the primary approach, which allows for deposit
control test procedures accepted by EPA to be specified in a publicly
available document that could be updated as EPA accepts new
procedures.\125\ The use of this streamlined process will greatly
facilitate keeping the requirements consistent with current industry
practice. For example, the current need for a notice-and-comment
rulemaking to amend test procedures specified in the CFR has caused the
detergent program to lag far behind in reflecting current industry
practice regarding the test fuels used for the ASTM D6201 procedure.
Such noncontroversial changes could be made much more been readily
through a streamlined administrative process.
---------------------------------------------------------------------------

    \125\ It is worth noting that the test protocols will be
compared to a baseline established by the EPA ASTM D5500 procedure
using the part 80 test fuels. This baseline was adopted since that
was the baseline for determining the deposit control specifications
under CAA section 211(l).
---------------------------------------------------------------------------

    Under this approach, stakeholders may petition EPA to adopt changes
to the deposit control test procedures previously accepted by EPA
(e.g., when an update to an existing test procedure is incorporated
into an existing test method). We will then conduct outreach with
stakeholders to assess whether there is sufficiently broad support for
the proposed change. If we determine that this is the case and the
suggested change meets applicable regulatory requirements, we will
publish on our web page and by direct communications with stakeholders
that we have accepted the change. We may also periodically update the
detergent regulations in the CFR to reflect accepted alternatives.
    Comments received were supportive of EPA providing added
flexibility to approve new detergent testing protocols via an
administrative process. Therefore, we are finalizing the primary
approach as proposed.
6. Removing Expired and Unused Provisions
    We are finalizing the removal of expired and unused provisions in
the detergent program to make the detergent regulations more
accessible, understandable, and to eliminate the ongoing costs of
maintaining these provisions.
    The detergent program in part 80 includes provisions allowing a
detergent to be certified for use in different gasoline pools using
test fuels that have specifications representative of the deposit-
forming characteristics of the discrete pools. Under the ``national-
generic'' certification option, a detergent can be certified for use in
all gasoline containing any approved oxygenate. Other options allow a
detergent to be certified for use only within one of the five Petroleum
Administration for Defense Districts (PADDs), in regular or premium
gasoline, in oxygenated or nonoxygenated gasoline, in gasoline
containing a specific oxygenate other than ethanol, or in a segregated
gasoline pool defined by the certification applicant.\126\ We also
accept detergent certifications under the California program in lieu of
meeting our requirements. Since all applications for

detergent certification to date other than those based on the
California program have been under the national-generic option we are
removing the other options. We believe that it is reasonable to
conclude that these options do not provide a meaningful flexibility to
industry given that they have remained unused since the detergent
program's inception in 1996. Under part 1090, the detergent program
will allow all detergents to be used in all gasoline containing any
approved oxygenate, as is the case today under the national-generic
detergent certification option. Detergent certifications under
California's program will also remain valid.\127\
---------------------------------------------------------------------------

    \126\ See 40 CFR 80.163.
    \127\ See Section XIII.F.4 regarding the expansion to the
applicability of California-based detergent certifications.
---------------------------------------------------------------------------

    We are also removing regulatory provisions associated with the
interim detergent program that were superseded by the detergent program
in 1996.\128\ Comments received on this aspect of the proposal were
supportive, and we are therefore finalizing the removal of expired and
unused provisions as proposed.
---------------------------------------------------------------------------

    \128\ See 40 CFR 80.141 through 80.156.
---------------------------------------------------------------------------

7. Streamlining the Detergent Registration Process
    Detergent manufacturers are currently required under part 80 to
submit detergent certification test data and detergent composition
information for evaluation and approval by EPA prior to the detergent
being used to comply with EPA's deposit control requirements. To speed
up the introduction of new detergents and to reduce the burden of
detergent certification, we are allowing detergent manufacturers to
begin marketing a detergent once the manufacturer has satisfied EPA
testing requirements without the need for a prior submission of the
data to EPA and approval by EPA. Under this approach, detergent
manufacturers will still be required to submit data that demonstrates
compliance with the deposit control testing requirements upon request
by EPA.
    Composition information is required for all additives that are
registered for use in gasoline under part 79. Additional composition
information is also required for detergents to be evaluated for deposit
control efficacy under part 80, including the LAC established by
detergent deposit control testing. In lieu of requiring a separate
submission of this additional information under part 1090, we are
requiring it to be submitted with a detergent's part 79 additive
registration. Comments on this aspect of the proposal were supportive
and we are finalizing the provisions as proposed.
8. Simplifying the Detergent Volumetric Accounting Reconciliation
Requirements
    Under parts 80, detergent blenders must maintain periodic VAR
records to demonstrate that they added a volume of detergent to the
gasoline they distribute at least as great as the LAC associated with
the certification for the detergent that is used; this is not changing
under part 1090. However, under part 80, the VAR provisions require
that detergent blenders compile a separate record for each monthly VAR
period in a standard format. During the rule development process,
detergent blenders stated that the necessary VAR records are kept in
electronic form as standard business practice, but that compiling such
information into a standard format as required by EPA for each VAR
period represented a significant burden. To reduce the burden, we
proposed to remove the requirement that a VAR report be prepared for
each accounting period. This would also eliminate the burden on
industry of requesting and on EPA of issuing a waiver from this
requirement during emergency situations to ensure the availability of
gasoline. We also proposed to require that detergent blenders keep the
necessary records to demonstrate compliance with detergent LAC
requirements for each blending facility in whatever form that is their
common practice. The same one calendar month or lesser accounting
period would still apply. All comments received on the proposal to
simplify VAR requirements were supportive, and we are finalizing these
provisions as proposed.
9. Removing the Requirement That the Gasoline Portion of E85 Contain
Detergent
    We are finalizing an exemption to the deposit control requirement
for the gasoline portion of E85. The part 80 deposit control
regulations require that the gasoline portion of E85 must contain a
detergent additive at or above the LAC.\129\ The addition of ethanol to
gasoline, with detergent at the LAC, to produce E85 results in a
detergent concentration that is lower than the LAC due to the increased
dilution from the additional ethanol. We proposed to remove this
requirement in the 2016 Renewables Enhancement and Growth Support
(REGS) rule.\130\
---------------------------------------------------------------------------

    \129\ See 40 CFR 80.161(a)(3).
    \130\ See 81 FR 80828 (November 16, 2016).
---------------------------------------------------------------------------

    In the REGS rule, we noted that we were not aware of data on the
deposit control needs of flex-fuel vehicles (FFVs) that operate on E85.
We also related input from stakeholders that as additive concentration
diminishes due to dilution with ethanol in making E85, there is a point
where the presence of a detergent ceases to be beneficial and can
instead contribute to deposit formation. We also noted that certain
detergents may not be completely soluble in high ethanol content
blends. Comments on the REGS rule were supportive of removing the
requirement that the gasoline portion of E85 contain detergents.
    In the NPRM, we explained that this action is allowable because CAA
section 211(l) only refers to deposit control additives for gasoline.
E85 is not gasoline because only fuels composed of at least 50 volume
percent clear gasoline are included in the gasoline family under part
79 and E85 contains at least 51 volume percent ethanol.\131\ All
comments received on this aspect of the proposal were supportive and we
are finalizing these provisions as proposed.
---------------------------------------------------------------------------

    \131\ See 40 CFR 79.56(e)(1)(i) regarding the gasoline family
definition. See ASTM D5798 regarding the ethanol content of E85.
---------------------------------------------------------------------------

G. In-Line Blending Waivers

    Under part 1090, we will continue the policy of approving in-line
blending waivers. These waivers allow refiners to certify batches using
in-line blending equipment instead of the more typical batch
certification procedures. Under part 80, we have two different sets of
requirements for in-line blending for RFG and CG that we have
consolidated into a single set of requirements for in-line blending in
part 1090. For RFG manufacturers, the in-line blending requirements
remain largely unchanged except that RFG manufacturers' in-line
blending waivers need not cover parameters no longer required for
certifying batches of gasoline (discussed in more detail in Section
V.A.2). RFG manufacturers will still need to arrange for an annual
audit to ensure that the terms of the in-line blending waiver are being
implemented appropriately. For CG manufacturers, we will allow in-line
blending waivers to cover all regulated gasoline parameters instead of
just sulfur. CG refiners will also have to undergo the same annual
audit procedure that currently exists for RFG refiners under part 80.
The flexibility to cover additional parameters for CG refiners through
the in-line blending waiver should far exceed any costs associated with
the additional audit.

    Due to the substantial changes in part 1090 to the requirements for
in-line blending waivers, we are requiring all gasoline manufacturers
with existing in-line blending waivers to resubmit their in-line
blending waiver requests. This will help to ensure that in-line
blending waivers appropriately cover the new requirements. Gasoline
manufacturers must have EPA-approved updated waiver requests by January
1, 2022. This allows time for refiners to prepare new submissions and
for EPA to review and approve those submissions. Note that diesel fuel
manufacturers with an existing in-line blending waiver do not need to
submit new requests for diesel fuel under part 1090 and may continue to
operate under their part 80 in-line blending waiver.
    Several commenters expressed concern regarding in-line blending
waivers for locations that are blending into tanks. We did not intend
to disallow in-line blending into tankage and the part 1090 regulations
have been updated to address this concern. We further address these
comments in Section 21 of the RTC document.

H. Confidential Business Information

    We are finalizing regulations that will streamline our processing
of claims that requests for exemptions or flexibilities should be
withheld from public disclosure under Exemption 4 of the Freedom of
Information Act (FOIA), 5 U.S.C. 552(b)(4), as CBI. The regulations
identify certain types of information collected by EPA under part 1090
that EPA will consider as not entitled to confidential treatment
pursuant to Exemption 4 of the FOIA and which EPA will release without
further notice.
    Exemption 4 of the FOIA exempts from disclosure ``trade secrets and
commercial or financial information obtained from a person [that is]
privileged or confidential.'' \132\ In order for information to meet
the requirements of Exemption 4, EPA must find that the information is
either: (1) A trade secret, or (2) commercial or financial information
that is: (a) Obtained from a person, and (b) privileged or
confidential. Information meeting these criteria is commonly referred
to as CBI.\133\
---------------------------------------------------------------------------

    \132\ 5 U.S.C. 552(b)(4).
    \133\ We note that CAA section 114 explicitly excludes emissions
data from treatment as confidential information.
---------------------------------------------------------------------------

    In June 2019, the U.S. Supreme Court issued its decision in Food
Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356, 2366 (2019)
(Argus Leader). Argus Leader addressed the meaning of ``confidential''
within the context of FOIA Exemption 4. The Court held that ``[a]t
least where commercial or financial information is both customarily and
actually treated as private by its owner and provided to the government
under an assurance of privacy, the information is `confidential' within
the meaning of Exemption 4.'' \134\ The Court identified two conditions
``that might be required for information communicated to another to be
considered confidential.'' \135\ Under the first condition,
``information communicated to another remains confidential whenever it
is customarily kept private, or at least closely held, by the person
imparting it.'' (internal citations omitted). The second condition
provides that ``information might be considered confidential only if
the party receiving it provides some assurance that it will remain
secret.'' (internal citations omitted). The Court found the first
condition necessary for information to be considered confidential
within the meaning of Exemption 4, but did not address whether the
second condition must also be met.
---------------------------------------------------------------------------

    \134\ Argus Leader, 139 S. Ct. at 2366.
    \135\ Id. at 2363.
---------------------------------------------------------------------------

    Following issuance of the Court's opinion, the U.S. Department of
Justice (DOJ) issued guidance concerning the confidentiality prong of
Exemption 4, articulating ``the newly defined contours of Exemption 4''
post-Argus Leader.\136\ Where the government provides an express or
implied indication to the submitter prior to or at the time the
information is submitted to the government that the government would
publicly disclose the information, then the submitter cannot reasonably
expect confidentiality of the information upon submission, and the
information is not entitled to confidential treatment under Exemption
4.\137\
---------------------------------------------------------------------------

    \136\ ``Exemption 4 After the Supreme Court's Ruling in Food
Marketing Institute v. Argus Leader Media and Accompanying Step-by-
Step Guide,'' Office of Information Policy, U.S. DOJ, (October 4,
2019), available at https://www.justice.gov/oip/exemption-4-after-supreme-courts-ruling-food-marketing-institutev-argus-leader-media.
    \137\ See id.; see also ``Step-by-Step Guide for Determining if
Commercial or Financial Information Obtained from a Person is
Confidential under Exemption 4 of the FOIA,'' Office of Information
Policy, U.S. DOJ, (updated October 7, 2019), available at https://www.justice.gov/oip/step-step-guide-determining-if-commercial-or-financial-information-obtained-person-confidential.
---------------------------------------------------------------------------

    Here, EPA is providing an express indication that we may release
certain basic information incorporated into EPA actions on petitions
and submissions, as well as information contained in submissions to EPA
under part 1090 without further notice, and that such information will
not be entitled to confidential treatment. In particular, this decision
applies to requests under the following processes: R&D testing
exemptions under 40 CFR 1090.610, hardship exemptions under 40 CFR
1090.635, alternative quality assurance programs under 40 CFR 1090.500,
alternative PTD language under 40 CFR 1090.1125, in-line blending
waivers under 40 CFR 1090.1315, alternative measurement procedures
under 40 CFR 1090.1365, survey plans under 40 CFR 1090.1400, and
alternative labels under 40 CFR 1090.1500. Accordingly, such
information may be released without further notice to the submitter and
without following EPA's procedures set forth in 40 CFR part 2, subpart
B. Thus, to improve processing of information requests and increase
transparency related to EPA determinations, we are clarifying in the
regulations that a clearly delineated set of basic information related
to our decisions on exemptions, waivers, and alternative procedures
under part 1090 will not be treated as confidential.
    In this action, we are, by rulemaking, providing potential
submitters notice of our intent to release particular information
related to future submissions. Upon receipt of submissions, we may
release the following information: Submitter's name; the name and
location of the facility for which relief is requested, if applicable;
the general nature of the request; and the relevant time period for the
request, if applicable. Additionally, once we have adjudicated
submissions, we may release the following additional information: The
extent to which EPA either granted or denied the request, and any
relevant conditions.\138\ For information submitted under part 1090
claimed as confidential that is outside the categories described above,
and not specified in the regulations at 40 CFR 1090.15(b) or (c), EPA
will evaluate such confidentiality claims in accordance with Argus
Leader and our regulations at 40 CFR part 2, subpart B.
---------------------------------------------------------------------------

    \138\ We note that this list does not convey the entire scope of
information that we may release. Other information that does not
meet the legal requirements for confidential treatment can also be
released despite not being listed here.
---------------------------------------------------------------------------

    We find that it is appropriate to release the information described
above in the interest of transparency and to provide the public with
information about entities seeking exemptions or requests for
alternative compliance procedures under part 1090. Given the fungible
fuel supply, and the resulting impacts of fuel quality specifications
on emissions and emissions control systems when fuels are used in
vehicles and engines, the regulations we are

finalizing in this action will better inform the public about
exemptions to EPA's fuel quality regulations under part 1090 and will
allow for the timely release of basic information relating to the
requests. In particular, exemptions granted under part 1090 could
result in higher levels of sulfur, benzene, or RVP in fuel, as well as
changes in other fuel properties, which can have direct impacts on
human health and the environment or on the functioning of vehicles,
engines, and their emissions control systems. This approach will also
provide certainty to submitters regarding the release of information
under part 1090. With this advance notice, each potential submitter
will have the discretion to decide whether to make such a request with
the understanding that EPA may release certain information about the
request without further notice.
    We received comments suggesting that our treatment of this basic
information should be maintained as CBI if so claimed by submitters.
Commenters suggested that refineries would have to choose between
regulatory relief and release of information that may harm the
refinery's reputation or finances. Commenters also suggested that the
regulatory relief was specifically promulgated to help entities, and
that disclosing information about the refinery would instead result in
harm. We find that establishing the potential release of this basic
information through regulation appropriately balances the interest in
transparency for the public and the protection of information that
could harm a refinery's reputation or finances. As noted above,
providing the public with information about exemptions and
flexibilities will maintain confidence in EPA's regulatory programs
assuring fuel quality and expedite the process for the release of this
information. It will also better inform the public about the use of
these exemptions and flexibilities given the wide use of fuel and its
impacts on air quality and engines and equipment. We note that post-
Argus Leader substantial competitive harm is no longer the standard for
evaluating whether information is confidential within the meaning of
Exemption 4, and we are prospectively, via rulemaking, providing that
we will not provide this specific information with confidential
treatment. Additionally, we disagree with commenters that the
disclosure of this information would necessarily result in harm. For
many of the flexibilities mentioned above, the mere fact of a request
is not often claimed as CBI (e.g., alternative labels or PTD language),
and commenters have provided no explanation as to why the disclosure of
the fact of a request for these non-hardship regulatory flexibilities
and EPA's response could result in harm. For extreme, unusual, and
unforeseen hardship exemptions, as discussed in Section VI.A, the
conditions under which a refinery can request extreme, unusual, and
unforeseen hardship relief going forward are limited (e.g., for natural
disasters or refinery fires), and would very likely be known to the
public such that the release of the fact of a request and EPA's
decision would not result in reputational or financial harm to the
refinery. Additionally, the public interest in the release of
information relating to fuel quality is high, particularly when, as
discussed above, increases in sulfur, benzene, and RVP, or changes in
other fuel properties, have direct impacts on human health, the
environment, and the functioning of vehicles, engines, and their
emissions control systems. Commenters suggested, without any further
explanation as to why, that the mere fact of a petition for relief
would have ``tremendously negative effects on the submitter's
competitive petition'' and that ``[c]ompetitors could seize upon the
company's identified vulnerabilities to gain a competitive advantage
through any number of methods.'' \139\ In addition to failing to
clearly articulate why or how the release of the fact of a petition
would result in harm, commenters have not articulated why the basis for
relief would not already be known in light of the remaining
justifications available for hardship relief under part 1090 (i.e.,
extreme, unusual and unforeseen hardship relief).
---------------------------------------------------------------------------

    \139\ Comments from Small Refineries Coalition, Docket Item No.
EPA-HQ-OAR-0227-0080.
---------------------------------------------------------------------------

    Commenters suggested that this action contradicts Congress's intent
in providing provisions for hardship relief and that Congress must
amend the CAA to allow for the release of this information. However,
the opportunities for regulatory relief under part 1090 are not
statutorily prescribed, nor is the confidential nature of the fact of a
petition for relief or EPA's decision on it provided in the CAA.
Commenters pointed to no CAA text that would suggest otherwise.
    Commenters suggested that EPA has treated requests for regulatory
relief as confidential for many years. While EPA has treated some
requests as confidential, particularly some small refinery hardship
exemptions under the RFS program,\140\ historically EPA has also
disclosed other types of hardship exemption decisions and names of
parties who have received exemptions and other regulatory
flexibilities.\141\ Regardless of our past treatment of submissions,
future submissions under part 1090 will be subject to the provisions
laid out in this rulemaking, and will result in the potential
disclosure of the information described above.
---------------------------------------------------------------------------

    \140\ See, e.g., https://www.epa.gov/fuels-registration-reporting-and-compliance-help/rfs-small-refinery-exemptions, which
provides only aggregated information.
    \141\ See, e.g., press release regarding hardship exemptions
from the sulfur standards, available at: https://archive.epa.gov/epapages/newsroom_archive/newsreleases/d07550f8d366e3c485256b1300637472.html.
---------------------------------------------------------------------------

    As stated above, EPA will continue to evaluate other information
submitted to EPA and claimed as CBI and not articulated in 40 CFR
1090.15(b) and (c) in accordance with Argus Leader and our regulations
at 40 CFR part 2, subpart B.

XIV. Costs and Benefits

A. Overview

    In general, we expect that this action will reduce the cost of fuel
distribution by improving fuel fungibility, reducing the costs for
regulated parties to comply with our fuel quality regulations, and
reducing the costs for EPA to implement these regulations. We do not
expect a measurable effect on regulated emissions or air quality as
this rule does not change the stringency of EPA's fuel quality
standards. This section lays out the general areas of potential cost
savings for producing fuels that we believe will result from this
action.\142\
---------------------------------------------------------------------------

    \142\ We outline in more detail these areas for savings in the
technical memorandum, ``Economic Analysis: Fuels Regulatory
Streamlining Final Rule,'' available in the docket for this action.
---------------------------------------------------------------------------

B. Reduced Fuel Costs to Consumers From Improved Fuel Fungibility

    A number of the provisions being finalized in part 1090 are
expected to improve fuel fungibility. This should result in decreased
costs associated with the distribution and sale of such fuels. Some
examples of ways that this should result in potential cost savings are
the decreased need for separate tanks at terminals, the shipment of
larger batches of fuels through pipelines with less interface
downgrade, and fewer constraints on distribution and use of certain
fuels in various markets (e.g., winter RFG in CG areas). While we
believe that these types of savings could be significant, especially
when applied to the national gasoline and diesel fuel pools, we are
unable to quantify these

types of costs savings. In the proposal, we sought comment on these
potential areas of savings and information that might enable
quantification. While commenters generally supported the provisions
that allowed for improved fungibility, we did not receive any comments
that provided any additional information or analysis to support the
quantification of benefits from improved fungibility. Therefore, we
have not quantified the savings from the improved fungibility of fuels
as a result of this action.

C. Costs and Benefits for Regulated Parties

    We anticipate that the streamlined fuels provisions in part 1090
will significantly reduce the administrative burden for regulated
parties to comply with EPA's fuel quality standards. The opportunities
to reduce such administrative burden have been discussed throughout
this action. Some examples of areas where savings will result are the
decrease in the number of fuel parameters needed to be tested to
certify gasoline (discussed in Section V.A.2), the reduction in the
number and frequency of reports submitted to EPA to demonstrate
compliance with our gasoline requirements (discussed in Section
VIII.C), and cost savings associated with consolidating the current
four in-use survey programs into a single, national in-use survey
program (discussed in Section X.A).
    In general, estimates in administrative burden reduction are
captured in the supporting statement for the proposed information
collection request (ICR) required under the Paperwork Reduction Act
(PRA) and discussed in more detail in Section XV.C.\143\ As part of
this action, we are replacing the multiple existing ICRs for part 80
into a single ICR for all fuel quality programs that are now in part
1090. As part of that process, we are comparing the administrative
burden from the existing ICRs to the estimated administrative burden in
the new ICR. This results in a burden reduction of about $10.7 million
per year. Furthermore, there are additional areas of potential
administrative savings for industry that may not be captured in
ICRs.\144\ We estimate these savings to be about $29.7 million per
year. Including the $10.7 million cost reductions estimated under the
ICR, the total estimated savings in administrative costs to industry is
$40.4 million per year. Table XIV.C-1 outlines the categories
identified for savings.\145\
---------------------------------------------------------------------------

    \143\ The supporting statement for the ICR and other supporting
materials are available in the docket for this action.
    \144\ These savings are discussed in the technical memorandum,
``Economic Analysis: Fuels Regulatory Streamlining Final Rule,''
available in the docket for this action.
    \145\ Id.

  Table XIV.C-1--Estimated Annual Cost Savings by Savings Category \a\
------------------------------------------------------------------------
                                                             Savings (in
                      Savings category                        millions)
------------------------------------------------------------------------
Eliminate Olefin, Aromatics and Distillation Testing.......         $5.4
Fewer Batch Reports........................................          4.5
Less Retail Sampling.......................................          1.5
Eliminate Oxygenate Testing................................          2.5
Independent Labs...........................................          0.6
Oversight Testing..........................................          0.2
Barge Distribution Savings.................................         15.2
Information Collection Request.............................         10.7
                                                            ------------
  Total Savings............................................         40.4
------------------------------------------------------------------------
\a\ Cost savings in 2019 dollars.

    In addition, there are other potential savings for all stakeholders
that are more difficult to quantify. For example, an expected
consequence of making the regulations clearer and less complex will be
less time and effort for staff to understand and be trained on EPA's
regulations and fewer inquiries to EPA or to hired consultants to
untangle regulatory ambiguity.
    Aspects of this action that are expected to increase costs are
expected to be small and offset by a large margin by savings in
provisions they replace. Since we are not making changes to the
stringency of the fuel quality standards, we do not expect fuel
manufacturers to have to alter their production processes in order to
comply with part 1090. In prior fuels rulemakings, retooling crude oil
refineries often serves as the most significant costs associated with
changes in fuel quality standards. Similarly, other parties in the fuel
distribution system are not expected to have to make any costly
adjustments to how they produce, distribute, and sell fuels, fuel
additives, and regulated blendstocks. We do expect there may be some
small one-time costs associated with updating recordkeeping and
reporting systems and practices associated with the modified
regulations. For example, parties will most likely need to change PTDs
to reflect the proposed streamlined language. These costs are expected
to be small and are reflected in the ICR supporting statement.\146\
---------------------------------------------------------------------------

    \146\ The ICR supporting statement is available in the docket
for this action.
---------------------------------------------------------------------------

    Overall, we expect the savings from increased fungibility of fuels,
the decrease in administrative costs, and other indirect cost savings
resulting from the modified regulations to far exceed any one-time
administrative costs needed to begin compliance with part 1090. These
cost savings are expected to be passed along to consumers in the form
of lower fuel prices, given the highly competitive fuels
marketplace.\147\ We also estimated the total new present value cost
savings if the total savings are carried out over 30 years at a 3
percent and 7 percent discounted rate, which are presented in Table
XIV.C-2.\148\
---------------------------------------------------------------------------

    \147\ We discuss many of these areas, including a much more
detailed analysis of the cost savings, in the technical memorandum,
``Economic Analysis: Fuels Regulatory Streamlining Final Rule,'' and
the ICR supporting statement, available in the docket for this
action.
    \148\ These results are discussed in more detail in the
technical memorandum, ``Economic Analysis: Fuels Regulatory
Streamlining Final Rule,'' available in the docket for this action.

       Table XIV.C-2--Estimated Net Present Value Cost Savings \a\
------------------------------------------------------------------------
                                                        Seven percent
     Three percent discount rate (in millions)        discount rate (in
                                                          millions)
------------------------------------------------------------------------
$715..............................................                 $479
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\a\ Cost savings in 2019 dollars.

D. Environmental Impacts

    Since we are not making changes to the stringency of the existing
fuel quality standards, we do not expect any measurable impact on
regulated emissions or air quality. However, as discussed in more
detail throughout this action, there are certain areas where changes to
compliance requirements could be viewed as marginally affecting in-use
fuel quality.\149\ These marginal changes could then have a ripple
effect on regulated emissions. In general, such changes are very small,
typically well below the levels that we have historically attempted to
quantify in rulemakings where we establish fuel quality standards.
Given the relative size of such changes, it would be difficult if not
impossible to make an estimate with any level of confidence on

the overall air quality effects that will result from this action.
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    \149\ In the NPRM we identified those areas that had the
potential to have an effect on in-use fuel quality. These areas
included whether the proposed RFG maximum RVP per-gallon standard of
7.4 psi was too high, whether allowing CG manufacturers the ability
to account for oxygenate added downstream would slightly increase
average in-use sulfur and benzene levels, and whether making
compliance with EPA fuel requirements less burdensome would result
in a number of new, less sophisticated fuel manufacturers that would
be less likely to comply with EPA fuel quality standards. We also
noted that the improved oversight, especially through third-party
surveys, may improve the quality of fuel sold at retail and that by
simplifying and modernizing our reporting requirements information
would be more readily available to better enable the fuel quality
oversight.
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    We sought comment on the potential effect of this action on fuel
quality and we did not receive any adverse comments on potential fuel
quality issues. We believe the streamlining of the fuel quality
programs will on balance ensure greater compliance with our regulatory
requirements by making the requirements more intuitive to the regulated
community to comply with. We also believe the improved oversight
mechanisms will allow us to better oversee compliance with the current
fuel standards and take appropriate action when issues are identified.
The net result of this may be a slight improvement in fuel quality
across the national fuel pool; however, such an effect is difficult to
quantify.

XV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders
can be found at http://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to OMB recommendations have been documented in the
docket. EPA prepared an economic analysis of the potential costs and
benefits associated with this action. This analysis, ``Economic
Analysis: Fuels Regulatory Streamlining Final Rule,'' is available in
the docket.

B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs

    This action is considered an Executive Order 13771 deregulatory
action. Details on the estimated cost savings of this final rule can be
found in EPA's analysis of the potential costs and benefits associated
with this action. This analysis, ``Economic Analysis: Fuels Regulatory
Streamlining Final Rule,'' is available in the docket.

C. Paperwork Reduction Act (PRA)

    The information collection activities in this rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the PRA. The Information Collection Request (ICR) document that
EPA prepared has been assigned OMB ICR number 2060-NEW; EPA ICR number
2607.02. You can find a copy of the ICR in the docket for this rule,
and it is briefly summarized here. The information collection
requirements are not enforceable until OMB approves them.
    The information collection activities include requirements for
respondents to register, report, sample, and test gasoline for four
parameters (i.e., sulfur, benzene, seasonal RVP, and oxygenate/oxygen
content in the case of gasoline; and sulfur in the case of diesel),
keep records in the normal course of business (e.g., PTDs and test
results, as applicable), participate in surveys, conduct attest
engagements, and apply fuel dispenser labels.
    The information collection for part 1090 will not result in
duplication of requirements under existing part 80, as this action will
replace nearly all non-RFS provisions under part 80. Part 1090
represents a change from part 80 that will significantly reduce many
recordkeeping and reporting burdens associated with complying with
EPA's fuel quality standards, including:
     A reduction in the number of unique fuels compliance
reporting forms from 30 to six;
     A change in the frequency of batch reporting from
quarterly to annual;
     A reduction in the parameters or properties required to be
tested and reported, from 13 to four;
     Improvements to forms and procedures to make them more
intuitive and remove duplication; and
     A consolidation and updating of PTD and attest engagement
requirements.
    Most respondents are already registered under part 80 and will not
have to re-register under part 1090. The exact information collection
requirements in this final rule are tied directly to the party's
control over the quality and type of fuel. For example, a refiner of
gasoline has great control over the quality and type of fuel and has
registration, reporting, sampling, testing, recordkeeping, survey, and
attest engagement responsibilities; whereas, a party who owns a retail
station has limited information collection requirements involving the
retention of customary business records (e.g., PTDs) or affixing
labels.
    This information collection will result in the replacement of the
following existing and approved information collections under part 80:
2060-0178 (Reid Vapor Pressure), 2060-0275 (Detergent Additives), 2060-
0277 (Reformulated Gasoline and Anti-Dumping), 2060-0308 (Diesel
Sulfur), 2060-0692 (Performance-Based Test Methods), 2060-0675 (E15),
and 2060-0437 (``Tier 3'') Gasoline Sulfur. These collections currently
total $64,375,590. This collection totals $53,704,290, which represents
a cost savings of $10,671,300.
    Respondents/affected entities: The respondents to this information
collection are parties involved in the manufacture, blending,
distribution, sale, or dispensing of regulated fuels and fuel
blendstocks. These include refiners, importers, blenders, terminals and
pipelines, truck facilities, fuel retailers, and wholesale purchaser-
consumers.
    Respondent's obligation to respond: Mandatory, under 40 CFR part
1090.
    Estimated number of respondents: 134,668.
    Frequency of response: Annual, quarterly, and occasionally.
    Total estimated burden: 608,992 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
    Total estimated cost: $53,704,290 (per year), of which $36,787,434
represents capital/overhead and maintenance cost ($5,744,016) and
purchased services ($31,043,418). The estimated labor costs are
$19,722,363.
    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 in 40 CFR are listed in 40 CFR part 9. When OMB approves
this ICR, EPA will announce that approval in the Federal Register and
publish a technical amendment to 40 CFR part 9 to display the OMB
control number for the approved information collection activities
contained in this final rule.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden, or otherwise has a positive economic effect on the small
entities subject to the rule. This action consolidates EPA's existing
fuel quality regulations into the new 40 CFR part 1090, and the
requirements on small entities are largely the same as those already
included in the existing 40 CFR part 80 fuel quality regulations. While
this action makes relatively minor corrections and modifications to
those regulations, we do not anticipate that there will be any
significant cost increases associated with these changes.

To the contrary, we have quantified overall cost savings from this
action.\150\ Even in those areas where we are imposing provisions with
new costs for some entities, they are either offset by other larger
cost savings or far below having any significant economic impact on a
substantial number of small entities. We have therefore concluded that
this action will have no net regulatory burden for all directly
regulated small entities.
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    \150\ See Section XIV.C.
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E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. This action imposes
no enforceable duty on any state, local or tribal governments.
Requirements for the private sector do not exceed $100 million in any
one year.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. EPA believes,
however, that this rule may be of significant interest to state and
local governments. To the extent that states have adopted fuel
regulations based on EPA's regulatory provisions that we are changing,
they may need to make corresponding changes to their regulations to
maintain their effectiveness. Consistent with the EPA's policy to
promote communications between EPA and state and local governments, EPA
consulted with representatives of various state and local governments
early in the process of developing this rule to permit them to have
meaningful and timely input into its development. EPA has also
consulted with representatives from the National Association of Clean
Air Agencies (NACAA, representing state and local air pollution
officials), Association of Air Pollution Control Agencies (AAPCA,
representing state and local air pollution officials), and Northeast
States for Coordinated Air Use Management (NESCAUM, the Clean Air
Association of the Northeast States).

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

    This action does not have tribal implications as specified in
Executive Order 13175. This action will be implemented at the Federal
level and potentially affects transportation fuel refiners, blenders,
marketers, distributors, importers, exporters, and renewable fuel
producers and importers. Tribal governments would be affected only to
the extent they produce, purchase, and use regulated fuels. Thus,
Executive Order 13175 does not apply to this action.

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

    EPA interprets Executive Order 13045 as applying to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. This action is not subject to Executive Order
13045 because it does not concern an environmental health risk or
safety risk.

I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action consolidates EPA's existing
fuel quality regulations into a new part, consistent with the CAA and
authorities provided therein. There are no additional costs for sources