ASTM D4737 as a more robust method that relies on additional fuel
parameters for calculating cetane index. In response to stakeholder
request, we are proposing that either of the referenced ASTM procedures
are acceptable for determining cetane index.
    Both of the referenced ASTM procedures are valid for the full range
of distillate fuels qualifying as diesel fuel. However, these
procedures rely on fuel characteristics for distillate fuel and they
are therefore not appropriate for biodiesel. The chemical make-up of
pure biodiesel causes it to inherently have higher cetane values and no
aromatic content. With no suitable measurement procedure for cetane
index in biodiesel, and no concern that biodiesel will fail to meet the
cetane index standard or have greater than 35 percent aromatics, we are
proposing to exempt biodiesel from testing to verify compliance with
the cetane index or aromatic content requirement for diesel fuel.
    Additionally, EPA is aware of industry efforts aimed at developing
new test methods for determining cetane index and similar parameters
related to cetane number. We request comment on incorporating new
measurement procedures into part 1090 as an alternative means of
demonstrating compliance with the cetane index standard. In particular,
we request comment on quantitative correlations between the new
procedures with the existing procedures used to determine cetane index.
Where appropriate, these comments should address whether such
quantitative correlations depend on fuel formulations of properties
that may be more or less prevalent than in the past.
3. Performance-Based Measurement System
    EPA adopted the Performance-Based Measurement System (PBMS) that
establishes objective criteria for qualifying laboratories and
measurement procedures (see Sec. Sec.  80.46 and 80.47). Our fuel
quality regulations specify referee test methods for several fuel
parameters and define precision and accuracy criteria so laboratories
can demonstrate that they qualify their equipment for using the referee
procedure, or for using alternative procedures. Precision and accuracy
criteria apply for initial qualification, and for ongoing quality
checks.
    Part 80 includes a specified date for laboratories to omit initial
qualification testing if they have been using the specified referee
procedure for a given parameter. We are proposing to broaden this
approach in part 1090 by allowing laboratories to omit initial
qualification testing if they are using the specified referee test
procedure. This approach treats all laboratories the same. Since the
ongoing quality checks apply for laboratories using these procedures,
the laboratories will still be demonstrating that they are properly
performing these measurement procedures.
a. Scope
    We have received questions on the applicability of PBMS
requirements beyond the predominant scenario of testing fuel at a
refinery. The PBMS provisions for measuring specified fuel parameters
apply to all parties and at all

points in the fuel distribution system. PBMS provisions also apply for
batch testing for compliance, and for quality audits such as what is
required for in-line blending waivers, for test waivers for truck and
rail imports, and for blending certified butane and pentane into PCG.
Any other approach would be inconsistent with PBMS and would create an
unlevel playing field for different market participants.
b. Referee Procedures
    We are transferring the same referee procedures for part 1090 that
currently apply under part 80, subject to the following proposed
exceptions and clarifications.
    First, we are proposing to change the designated referee procedure
for measuring benzene in gasoline from ASTM D3606 to ASTM D5769. We
believe ASTM D5769 is as a superior procedure because measurements
involve little or no interference from ethanol blended into gasoline.
In contrast, ASTM D3606 has interference effects from ethanol that
require careful work to adjust for that interference. Since ASTM D3606
is the referee procedure for measuring benzene in gasoline under part
80, we are proposing to waive requirements to initially qualify testing
with ASTM D3606 as an alternative procedure. We believe the ongoing
PBMS quality demonstrations are sufficient to demonstrate proper
precision and accuracy using ASTM D3606.
    Second, we are proposing to remove measurement of aromatic content
in diesel fuel from the PBMS protocol. We are not proposing to require
aromatic testing for every batch of diesel fuel. As a result, we
believe the PBMS protocols for referee procedures, qualifying
alternative procedures, and ongoing quality testing are no longer
appropriate. We are instead proposing to simply specify that ASTM D1319
and ASTM D5186 are acceptable procedures for measuring aromatic content
in diesel fuel and allowing for alternative procedures that correlate
with either of these specified procedures.
    Part 80 specifies ASTM D6667 as the referee procedure for measuring
sulfur in butane. We are proposing to specify the same referee
procedure (and precision and accuracy criteria) for measuring sulfur in
pentane.
    We have also received questions on the applicability of PBMS to
oxygenates used in gasoline. We have always intended for the PBMS
requirements to apply for testing oxygenates in the same way that test
requirements apply for testing gasoline. Accordingly, we are clarifying
in part 1090 that oxygenates, including denatured fuel ethanol, are
subject to PBMS requirements for all testing under part 1090 in the
same way that these requirements apply for testing gasoline. This
includes the protocol for qualifying alternative test procedures and
the requirements for ongoing quality testing.
c. Updated Versions of Referenced Procedures
    Part 80 currently references specific published versions of the
various test procedures for measuring fuel parameters. These specific
references do not automatically change with periodic updates to those
procedures from the publishing organization, which makes it difficult
for us to keep the regulations current as the industry continues to
improve measurement procedures. To maintain the integrity of the PBMS
protocol while allowing for the regulations to remain current with
evolving industry practices, we are proposing that laboratories may use
updated versions of referee procedures or qualified alternative
procedures without our prior approval, as long as the updated version
has published repeatability and/or reproducibility that is the same as
or better than the version referenced in part 1090.
    A similar approach applies for using an updated method of a referee
procedure to qualify alternative procedures. Laboratories wanting to do
this must first get our approval. We would expect to approve such
requests based on a demonstration that the repeatability and
reproducibility are the same as or better than the referenced
procedure, but we are proposing to establish EPA's approval role to the
extent the updated version of the referee procedure is used to qualify
new alternative procedures. This interaction will also help us identify
instances where we should consider updating the regulation to rely on
the latest available procedures.
d. Criteria and Methods for Qualifying Procedures
    The precision and accuracy criteria from part 80 are migrating to
part 1090 with two exceptions. First, we are proposing to specify
precision and accuracy criteria based on the most recently published
repeatability values from ASTM D2622 for measuring sulfur in 500 ppm LM
diesel fuel and ECA marine fuel. Second, we are proposing to specify
precision and accuracy criteria for gasoline benzene based on the most
recently published reproducibility values from ASTM D5769 instead of
ASTM D3606. The published reproducibility for ASTM D5769 is slightly
higher than for ASTM D3606, which means that it allows for a slightly
more accommodating approach for qualifying alternative procedures.
    We are proposing to transfer part 80 requirements for calculating
precision and accuracy criteria for diesel sulfur based on calculated
values for sulfur concentrations at fixed values to represent
compliance at the standard. This would allow for a fixed criterion for
testing all fuel samples. Selecting a test fuel with very low sulfur
would not be meaningful, since it is not reasonable to compare such
small quantities of measured sulfur to precision and accuracy criteria
that are keyed to the standard. As a result, we are simply transferring
the same specified minimum sulfur values for measuring sulfur in all
the different types of diesel fuel. This becomes problematic for
measuring sulfur in neat biodiesel, since it has inherently low sulfur
concentrations. We would expect testing to qualify methods or to
perform ongoing quality checks with neat biodiesel to include doping
the fuel with enough diesel fuel to meet the minimum sulfur
specification.
    We are proposing to specify that precision and accuracy criteria
for all fuel parameters other than sulfur are to be determined based on
the actual value of the tested fuel. For example, for precision testing
to qualify an alternative method, this would be based on an average
value from the 20 tests (or more) used to evaluate precision.
    We are also proposing that the between-methods-repeatability,
Rxy, for qualifying alternative procedures for method-
defined parameters using non-VCSB methods must be at or below 75
percent of the reproducibility of the designated referee procedure.
This is an increase from the 70 percent value specified in 40 CFR
80.47. The increase in the specified value for the Rxy
criterion is based on the observation that it may be mathematically
impossible to achieve a 30 percent improvement over the repeatability
of the designated referee procedure. We are not aware of anyone seeking
to use a non-VCSB method for fuel-defined procedures, but we want to
continue to allow this to be a viable option. We request comment on the
appropriateness of the proposed value of 75 percent for the
Rxy criterion.
e. Ongoing Testing for Statistical Quality Control
    We are further transferring the statistical quality control
procedures established under 40 CFR 80.47 to part 1090. However, by
rewriting these

procedures in their own section, the proposed provisions may clarify
some points that were previously subject to differing interpretations.
We request comment on the proposed rewrite of the statistical quality
control procedures.

X. Proposed Third-Party Survey Provisions

    Third-party verification plays an important role in overseeing
compliance with our fuel quality programs under the existing part 80.
One key element to our existing third-party oversight regime are in-use
retail level surveys. An advantage of retail survey programs is that
they target fuel quality at the point the fuel is dispensed from a
retail outlet. Under part 80, we have four in-use survey programs that
primarily focus on RFG and RFG areas, ethanol content, E15 labeling,
and ULSD sulfur levels, which are tracked nationally. For the most
part, however, we have little or no other retail level information
under part 80 for CG, which constitutes about 70 percent of the
national gasoline fuel pool. We are proposing a national survey program
in part 1090 that would consolidate the four programs into a single
national survey in-use retail program, thereby reducing costs, while at
the same time expanding the benefits of the survey program nationwide.
When finalized, the part 1090 survey would build upon the existing in-
use survey provisions, leveraging independent third-parties to a
greater extent to ensure that compliant fuels are used in vehicles and
engines in exchange for allowing fuel manufacturers greater flexibility
to account for oxygenates added downstream in their annual compliance
demonstrations,\96\ and reducing the number of fuel parameters that
fuel manufacturers need to be test and report.
---------------------------------------------------------------------------

    \96\ See Section VII.F.
---------------------------------------------------------------------------

    Part 1090 includes two survey programs: a national survey program
of retail outlets that offer gasoline and diesel to ensure that in-use
standards are met, and a voluntary national sampling and testing
oversight program that is intended to help ensure that gasoline
manufacturers collect samples for testing in a consistent manner for
purposes of compliance with applicable standards and thus, maintain the
integrity of our fuel quality program. This section discusses both
proposed programs in detail.

A. National Survey Program

    As previously explained, we are proposing provisions for a
nationwide survey of in-use gasoline and diesel fuel that is intended
to ensure that gasoline and diesel fuel meet our applicable fuel
quality standards when dispensed into gasoline- and diesel-fueled
engines. We have used survey programs to great effect under the
existing part 80 regulations. Table X.A-1 outlines the four survey
programs currently in part 80 and describes the geographic scope,
parties that participate in the survey program, and the estimated
sample size.

                                Table X.A-1--Existing Survey Programs in Part 80
----------------------------------------------------------------------------------------------------------------
                                                                                Minimum
             Program               Regulation citation    Geographic scope     Who participates       sample
----------------------------------------------------------------------------------------------------------------
RFG Survey.......................  Sec.   80.68.......  RFG Areas..........  RFG Refiners.......           4,500
RFG Ethanol Survey...............  Sec.   80.69(a)(11)  RFG Areas..........  RFG Refiners.......           4,500
ULSD Survey......................  Sec.   80.613(e)...  Nationwide, on-      Anyone.............           1,800
                                                         highway diesel
                                                         stations.
E15 Survey.......................  Sec.   80.1502.....  Nationwide gasoline  E15 fuel and fuel             7,500
                                                         stations.            additive
                                                                              manufacturers.
----------------------------------------------------------------------------------------------------------------

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 our 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 being able to rely 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
programs). 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 our current compliance oversight has been on
parties that manufacture fuels at crude refineries with provisions that
then attempt to ensure that the fuel quality as measured at the crude
refinery is maintained all the way to retail. What happens at the crude
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 the finished
fuel (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
downstream parties are taking actions that can impact fuel quality, all
in-use gasoline could benefit from a retail survey. Without it we would
not propose 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 proposing to extend
the retail survey that has been applicable for over 20 years in RFG
areas nationwide to all gasoline. The proposed national in-use gasoline
survey would 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 would also
enable EPA to provide compliance flexibility to CG refiners and
importers similar to RFG refiners and importers.
    There are no associated overall increased costs or compliance
burden for the proposed expansion of the scope of the survey to all CG.
As discussed in Section V.A.2.c, we are proposing a substantial
reduction in sampling and testing requirements on gasoline refiners and
importers at the refinery/import facility by removing the requirement
for the certification of gasoline using the Complex Model. In its
place, we are proposing requirements for refiners and importers to test
for just sulfur, benzene, RVP in the summer, and oxygenates.
2. Proposed National Survey Program
a. Consolidation and Scope
    We are proposing to consolidate the existing four in-use survey
programs outlined in Table X.A-1 into a single national survey program.
We believe the expanded scope of gasoline samples tested nationwide
would help us ensure fuel quality oversight and compliance with our
applicable fuel quality standards. This would also allow for providing
compliance flexibility for CG refiners and importers to account for
oxygenate (as discussed in Section VII.F). As previously explained, the
ULSD and E15 survey programs are national surveys of retail stations
but only test for sulfur in diesel fuel and ethanol content and RVP 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. Currently, 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, we are proposing that the required sample size of our fuels
survey programs could be reduced to less than 7,000 retail outlets
sampled through consolidation. Since the largest expense in retail
surveying is the costs to collect and ship a sample from a retail
station, reducing the sample size from more than 18,000 to less than
7,000 would substantially decrease the costs of the program.
    The main benefit to EPA is the expanded scope of testing for
regulated fuel parameters to all fuel nationwide. Under the existing
program, 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, we are proposing that all gasoline samples
would be tested for sulfur, benzene, RVP (in the summer), and
oxygenates. A statistically determined subset of the national gasoline
sample would 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 survey would continue to ensure E15
pump labeling compliance at retail stations. For diesel, the survey
would still test diesel samples for sulfur. We seek comment on the
proposed consolidation of the four part 80 survey programs and the
proposed expanded scope of the national survey program.
b. Survey Participation
    We are not proposing any revisions to the existing survey for fuel
and fuel additive manufacturers that make E15 or ethanol for use in
making E15, which is the only one of the current surveys that is
mandatory. Other gasoline manufacturers would need to participate in
the national survey program if they wanted to account for oxygenate
added downstream. Under part 80, the RFG regulations impose a similar
survey requirement on RFG refiners and importers that account for
oxygenate in compliance calculations (see 40 CFR 80.69) and since we
are proposing to allow this flexibility for manufacturers of CG, we are
proposing to impose 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.
    Under part 1090, parties that participate in the survey would have
an affirmative defense for downstream violations of our applicable fuel
quality standards. Under part 80, we have provided 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 national
survey program 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
would continue to participate in the national survey program 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.\97\
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 proposing that participation in the national survey
program would satisfy the national survey option for purposes of
compliance with the E15 waiver conditions. The E15 waiver conditions
would allow E15 fuel and

fuel additive manufacturers to continue using 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 would elect to participate in the national
survey program due to significant amount of cost savings associated
with participating in it.
---------------------------------------------------------------------------

    \97\ See 75 FR 68094 (November 4, 2010), 76 FR 4662 (January 26,
2011), and 84 FR 26980 (June 10, 2019).
---------------------------------------------------------------------------

c. Sample Sizes
    We are proposing that the national survey program collect, at a
minimum, gasoline samples from 5,000 gasoline retail outlets and 2,000
diesel retail outlets. Since most retail outlets offer both gasoline
and diesel fuel, we believe that the total number of retail outlets
sampled would be closer to 5,000 retail outlets rather than 7,000
outlets. This proposed total would be substantially lower than the
current regulatory program, which requires sampling for approximately
17,000 retail outlets. 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 we are proposing the same
sample size determination methodology that is used for the existing
part 80 survey programs. This results in approximately 5,000 retail
outlets since the existing survey program for E15 misfueling mitigation
is national in scope. Since we are consolidating the four existing
programs into a national program, the statistical rigor of the sample
selection methodology is unchanged and would result in the same sample
size. What is different for this proposed program compared to the E15
survey program is the types of fuel samples the independent surveyor
would collect at retail outlets and parameters that are tested for
those fuel samples once collected (discussed more in Section X.A.2.d).
    For the subset of gasoline samples that would continue to be tested
for the full suite of Complex Model fuel parameters, we are proposing
that the sample size would be determined using a standard calculation
to estimate national fuel parameters. We expect that around 1,200
gasoline samples would be analyzed for the full suite of Complex Model
fuel parameters using this methodology. We seek comment on the proposed
sample size and sample size determination methodology.
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 would need to conduct the
national survey program and meet similar independence requirements from
parties that hire the surveyor to conduct the program. The independent
surveyor would not be allowed to have financial interest in companies
that hire the independent surveyor to conduct a survey, nor would
companies be allowed to have an interest in the independent surveyor's
organization. Like the part 80 survey programs, the surveyor would need
to submit an annual plan for surveys conducted under part 1090. The
plan would identify how the independent surveyor intends to meet the
proposed regulatory requirements and would be subject to EPA approval
prior to conducting the survey. Additionally, the independent surveyor
would need to submit annually to EPA proof that the national survey
program has been fully funded for the next compliance period by
December 15.
    As part of our effort to modernize the fuel quality programs, we
are proposing to require 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 would help
EPA more quickly provide information collected as part of the national
survey program and promote greater transparency in the fuel quality
program. The proposed independent surveyor reporting requirements are
similar to those currently specified in part 80, and the independent
surveyor would need to keep records in a similar manner. We seek
comment on the requirements outlined for independent surveyors
conducting the national survey program under part 1090.

B. National Sampling and Testing Oversight Program

    The RFG regulations in part 80 currently 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. We also
require that every 33rd batch of RFG collected by an independent lab be
sent to EPA for analysis.\98\ As part of consolidating the compliance
provisions across the various gasoline and diesel fuel to create a
single fuel quality program, we considered how best to ensure proper
EPA oversight of the sampling and testing for fuels compliance.
---------------------------------------------------------------------------

    \98\ 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.
---------------------------------------------------------------------------

    During the rule development process, we received feedback that due
to guidance set forth by EPA in the past on how to select the 10
percent of batches,\99\ refiners needed to arrange for an independent
laboratory to sample 100 percent of RFG batches made by a refinery and
select the 10 percent random sample from among all those RFG batch
samples. Since arranging to have an independent laboratory collect a
sample is the most expensive part of the process, parties that provided
feedback to us argued that this requirement is unnecessarily
burdensome.
---------------------------------------------------------------------------

    \99\ Id.
---------------------------------------------------------------------------

    At the same time, we are proposing to no longer require the use of
the Complex Model and remove various restrictions on the production and
use of RFG. These proposed actions would diminish the need for the
independent lab testing requirement as currently outlined in the part
80 RFG regulations. However, we believe that continuing to ensure that
appropriate sampling and testing is conducted for fuels compliance
demonstration is an important element of any streamlined fuel quality
program.
    Consequently, in lieu of the existing RFG requirements, we are
proposing provisions for a voluntary national sampling oversight
program designed to ensure that samples are collected in a consistent
manner by gasoline manufacturers. The purpose of this proposed program
is to help ensure that fuel manufacturers are sampling and testing in a
manner consistent with required procedures, as discussed in more detail
in Section IX.
    As part of the proposed voluntary national sampling oversight
program, we are also proposing to require that the independent surveyor
review appropriate PBMS qualification and statistical quality control
(SQC) data for the samples collected and tested as part of the proposed
sampling oversight program. We believe that this would help ensure that
labs that test gasoline for compliance under our fuel quality programs
are complying with EPA quality control provisions for labs.
    During the rule development process, we discussed whether a review
of all PBMS qualification and SQC data as part of the annual attest
audit would be appropriate.\100\ In response, stakeholders suggested
that auditors, many of whom lack the technical

expertise to review lab quality control data, would be unable to
perform such auditing functions for each lab on an annual basis,
especially before the June 1 annual deadline to complete the attest
audit process. These stakeholders suggested that in many cases there
would be too much SQC data across an entire compliance period for
auditors to reasonably review. Due to the expertise needed to review
lab PBMS and SQC information and the amount of information needed to
review, we believe a limited review by the independent survey as part
of the proposed voluntary national sampling oversight program is
appropriate. Independent surveyors must demonstrate technical
competency to EPA as part of the annual plan approval process and
should be familiar with EPA quality control procedures. Additionally,
we are proposing a basic record review requirement as part of the
attest engagement process, discussed in more detail in Section XII.B.
Combined, we believe these two proposed requirements would help ensure
that labs are meeting EPA's PBMS and SQC requirements.
---------------------------------------------------------------------------

    \100\ See EPA-420-D-19-001, available in the docket for this
action.
---------------------------------------------------------------------------

    During the rule development process, we also received feedback
arguing that a voluntary national sampling oversight program would not
be necessary due to SQC measures imposed on labs that test fuel samples
in the Tier 3 gasoline sulfur rule. We disagree with the view that Tier
3 SQC provisions serve the same function as the national sampling
oversight program. The SQC provisions place certain control measures on
the actual testing by the labs of gasoline and diesel fuel samples to
help ensure valid measurements. However, the SQC provisions do not
address whether the sample was collected appropriately. Inappropriate
sampling can affect the validity of test results regardless of whether
the SQC provisions show the lab is testing appropriately. Additionally,
EPA enforcement personnel have identified several issues with sampling
during past audits of fuel testing laboratories that we believe can be
reduced by a national sampling oversight program.
    Like the national survey program 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 proposing to require an estimated
300-400 samples would be collected as part of this proposed national
sampling oversight program annually. This compares to the several
thousand samples currently collected from RFG refiners each year. These
samples would be spread across all gasoline manufacturers instead of
just RFG refiners. We believe this is a substantial reduction in
associated burden with independent sampling while still providing the
necessary oversight.
    We are proposing to require gasoline manufacturers that elect to
account for oxygenate added downstream to participate in the proposed
national sampling oversight program. We believe this requirement would
help ensure that fuel manufacturers are sampling, testing, and
reporting results of gasoline that is representative of gasoline (i.e.,
BOB) leaving the refinery gate. We are also proposing to exempt
refineries that have in-line blending waivers from the national
sampling oversight program since these refineries already have an
annual audit requirement by an independent auditor.
    Gasoline manufacturers that participate in the program would 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
also proposing 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 would help ensure that
gasoline manufacturers are following appropriate sampling and testing
procedures year-round, even if sampled early in the season.
    During the rule development process, we received feedback stating
that having an independent surveyor collect a sample without advanced
notice would pose a safety hazard and encounter logistical challenges
that would inhibit the independent surveyor's ability to collect a
sample. For example, refineries and import facilities would often not
have product available for sampling, which would create an issue for an
independent surveyor showing up at random to collect at a refinery. We
believe that an independent surveyor should provide the minimal amount
of advanced notice as practical to ensure that product is available for
sampling and that the independent surveyor could observe whether
samples are collected in accordance with specified sampling procedures.
We also believe that since each gasoline manufacturing facility is
different, the independent surveyor would need to tailor the advanced
notification procedures for each facility. Specifying a procedure for
every gasoline manufacturing facility would not be practical given the
breadth of specific situations, so we are proposing that the
independent surveyor would need to address advanced notification in its
annual plan. We seek comment on ways to minimize advanced notification
for the national sampling oversight program.
    We also received feedback from stakeholders that suggested that
replacing the RFG independent laboratory testing program with the
proposed voluntary national sampling oversight program would allow for
parties to more easily arrange for favorable test results that
demonstrated a fuel met EPA fuel quality standards. These stakeholders
suggested that having a requirement that RFG refiners specify a
registered independent laboratory for testing would make it more
difficult for RFG refiners to arrange for multiple laboratories to test
separate samples from a single batch in search of a favorable test
result. These stakeholders suggested that EPA propose to expand the RFG
independent laboratory requirement to include CG refiners in addition
to RFG refiners under part 1090. They suggested that we require that
all third-party laboratories register and that gasoline refiners be
limited to using a specified, registered third-party laboratory. While
we believe that such a proposal would greatly increase the burden
associated with third-party laboratory testing, which would largely
fall on smaller gasoline refiners as they typically do not have their
own testing laboratories, we do believe it could be useful to limit the
multiple testing of a single batch by multiple laboratories to help
ensure a level playing and better ensure fuel quality. Therefore, we
seek comment on whether we should require that all third-party
laboratories register and that refiners be limited to using a
specified, registered third-party laboratory.
    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.\101\ Under part 1090, we would no longer collect
these oversight samples from RFG refiners and independent labs.
However, as part of the national sampling oversight program, we are
proposing that the independent surveyor would send a random selection
of samples collected as part of the proposed oversight program to NVFEL
for comparison to the results obtained from the independent surveyor
and fuel manufacturer's lab. This would allow our lab to continue to
serve as a reference installation and maintain our oversight of the
national sampling oversight program.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    Like the proposed national survey program, we are proposing that an
independent surveyor would conduct the national sampling oversight
program. We envision that these parties would function similar to the
way that independent surveyors operate under the existing part 80
program. Therefore, we are proposing a similar independence and plan
approval process as those used for independent surveyors under part 80
and the proposed national survey program. The only difference would be
a change in the reported elements as samples are collected from
gasoline manufacturing facilities instead of retail stations. We seek
comment on whether the approach outlined for independent surveyors is
appropriate for the national sampling oversight program.
    We seek comment on all aspects regarding the proposed national
sampling oversight program.

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 P). As described in this section,
importers would continue to be subject to the same requirements as
refiners, while exporters would continue to be subject to certain fuel
designation and recordkeeping provisions. Overall, we are proposing few
changes to how imported and exported fuel products are treated relative
to the current provisions of part 80, although we are proposing to
significantly change the regulatory text. Many of the proposed
provisions are merely codification of existing implementation policies
summarized in a 2003 question and answer (Q&A) document (``2003
Q&A'').\102\
---------------------------------------------------------------------------

    \102\ 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 proposing requirements for importers
that largely mirror what we currently require under part 80. However,
we are proposing some updates to provisions for imports. First, under
part 1090, importers that import fuel at multiple import facilities
within a single PADD would need to aggregate the facilities for
purposes of complying with the benzene maximum average standard. For
compliance with other average standards, importers would 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.\103\
---------------------------------------------------------------------------

    \103\ See 19 CFR part 151, subpart C.
---------------------------------------------------------------------------

    Second, under part 80, we currently have guidance that allows
gasoline classified as ``American Goods Returned'' to the United States
by the U.S. Customs Service to not count as imported gasoline.\104\ We
are proposing language consistent with that guidance in part 1090,
provided all the following conditions are met:
---------------------------------------------------------------------------

    \104\ 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
refinery prior to being imported into the U.S.
    We are not making any significant changes to the definition of an
importer, which we define as ``a person who imports gasoline, gasoline
blendstocks or components, or diesel fuel from a foreign country into
the United States (including the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa, and the Northern Mariana
Islands).'' 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. We seek comment on these proposed
updates to the import provisions under part 1090, and whether we should
make changes to the definition of an importer.

B. Special Provisions for Importation by Rail or Truck

    We are proposing reduced compliance options for meeting testing
requirements when importing fuels by either rail or truck. These
provisions would allow importers to meet the sampling and testing
requirements based on test results from the supplier instead of testing
each batch after the fuel was imported under certain conditions.
    First, the importer would need to get documentation of test results
from the supplier for each batch of fuel. Testing for a given batch
would need to occur after the most recent delivery into the supplier's
storage tank and before transferring product to the railcar or truck.
    Second, the importer would need to conduct testing to verify test
results from each supplier, by collecting samples either once every 30
days or every 50 rail or truckloads from a given supplier, whichever is
most frequent. The proposed provisions would treat importation of
gasoline and diesel fuel separately but apply to rail and truckloads
together if the importer imported product from a given supplier by rail
and truck.

C. Special Provisions for Importation by Marine Vessel

    We are proposing provisions that specifically address importation
of fuels by marine vessels. These provisions are generally the same as
those addressed in the 2003 Q&A. Under part 1090, separate
certification would be 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 proposing not to allow importers who import by
marine vessels to rely on testing from a foreign source.

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.
    Under these proposed provisions, when finalized, different ship
compartments would be considered different batches of fuel. However, we
are proposing the following exceptions. First, importers would be
allowed to 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 proposed for all composite samples. As is the case
under part 80, importers would need to demonstrate that results for
homogeneity testing fell within the specified repeatability range for
the test method used(s) used to determine homogeneity. Under the
updated homogeneity testing procedures in part 1090, this would 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 part 80 requiring
that importers establish homogeneity for all Complex Model parameters,
which could be as many as 11 fuel parameters. Under part 1090,
importers would only need to establish homogeneity for two fuel
parameters. This change would result in a substantial decrease in
testing burden.
    Second, we would 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 each individual vessel compartment is shown,
through sampling and testing, to meet all applicable standards.

D. Gasoline and Diesel Fuel Treated as Blendstocks

    We are largely transferring current provisions for Gasoline treated
as Blendstocks (GTAB) in part 80 to part 1090. We are also proposing to
substantially reduce the number of parameters that are tested and
reported to EPA. Our primary concern with GTAB has been to ensure that
off-spec gasoline imported into the U.S. are 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 our fuel quality standards is
based on sampling and testing the finished fuel and part 1090 would no
longer require 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 would
continue to need to be reported. Other proposed provisions related to
GTAB are consistent with current part 80 requirements and published
guidance.
    We are also proposing to replace the existing part 80 requirements
for diesel treated as blendstock (DTAB) with a simplified procedure.
Under part 80, most of the DTAB provisions are designed to account for
the DTAB in compliance calculations that have not been used since 2010.
The part 80 provisions require importers to include DTAB in compliance
calculations that are no longer applicable, to keep DTAB segregated
from other diesel fuel, and limit the importer's ability to transfer
title of DTAB. Under part 1090, importers would be able to import
diesel fuel that does not meet applicable EPA standards if the importer
offloads the imported diesel fuel into one or more shore tanks
containing diesel and then samples and tests the blended fuel to
confirm that it meets all applicable per-gallon standards before
introduction into commerce. We believe this process greatly simplifies
the certification process for DTAB and seek comment on this approach.

XII. Compliance and Enforcement Provisions and Attest Engagements

A. Compliance and Enforcement Provisions

    We are also transferring compliance and enforcement provisions,
such as liability, penalty, and prohibited acts and affirmative defense
provisions that are currently in part 80 to part 1090. We are however,
revising existing regulatory text by providing them in an easier to
understand format.\105\ We are proposing regulatory text that
consolidates and eliminates multiple prohibited acts statements in part
80 and replacing them with a simple statement that ``[a]ny person who
violates any requirement in this part is liable for the violation.'' We
solicit comment as to whether this proposed statement will address the
universe of regulatory provisions in part 1090.
---------------------------------------------------------------------------

    \105\ See 40 CFR 80.5 (penalties for fuels violations); 80.23
(liability for lead violations); 80.28 (liability for volatility
violations); 80.30 (liability for diesel violations); 80.79
(liability for violation of RFG prohibited acts); 80.80 (penalties
for RFG/CG violations); 80.610-615 (violation provisions for diesel
sulfur program); 80.1504-80.1508 (violation provisions for gasoline
ethanol blends); and 80.1660-80.1666 (violation provisions liability
for Tier III gasoline sulfur program).
---------------------------------------------------------------------------

    We are also seeking comment on the appropriate default value that
would be applicable to sampling and testing requirements violations for
fuel content standards. The existing 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 is difficult for EPA and the public to know if
the fuel meets the applicable standards. Unlike in the case of our
vehicle and engine regulations where the vehicles and engines still
exist and can be tested by EPA to verify compliance, in the case of
fuel, it is typically commingled with other fuel in the distribution
system immediately upon production, and quickly consumed. The existing
part 80 regulations provide that if a refiner or importer fails to
comply with the gasoline sampling and testing requirements, the
gasoline will be deemed to have a sulfur content of 970 ppm, a benzene
content of 5 volume percent, and a summer RVP of 11 psi, unless the
respective party or EPA demonstrates by reasonably specific showings,
by direct or circumstantial evidence, different properties for the
gasoline giving rise to the violations.\106\ This creates an additional
incentive for refiners and importers to properly sample and test
gasoline and ensures that that they will not benefit by underreporting
the sulfur, benzene, and/or RVP of gasoline that is not properly
sampled or tested. However, during the rule development process,
several stakeholders requested that we reconsider the default values
that EPA uses for enforcement when a regulated party lacks a valid test
result for a regulated fuel parameter.
---------------------------------------------------------------------------

    \106\ See 40 CFR 80.80.
---------------------------------------------------------------------------

    We are not proposing any revisions to the default values currently
found in part 80. We recognize, however, that the gasoline pool today
has substantially lower levels of sulfur and benzene than at the time
the default values were promulgated. For this reason, we seek comment
on whether to establish lower default values for these parameters, and
what an appropriate default value should be. We are also proposing
default values for regulated parameters for fuels, fuel additives, and
regulated blendstocks where we do not have existing default values in
part 80 for parties that fail to meet the applicable sampling and
testing requirements. Table XII.A-1 lists the proposed default values.

       Table XII.A-1--Proposed Default Values for Fuel, Fuel Additive, and Regulated Blendstock Parameters
----------------------------------------------------------------------------------------------------------------
                                                            Sulfur value      Benzene value
                        Product                                (ppm)         (volume percent)   RVP value  (psi)
----------------------------------------------------------------------------------------------------------------
Gasoline...............................................                970                  5                 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.........................................                970                n/a                n/a
Regulated Blendstocks..................................                970                  5                n/a
----------------------------------------------------------------------------------------------------------------

    In general, for fuel additives and regulated blendstocks, we are
proposing default values consistent with the existing values for
gasoline, as we believe these products have similar potential for high
sulfur levels that would be found in the production of gasoline. During
the rule development process, some stakeholders pointed out the use of
default values by blender manufacturers who use PCG by subtraction
could result in the inappropriate generation of sulfur and benzene
credits. Since the main purpose of these default values is to provide
incentives for parties to obtain valid test results, our proposal to
assume zero sulfur and benzene content from the PCG in a PCG by
subtraction scenario would attribute all sulfur and benzene to the
added blendstock and provide incentives for a blending manufacturer to
appropriately sample and test the PCG.
    For diesel fuel, we are proposing a default 1,000 ppm sulfur value,
as this level of sulfur content is consistent with the distillate ECA
marine fuel specification. For ECA marine fuel, we are proposing a
default 5,000 ppm sulfur value, as this level of sulfur content is
consistent with global marine fuel standards to meet the 2020 MARPOL
Annex VI marine fuel sulfur specification. For both diesel fuel and ECA
marine fuel, we expect that the next higher sulfur standard provides a
logical default value and would provide incentives for diesel fuel and
ECA marine fuel manufacturers to obtain valid test results.
    We seek comment on the newly proposed default values. When
providing comments related to the proposed default values, commenters
should provide a thorough rationale (including relevant data and
information) for suggested default values to help EPA consider
alternative default values.
    We are not proposing any other significant revisions to current
compliance and enforcement provisions that are in part 80. As earlier
explained, we are merely consolidating and simplifying these provisions
in part 1090. We will treat comments on any other compliance and
enforcement provisions beyond those discussed in this section as
outside of the scope of this action.

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 existing attest requirements in part 80 to a
single subpart in part 1090 (subpart R). 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 are proposing to add a requirement for auditors to
review the refiner's or importer's calculations showing that they
comply with the sulfur and benzene average standards. We note that the
EPA's Office of Inspector General made certain findings regarding
compliance with these standards and recommendation as part of their
review of the auditing requirements under part 80.\107\ One
recommendation was to modify the attest engagement regulations to
require that attest auditors verify compliance calculations for
gasoline manufacturers to help ensure that the average benzene standard
was met. We believe the proposed attest engagement provisions are
consistent with this recommendation and would provide better oversight
of the gasoline sulfur and benzene average standards.
---------------------------------------------------------------------------

    \107\ 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 proposing to codify the existing attest requirements
spelled out in the RFG Q&A document.\108\ We are proposing these
requirements for both CG and RFG. The most significant proposal would
be 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 are proposing to require a relatively straight-
forward review by auditors of whether labs used to test gasoline for
compliance have records demonstrating that 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 proposing
to require 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 are proposing that the independent surveyor review this
type of information under the voluntary sampling oversight program. We
do not believe that this simple review will greatly increase the burden
associated with the annual attest audits. We believe this lab record
review would help ensure that labs used for testing fuels for
compliance are doing so in a manner consistent with EPA's quality
control requirements helping to ensure a level playing field and
program integrity. We seek comment on this proposed lab record review
requirement and other aspects of the streamlined attest engagement
requirements. We are also seeking as to whether there are other
requirements that would be implemented for purposes of providing
adequate annual attest audits.
---------------------------------------------------------------------------

    \108\ 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.
---------------------------------------------------------------------------

C. RVP Test Enforcement Tolerance

    Currently, the agency recognizes and allows a 0.3 psi downstream
enforcement test tolerance over applicable RVP standards for RVP test
results.\109\ This test tolerance was based on RVP testing variability
and the reproducibility of the test methods. Under this approach, we
rely on test

results from locations downstream of refineries or import facilities to
bring enforcement actions against downstream parties only if the
downstream test results are more than 0.3 psi than 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 refiner's or
importer'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.
---------------------------------------------------------------------------

    \109\ 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.
---------------------------------------------------------------------------

    At this time, we intend to continue 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 would 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 proposing 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 proposed requirements would be consistent with part 80
independence and technical competency requirements for independent
third-parties. We believe the proposed requirements would preserve and
strengthen the integrity of our independent third-party verification
programs.
    We have always had concerns 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 and are
proposing 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 proposing to clarify that independence
requirements apply not only for the third parties and their employees,
but also for any contractors and subcontractors.
    Similar to part 80 provisions, we are proposing to impose
restrictions on both employment history and financial interest. We are
proposing 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. While the financial independence
requirements imposed on the independent third party's employees, who
are directly involved in overseeing the regulated parties, prohibiting
them from owning or otherwise having any financial interest in that
regulated party are generally not changing, we are proposing to apply
these existing independence requirements at the contactor and
subcontractor levels. There would also be 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 seek 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.
    Part 1090 also proposed to include 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; however, we do not
currently require this demonstration for in-use surveys.\110\ These
provisions will ensure that program oversight is being conducted by
parties with the requisite technical capabilities. We are proposing to
require that the independent surveyors, which are regulated further
under subpart N, 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 would be unchanged in part 1090.
---------------------------------------------------------------------------

    \110\ See 40 CFR 80.92 and 80.1469.
---------------------------------------------------------------------------

    We request comment on these technical and experience requirements
and their impacts on the third party oversight program.

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 pump labeling
requirements) into one subpart (subpart O) with only minor changes
(including removing several obsolete provisions from part 80). We are
further proposing to streamline the description of the E15 label by
replacing descriptive paragraphs with a graphic example of the E15 pump
label. We believe these changes would make the regulations easier to
identify and follow for retailers and WPCs.
    We are proposing minor modifications to the existing label
language. For heating oil, we are proposing to remove the label
language identifying that heating oil contains greater than 500 ppm
sulfur.\111\ Most heating oil sold today meets state 15 ppm sulfur
standards, and we believe that it is 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
proposing that retailers could use existing labels to satisfy the part
1090 labeling requirements and that retailers would need to affix a
heating oil label compliant with the part 1090 label requirements when
the existing part 80 label needs replacement.
---------------------------------------------------------------------------

    \111\ 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. Another option would be to limit
labeling to situations where ECA marine fuel is co-dispensed with other
fuels since the purpose of the ECA marine fuel label is to help avoid
the misfueling of diesel engines that require the use of ULSD with ECA
marine fuel. This would only be an issue where such diesel engines
could reasonably be misfueled (i.e., in situations where both ECA
marine fuel or ULSD are co-

dispensed). While we are proposing to maintain the ECA marine fuel
labels currently required under part 80, we seek 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 also seek comment on the structure of proposed fuel pump
labeling regulations, and on the various modifications to label content
described in this section.

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 proposed nozzle requirements for refueling motor vehicles are
aligned with the requirements adopted under part 80. There is one
noteworthy adjustment. We are proposing to 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 specifications, including
rounding, is 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
would not need to be modified.
    Similar nozzle requirements apply for dispensing gasoline into
marine vessels. We are similarly proposing a singular set of nozzle-
geometry specifications in millimeters in a way that is aligned with
the specifications as originally adopted. We are also proposing to
finish 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 are
proposing to require that they be replaced with a nozzle that meets the
standardized configuration. The requirement would apply January 1,
2021, when part 1090 becomes effective. We request comment on the
timing of this proposed requirement, and on the extent of modification
that is required for all installations to meet the nozzle-geometry
requirements.
    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 are proposing 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.

D. Previously Certified Gasoline (PCG)

    We are proposing to largely maintain the existing part 80
provisions for how blending manufacturers may make new batches of
gasoline from PCG and blendstocks.\112\ In the Tier 3 rule, we
finalized changes to improve the consistency of the PCG provisions
across part 80; \113\ however, we maintained separate PCG provisions
for each part 80 gasoline program. In part 1090 we are proposing to
consolidate these provisions into a single set of PCG provision. The
proposed PCG provisions maintain both options used in part 80: (1) PCG
by subtraction and (2) PCG by addition.\114\ Other proposed 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. We seek
comment on the proposed consolidation of the PCG provisions.
---------------------------------------------------------------------------

    \112\ The purpose of allowing parties to make new batches using
PCG is to allow flexibility for parties to make new fuels to
accommodate the market demands while ensuring that the fuel quality
standards are met. The provisions are designed to ensure that
gasoline per-gallon standards are met in the new batch and that the
blending manufacturer does not increase the average sulfur and
benzene levels in the national gasoline pool.
    \113\ See 79 FR 23575-23576 (April 28, 2014).
    \114\ 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 would need to sample and test for sulfur year-round
and for RVP in the summer.
---------------------------------------------------------------------------

E. Transmix and Pipeline Interface Provisions

    In part 1090 we are consolidating and simplifying the flexibilities
provided to fuel manufacturers that use transmix to produce gasoline
and diesel fuel. We are also proposing changes to align the
requirements applicable to these parties to the requirements applicable
to fuel manufactures under part 1090.\115\ 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 the following sampling and testing
requirements and standards instead of the sampling and testing
requirements and standards otherwise applicable to a refiner under this
subpart O.'' \116\ 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. We
seek comment on whether transmix processors and blenders should have
the option to comply with the requirements that apply to other fuel
manufacturers. Any comment on this issue should provide specific
recommendations regarding how to structure the program to assure
compliance with all per-gallon standards, accurately account for the
sulfur and benzene content of the fuel, and avoid double counting.
These proposed changes to the transmix rules are discussed in the
following sections.
---------------------------------------------------------------------------

    \115\ Refiners that produce gasoline and diesel fuel by
processing crude oil may not use the alternative provisions and are
subject to all requirements that apply to a fuel manufacturer.
    \116\ See 40 CFR 80.1607.
---------------------------------------------------------------------------

1. Clarifying and Consolidating the Definitions of Transmix and
Pipeline Interface
    Part 80 currently provides flexibilities for transmix due to the
unique way in which transmix is reprocessed into useable products and
the need to expeditiously clear transmix volumes from the fuel
distribution system to keep product flowing to markets. Transmix has
traditionally been processed at small facilities that cannot support
the installation of fuel desulfurization equipment. For example,
pipelines are permitted to blend limited volumes of transmix into fuels
subject to EPA standards provided that such blending does not impact
compliance with the standards. Part 80 also provides that 500 ppm
diesel fuel from transmix processors can be sold for use in older
locomotive and marine

engines that do not require the use of 15 ppm diesel fuel. Other diesel
fuel producers are required to meet 15 ppm sulfur standard for all LM
diesel fuel they produce. Transmix processors that produce 500 ppm LM
diesel fuel are required to submit a compliance plan that demonstrates
that the 500 ppm LM diesel fuel will not be used in engines that
require the use of 15 ppm diesel fuel.
    Products are commonly shipped by pipeline adjacent to each without
any physical barrier between the products. Pipeline interface is
defined as the volume of petroleum product generated in a pipeline
between two adjacent volumes of non-identical petroleum product that
consists of a mixture of the two adjacent products.\117\ The pipeline
interface ``cut'' refers to the point between the two adjacent pipeline
batches where physical separations are reintroduced at the end of
shipment by pipeline. Depending on the quality requirements of the
adjacent products, pipeline interface can often be cut in one or both
of the adjacent products. When one of the adjacent products has unique
quality specifications, it is sometime necessary to cut all of the
interface into the product with the less stringent specifications. In
situations where the pipeline interface cannot meet the specifications
for either of the adjacent batches, it is called transmix and must be
segregated for further processing before being sold as a fuel. This is
typically the case when batches of gasoline and diesel fuel must be
shipped by pipeline adjacent to one another.
---------------------------------------------------------------------------

    \117\ See 40 CFR 80.84(a)(1). We are proposing to maintain the
current definition of pipeline interface.
---------------------------------------------------------------------------

    Provisions related to the treatment of transmix are currently
located in various sections in part 80.\118\ To improve clarity, we are
consolidating most of the special provisions related to the treatment
of transmix into a single subpart in part 1090 (subpart F). We are also
incorporating 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.\119\
---------------------------------------------------------------------------

    \118\ See 40 CFR 80.84, 80.213, 80.513, 80.840, and 80.1607.
    \119\ Current 40 CFR 80.84.
---------------------------------------------------------------------------

2. Blending Transmix Into Previously Certified Gasoline
    In part 1090 we are proposing a minor change to the requirements
that apply to parties that blend transmix into PCG.\120\ 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 are temporarily required
under part 80 to conduct more frequent sampling and testing. We are
proposing that no more than one sample per day may be used to
demonstrate compliance with this increased testing requirement. We
believe that this is consistent with common industry practice to spread
out the required samples at the proposed one per day frequency, so
adoption of this proposed change would not result in an increased
burden to industry. The existing part 80 regulations would allow
unscrupulous parties to circumvent the intended purpose of the
regulations by pulling all of the required samples at one time. This
proposed change in part 1090 would ensure that the required increase in
sampling and testing frequency fulfills the intended purpose of
verifying that the issue that caused the violation has been resolved.
---------------------------------------------------------------------------

    \120\ 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
    Transmix gasoline product (TGP) is the distillation fraction
produced by a transmix processor that is in the gasoline boiling range.
Parties that produce gasoline from TGP are currently provided with
streamlined provisions in part 80 to demonstrate compliance with the
requirements that apply to fuel manufacturers. These current provisions
are complicated by the additional fuel parameter specifications for RFG
beyond those for CG. The proposed elimination of these additional
requirements for RFG (discussed in Section V.A.2.c) makes these
complications unnecessary since the only difference between RFG and CG
would be the applicable volatility standard. Therefore, in the
streamlined provisions in part 1090 we are proposing to eliminate the
current differences for producing RFG versus CG from TGP and replace it
with provisions consistent with the proposed streamlined provisions for
gasoline.\121\ Under the proposed approach, the only difference between
the streamlined provisions producing RFG versus CG from TGP would
pertain to the volatility standard that would apply. Under this
approach, parties that use these streamlined provisions would exclude
the volume of TGP and PCG used to produce gasoline from their annual
compliance calculations to demonstrate compliance with the sulfur and
benzene average standards under all circumstances. Parties that use
only TGP or TGP and PCG to produce gasoline would be deemed in
compliance with the sulfur and benzene average standards, provided they
are in compliance with the proposed streamlined provisions. Parties
that made gasoline with TGP and other blendstocks would use PCG
procedures to account for the sulfur and benzene levels of the added
blendstocks for demonstrating compliance with annual average sulfur and
benzene standards. In all cases, as is the case today under part 80,
parties that make gasoline using TGP would need to 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.
---------------------------------------------------------------------------

    \121\ For example, compliance with the anti-dumping requirements
of part 80 would no longer be required.
---------------------------------------------------------------------------

    To provide additional flexibility, we are proposing that parties
who use these streamlined provisions and could demonstrate that the
feedstocks they use to produce gasoline contain no oxygenate would not
be required to test the gasoline they produce for oxygenate content.
4. 500 ppm LM Diesel Fuel Produced From Transmix
    To improve clarity and remove restrictions that are not cost
effective, we are proposing 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.
    The current regulations in part 80 require facilities that handle
500 ppm LM diesel fuel to segregate it from fuel having other
designations (e.g., ULSD) all the way from the producer through to the
ultimate consumer.\122\ Locomotive refueling facilities stated that the
supply of 500 ppm LM diesel fuel is sometimes not consistent enough to
ensure an adequate supply in their 500 ppm LM storage tanks that are
dedicated to supplying 500 ppm LM diesel fuel. To facilitate the
efficient refueling of their locomotives that may use 500 ppm LM diesel
fuel, they requested that EPA allow ULSD to be introduced to their 500
ppm LM storage tanks provided that the resultant mixture of 500 ppm LM
and ULSD is treated as 500 ppm LM. We agreed that

providing this flexibility would be consistent with the intent of the
500 ppm LM diesel fuel segregation requirements under part 80 to ensure
that the 500 ppm LM diesel fuel is not inappropriately swelled by the
introduction of greater than15 ppm diesel fuel that was not produced
from transmix. Accordingly, we issued guidance \123\ to retail and WPCs
of 500 ppm diesel fuel that ULSD may be introduced to their 500 ppm LM
storage tanks provided that resultant mixture of 500 ppm LM diesel fuel
and ULSD is treated as 500 ppm LM diesel fuel. We are proposing to
codify this guidance in part 1090. There is thus no impact of this
regulatory change, but it will improve the clarity and understanding of
our regulations.
---------------------------------------------------------------------------

    \122\ See 40 CFR 80.513(h)(3).
    \123\ See Question 14.4, ``Questions and Answers on the Clean
Diesel Fuel Rules,'' EPA-420-B-06-010, July 2006.
---------------------------------------------------------------------------

    Part 80 currently requires that the volume of 500 ppm LM diesel
fuel may increase by no more than 2 volume percent while in the custody
of any party in the distribution system. We are proposing to remove
this requirement because we believe that the other existing safeguards
are sufficient to prevent an inappropriate increase in the volume of
500 ppm LM diesel fuel during distribution due to the introduction of
other high sulfur distillate streams. For example, pipeline operators
may only ship 500 ppm LM diesel fuel by pipeline if the fuel does not
come into physical contact in the pipeline with batches of other
distillate fuel that have a sulfur content greater than 15 ppm. Other
parties in the distribution system are required to segregate 500 ppm LM
diesel fuel from other fuels except for the allowance discussed above
to introduce ULSD into retail and WPC storage tanks. All parties in the
distribution system must maintain records to demonstrate that an
increase in 500 ppm LM diesel fuel while in their custody was due to
normal interface cutting practices, thermal expansion, and/or the
addition of ULSD to retail or WPC storage tanks.
    Stakeholders have also requested that regulatory language be added
to clarify that ULSD may be used as a blendstock with transmix
distillate product (TDP) to produce 500 ppm LM diesel fuel. They also
requested that we clarify that 500 ppm LM diesel fuel may be
redesignated as IMO marine fuel, heating, oil, or blendstock. We are
proposing that these practices are acceptable under part 1090. We are
proposing that parties that redesignate 500 ppm LM diesel fuel as IMO
marine fuel would be required to maintain records from the producer of
the 500 ppm LM diesel fuel (i.e., PTDs accompanying the fuel) to
demonstrate compliance with the 500 ppm maximum sulfur standard.
5. Streamlining the Requirements for Pipeline Interface That Is not
Transmix
    The current requirements for RFG include specifications for
additional fuel quality parameters beyond those required for CG. These
additional requirements for RFG necessitated unique requirements
related to the treatment of the interface between RFG and CG. For
example, part 80 currently requires that interface containing RFG and
CG must be designated as CG.\124\ The proposed changes to RFG discussed
in Section V.A.2 would eliminate concerns over maintaining average RFG
emission performance and limit the fuel property distinction between CG
and RFG to just RVP and then only during the summer months. Therefore,
we are proposing to similarly streamline the provisions regarding
interface cuts between RFG and CG. We are proposing that pipeline
operators may 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. During the winter
months there would be no restrictions remaining. Only during the summer
season are we proposing that pipeline operators could 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 could not cut pipeline interface from a
batch of RFG shipped adjacent to a batch of CG into the batch of RFG.
We believe these reduced restrictions would allow greater flexibility
and efficiency in the distribution of gasoline.
---------------------------------------------------------------------------

    \124\ See 40 CFR 80.84(b)(1).
---------------------------------------------------------------------------

F. Gasoline Deposit Control

1. Overview
    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.\125\ 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.\126\
---------------------------------------------------------------------------

    \125\ See 61 FR 35310 (July 5, 1996).
    \126\ Under part 80, this period can be up to 30 days. Part 1090
would 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.\127\ 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 under the detergent
program today. During the rule development process, some stakeholders
stated that the existing federal detergents program could affect
gasoline direct injection engines in a different manner than circa 1990
vehicles. We have also been informed that there may be situations where
the presence of a detergent may not provide any benefit and may
actually exacerbate deposit formation. Given the paucity of data on the
current effects of the detergent program in the modern vehicle fleet,
we seek comment on information on the effects of the federal detergent
program on controlling deposits in modern vehicles and the impact on
vehicle emission performance.
---------------------------------------------------------------------------

    \127\ 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 proposing to streamline the program to the extent possible to
minimize its cost. Specifically, we are proposing to: (1) Eliminate the
redundant requirement that a detergent that is demonstrated to control
intake valve deposits also be

tested to demonstrate the ability to control fuel injector deposits;
(2) ease the adoption of updated deposit control test procedures when
they become available; (3) simplify the process for registration and
certification of detergents and the demonstration of compliance by
detergent blenders; (4) remove expired and unused provisions; and (5)
remove the requirement that the gasoline portion of E85 must contain a
certified detergent. The following sections detail the changes we are
proposing.
    CAA section 211(l) includes a requirement that gasoline must
``contain additives to prevent the accumulation of deposits in engines
or fuel supply systems.'' Our regulations maintain this requirement,
but we are proposing to modify or eliminate certain testing
requirements and simplify the registration and certification process
and compliance demonstrations. CAA section 211(l) also requires that
EPA promulgate regulations with specifications for detergents. While
this action modifies those specifications, it maintains the requirement
that gasoline contain detergents and maintains specifications for
detergents, updating them to accommodate new circumstances discussed in
this section. These proposed changes to the detergent program continue
to be compliant with CAA section 211(l).
2. Eliminating the Port Fuel Injector Deposit Control Testing
Requirement
    We are proposing to eliminate the requirement that detergents be
tested to demonstrate the ability to control port fuel injector
deposits. This would substantially decrease the burden of introducing
new detergents while maintaining the benefits of the detergent program.
    We currently require 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
supports the conclusion that detergents that are capable of controlling
intake valve deposits are inherently capable of controlling port fuel
injector deposits.\128\ 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 uses a
1985-1987 Chrysler 2.2L vehicle.\129\ The fuel injector technology used
in these antiquated 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 and the evaluation of deposit control in gasoline direct
injection engines that represent an increasing share of the new vehicle
fleet.
---------------------------------------------------------------------------

    \128\ 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.
    \129\ 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 likewise antiquated and of questionable
relevance to the in-use fleet today. New detergents are currently
tested using the EPA ASTM D5500 BMW-based deposit control test
procedure (``EPA ASTM D5500 procedure'') 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 34-year-old vehicle is no longer
representative of the technology used in modern vehicles.\130\ 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.\131\
---------------------------------------------------------------------------

    \130\ CRC Gasoline Engine Deposit Task Group, CRC Project No.
CM-136, CRC Annual Report, September 2018.
    \131\ 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.\132\ 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 the
widespread use of E10. 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. The Tier 2 gasoline sulfur program, finalized
in 2000, reduced the sulfur content of gasoline by up to 90
percent.\133\ The Tier 3 gasoline sulfur program, finalized in 2014,
required a further reduction in gasoline sulfur levels to a 10 ppm
average from a 30 ppm average under the Tier 2 program.\134\ 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. 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.\135\
---------------------------------------------------------------------------

    \132\ 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.
    \133\ See 65 FR 6698 (February 10, 2000).
    \134\ See 82 FR 23414 (April 28, 2014).
    \135\ The approved sulfur doping compound is di-tertiary di-
butyl sulfide.
---------------------------------------------------------------------------

    Consequently, we no longer have confidence that the current EPA
ASTM D5500 procedure can be used to assess deposits in today's vehicle
fleet and therefore that the detergent additives tested using it
provide any of the real world emission benefits quantified in 1996 when
the detergent regulations were finalized. As a result, we are proposing
to streamline our intake valve deposit control requirements.
Specifically, we are proposing that new detergent deposit control
testing would be conducted using California's deposit control program
or the Top Tier program.\136\ Data from California's program is
currently accepted to satisfy EPA requirements only for gasoline that
meets California's gasoline program.\137\ As discussed in Section
XIII.F.4, we are proposing to expand the applicability of detergents in
EPA's gasoline detergent program based on the ability of

California's program to satisfy EPA requirements for all gasoline. Data
used to comply with the Top Tier program is currently accepted for EPA
detergent certification in lieu of data using the EPA ASTM D5500
procedure. Data used to satisfy the requirements of the Top Tier
program would continue to be accepted to satisfy EPA deposit control
requirements.\138\ However, the data from the EPA ASTM D5500 procedure
would no longer be accepted for new detergents. Existing detergent
certifications based on the EPA ASTM D5500 procedure would continue to
remain valid indefinitely. As discussed in Section XIII.F.5,
stakeholders could petition EPA to adopt updated deposit control test
procedures for new detergents.\139\ We seek comment on this proposal or
whether we should continue to accept data from the EPA ASTM D5500
procedure for new detergents.\140\
---------------------------------------------------------------------------

    \136\ See Title 13, California Code of Regulations, Section
2257.
    \137\ We are also proposing to incorporate by reference the most
recent version of the ASTM D5500 procedure.
    \138\ We are also proposing to update the detergent deposit
control testing provisions that are based on the Top Tier program to
reflect current Top Tier test fuel composition specifications.
    \139\ The proposed procedures to adopt potential changes to
detergent deposit control test procedures as they arise in the
future are discussed in Section XIII.F.5. See Section XIII.F.4
regarding the geographic applicability of California detergent
certifications.
    \140\ This approach is not reflected in the proposed regulatory
text but would only require minor changes to allow.
---------------------------------------------------------------------------

    Eliminating the separate EPA ASTM D5500 procedure for new detergent
deposit control testing combined with the proposed expanded
applicability of California-based detergent certifications, would
substantially streamline the detergent program. Additive manufacturers
would no longer need to be concerned with the difficulties associated
with performing a separate EPA ASTM D5500 procedure.
    We acknowledge that similar concerns exist regarding the
representativeness of the California detergent program's ASTM D5500
procedure (``California ASTM D5500 procedure''). However, we are
proposing to continue to accept valid detergent certification under
California's program as demonstration of compliance with our
requirements because we believe that the more stringent intake valve
standard and more representative test fuel specifications for the
California ASTM D5500 procedure sufficiently mitigates concerns about
the representativeness of the test vehicle.
    We also acknowledge that even the Top Tier test procedures are not
new. The ASTM D6201 procedure adopted by the Top Tier program in 2004
and it is accepted that the technology in the 25-year-old engine used
in the ASTM D6201 procedure is also no longer representative of the
majority of the vehicle population.\141\ Hence, the updated deposit
control test procedure currently under development by CRC would also
likely replace to the ASTM D6201 procedure. Some industry
representatives stated that the fading relevance of the ASTM D6201
procedure suggests that EPA should defer taking action on retiring the
ASTM D5500 procedure until an updated procedure is developed that would
replace both the ASTM D6201 and D5500 procedures. Although, we agree
that it is appropriate to consider retiring the ASTM D6201 procedure as
soon as a replacement procedure is available, we believe that
heightened issues regarding the ASTM D5500 procedure no longer allow
EPA to rely on it. Issues regarding the continued viability of the ASTM
D5500 procedure are more pronounced than those of the ASTM D6201
procedure both because the technology used in the ASTM D5500 procedure
is 9 years older and because it requires vehicle mileage accumulation
on a test rack whereas the ASTM D6201 procedure is an engine
dynamometer laboratory procedure. A number of parts necessary to
maintain the vehicle used in the ASTM D5500 procedure are no longer
available, forcing the use of substitute parts.\142\ The approximately
100-hour ASTM D6201 procedure conducted under controlled laboratory
conditions is inherently less variable than the nearly month-long ASTM
D5500 road-based procedure, thereby providing improved confidence in
the repeatability of the results. Therefore, we believe that it is
appropriate to continue to accept data from the ASTM D6201 procedure in
the interim while a replacement test is under development, while also
disallowing new detergent deposit control testing using the EPA ASTM
D5500 procedure.
---------------------------------------------------------------------------

    \141\ Id.
    \142\ Parts availability is also beginning to be problematic for
the engine used in the ASTM D6201 procedure, although difficulties
in maintaining the vehicle used in the ASTM D5500 procedure are much
more pronounced.
---------------------------------------------------------------------------

    During the rule development process, some stakeholders stated that
disallowing new detergent deposit control testing using the EPA ASTM
D5500 procedure in favor of the Top Tier ASTM D6201 procedure or the
California ASTM D5500 procedure would represent an increase in
stringency in the detergent program that must be supported by an
analysis of costs versus benefits. These parties stated that the
concentration of detergent required to satisfy the requirements of the
California ASTM D5500 procedure and Top Tier ASTM D6201 procedure is
somewhat higher and significantly higher, respectively, than required
under the EPA ASTM D5500 procedure.\143\ We acknowledge that Top Tier,
and perhaps the California procedure, could result in higher detergent
treat rates. However, we are not proposing to eliminate the use of
additives based on the EPA ASTM D5500 procedure. Additive packages can
continue to be used at their existing treat rates indefinitely. It is
only the use of new additives that would potentially be impacted, and
for which we receive only several applications a year. Even then, as
discussed in Section XIII.F.5, we are proposing an administrative
process whereby industry could petition EPA to adopt updated deposit
control test procedures when they become available, provided that such
procedures are as least as protective as the currently accepted
procedures. This demonstration could be made compared to any of the
currently accepted procedures, including the EPA ASTM D5500 procedure.
---------------------------------------------------------------------------

    \143\ The California ASTM D5500 procedure differs from the EPA
procedure in that it has a more stringent IVD standard (50 versus
100 mg of IVD per valve), while requiring a test fuel that has less
deposit forming severity than the test fuel required under the EPA
procedure.
---------------------------------------------------------------------------

    Furthermore, we have no data to evaluate that there are any
emissions benefits for the current vehicle fleet resulting from
satisfying any of the current deposit control test procedures discussed
in this section. The more modern nature of the California ASTM D5500
procedure and the Top Tier ASTM D6201 procedure should provide greater
confidence that compliance with these procedures is providing an
emissions benefit, whereas we lack confidence that compliance with the
EPA ASTM D5500 procedure is providing any meaningful emissions benefit.
4. Expanding the Applicability of Detergent Certifications Based on
Compliance With the California Deposit Control Regulations
    Under the current 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 where 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 our detergent
program was finalized in 1996, the composition of gasoline that
complies with California standards differed substantially from gasoline
that met our requirements.\144\ 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 our program allows the accumulation of up to 100 mg per valve
using the ASTM D5500 procedure. Consequently, we are proposing that a
detergent certified under California's program could be used to meet
our deposit control requirements in all gasoline.
---------------------------------------------------------------------------

    \144\ See 61 FR 35326-27 (July 5, 1996).
---------------------------------------------------------------------------

5. Easing the Adoption of Future Updates to Deposit Control Test
Procedures
    We are co-proposing 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. Under the primary approach, deposit control test
procedures accepted by EPA would be specified in a publicly available
document that could be updated as EPA accepts new procedures. The use
of this streamlined process would 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 process.
    Under this approach, stakeholders could 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 would 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 met applicable requirements, we would publish on our
web page and by direct communications with stakeholders that we have
accepted the change. We would periodically update the detergent
regulations in the CFR to reflect accepted alternatives.
    Under the alternative approach, a notice-and-comment rulemaking
would always be required to make changes to the deposit control test
procedures and the detergent regulations in the CFR would need to be
amended before such changes could take effect. Based on historical
experience, this process would make it more difficult to remain current
with the changing vehicle and fuel marketplace.
6. Removing Expired and Unused Provisions
    The detergent program in part 80 includes provisions to allow a
detergent to be certified for use in different gasoline pools using
test fuels that have specifications representative of the deposit-
forming characteristics of these 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. California has
separate detergency requirements for gasoline sold in California. We
accept detergent certifications under the California program in lieu of
meeting our requirements. All applications for detergent certification
to date other than those based on the California program have been
under the national-generic option.
    We are proposing to remove expired and unused provisions in the
detergent program to make the detergent regulations more accessible and
understandable and eliminate the ongoing costs of maintaining these
provisions. Despite the lack of utility of these provisions, there is a
cost to both EPA and industry of maintaining an understanding of them
as well as the cost of continuing to print them in the CFR. We are
proposing to remove regulatory provisions associated with the interim
detergent program that were superseded by the detergent program in
1996.\145\ We are also proposing to remove the unused options to
certify a detergent for a discrete gasoline pool under the PADD-
specific, regular versus premium grade, non-oxygenated gasoline,
oxygenate-specific, and fuel-specific certification options.\146\ 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 would 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 would also remain valid.\147\
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    \145\ See 40 CFR 80.141 through 80.156.
    \146\ See 40 CFR 80.163.
    \147\ See Section XIII.F.4 regarding the proposed expansion to
the applicability of California-based detergent certifications.
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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 our deposit control requirements. To speed up
the introduction of new detergents and to reduce the burden of
detergent certification, we are proposing that detergent manufacturers
could begin marketing a detergent once the manufacturer is satisfied
that they have met EPA testing requirements without the need for a
prior submission of the data to EPA and approval by EPA. Under this
approach, detergent manufacturers would 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 our Fuel and Fuel Additive Program
in part 79. We are proposing that the additional composition
information that is required for detergents to be evaluated for deposit
control efficacy under part 80, including the lowest additive
concentration (LAC) established by detergent deposit control testing,
would be required to be submitted as part of a detergent's part 79
additive registration rather than requiring a separate submission under
part 80. Combining all the detergent composition information that must
be submitted to EPA under part 79 would reduce the

burden of a separate submission under part 80.
8. Simplifying the Detergent Volumetric Accounting Reconciliation
Requirements
    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. The current VAR
provisions require that detergent blenders compile a separate record
for each monthly VAR period in a standard format. 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 represents a
significant burden. To reduce the burden, they requested that EPA be
more flexible regarding the format of these records. We agree that the
goals of the VAR program can be achieved while providing the requested
flexibility. Removing the requirement that a VAR report be prepared for
each accounting period 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. Therefore,
we are proposing 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.
9. Removing the Requirement That the Gasoline Portion of E85 Contain
Detergent
    The current deposit control regulations require that the gasoline
portion of E85 must contain a detergent additive at a concentration at
least as great as that used during detergent certification testing
(referred to as the lowest additive concentration or LAC).\148\ 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.\149\
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    \148\ See 40 CFR 80.161(a)(3).
    \149\ See 81 FR 80828 (November 16, 2016).
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    In the REGS rule, we noted that we are 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
contribute to deposit formation. We also noted that certain detergents
are not 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. During the rule development
process for this action, stakeholders indicated that they were also
supportive of this change. Therefore, we are proposing to remove the
current requirement that the gasoline portion of E85 contain
detergents.
    This action is allowable under the CAA as 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.\150\
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    \150\ See 40 CFR 79.56(e)(1)(i) regarding the gasoline family
definition. See ASTM D5798 regarding the ethanol content of E85.
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G. In-Line Blending

    We are proposing to continue to allow the use of EPA-approved in-
line blending waivers. These in-line blending waiver provisions allow
refiners to use a procedure 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. However, we are proposing to consolidate these
two sets of requirements into a single set of requirements for in-line
blending in part 1090. For RFG refiners, the in-line blending
requirements would remain largely unchanged except that RFG refiners'
in-line blending waivers would not have to cover parameters we are
proposing to no longer require for the certification of batches of
gasoline (discussed in more detail in Section V.A.2). RFG refiners
would 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 refiners, we are proposing to allow in-line
blending waivers to cover all regulated gasoline parameters instead of
just sulfur. CG refiners would also have to undergo the same annual
audit procedure for RFG refiners that currently exists under part 80.
We believe that the flexibility to cover additional parameters for CG
refiners through the in-line blending waiver would far exceed any costs
associated with the additional audit.
    Due to the substantial proposed changes in part 1090 to the
existing requirements for in-line blending waivers, we are proposing to
require that all refiners with an existing in-line blending waiver
would need to resubmit their in-line blending waiver requests. We
believe this is necessary to ensure that in-line blending waivers
appropriately cover the proposed changes to the in-line blending
requirements. Due to the time it would take for refiners to prepare new
submissions and for us to review and approve those submissions, we are
proposing to allow refiners to operate under their existing part 80 in-
line blending waiver until January 1, 2022, a full year after we are
proposing to implement most other proposed part 1090 provisions. We
believe this would provide an adequate amount of time for refiners to
submit and receive new in-line blending waivers. We seek comment on
whether we should require resubmissions and whether we are providing an
adequate amount of time for refiners to do so.

H. Confidential Business Information

    We are proposing regulations that would 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. If finalized, the
rules would 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