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Fuels and Fuel Additives: Deposit Control Gasoline Additives; Final Rule
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: November 1, 1994]
Part II
Environmental Protection Agency
40 CFR Part 80
Fuels and Fuel Additives: Deposit Control Gasoline Additives; Final
Rule
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[AMS-FRL-5094-3]
RIN 2060-AD71
Regulation of Fuels and Fuel Additives: Interim Requirements for
Deposit Control Gasoline Additives
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: On December 6, 1993, EPA published a notice of proposed
rulemaking to govern the use of deposit control (detergent) additives
in all gasoline used in the United States beginning January 1, 1995.
The proposal included a detergent additive certification program based
on deposit control performance testing and standards. To provide
adequate lead time to the regulated industry, however, simpler interim
requirements were proposed to be in effect during the first year of the
program. This final rule establishes an interim detergent additive
program consistent with the proposed start-up provisions. In a
subsequent action, EPA will take final action on the proposed more
rigorous detergent additive testing and certification program.
EFFECTIVE DATE: This rule is effective January 1, 1995. 40 CFR
80.141(c)-(f), 80.157, 80.158, and 80.160 which contain information
collection requirements (ICR) are not effective until the Office of
Management and Budget (OMB) has approved them. EPA will publish a
document in the Federal Register announcing the effective date.
ADDRESSES: Materials relevant to this final rule are contained in
Public Docket No. A-91-77 at the following address: Air Docket Section
(LE-131), room M-1500, 401 M Street SW., Washington, DC 20460; phone
(202) 260-7548; fax (202) 260-4000. The docket is open for public
inspection from 8 a.m. until 4 p.m., except on government holidays. As
provided in 40 CFR part 2, a reasonable fee may be charged for copying
docket materials. Electronic copies of major documents associated with
this rulemaking are available through the Office of Air Quality
Planning and Standards (OAQPS) Technology Transfer Network Bulletin
Board System (TTNBBS). Details on how to access this bulletin board are
included in Section VI of this preamble.
FOR FURTHER INFORMATION CONTACT: For information related to
qualification of detergent additives for use in complying with gasoline
detergency requirements contact: Jeffrey A. Herzog, US EPA (RDSD-12),
Regulation Development and Support Division, 2565 Plymouth Road, Ann
Arbor, MI 48105; Telephone: (313) 668-4227, Fax: (313) 741-7816. For
information related to the registration of fuels and fuel additives
under 40 CFR part 79 contact: James W. Caldwell, US EPA (6406J), Field
Operations and Support Division, 401 M Street SW., Washington DC 20460;
Telephone: (202) 233-9303, Fax: (202) 233-9556. For information related
to enforcement contact: Judith Lubow, US EPA, Office of Enforcement and
Compliance Assurance, Western Field Office, 12345 West Alameda Parkway
suite 300, Lakewood, CO 80228; Telephone: (303) 969-6483, FAX: (303)
969-6490.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Legal Authority and Rulemaking History
Statutory Provisions and Legal Authority
Rulemaking History
B. Proposed Regulatory Approach
C. Scope of This Action
II. Applicability
A. Summary of Proposed Applicability Provisions
B. Applicability Provisions Finalized Under the Interim Program
III. Interim Program Basic Provisions
A. Background
B. Description of Interim Detergent Program Requirements
Requirements for Detergent Additive Manufacturers
a. Detergent Additive Compositional Data
b. Recommended Minimum Effective Concentration
c. Substantiation of Deposit Control Effectiveness
d. Detergent Additive Identification Procedure
Requirements for Fuel Manufacturers
C. Requirements for Leaded Gasoline
D. Summary and Analysis of Comments
Applicability
a. Leaded Gasoline
b. Gasoline Used for Military Purposes
c. Racing Gasoline
d. Marine Gasoline
e. Gasoline Used in Flexible-Fuel Vehicles
f. Gasoline Used for Research and Vehicle Certification Purposes
Interim Registration Requirements
a. Need for the Demonstration of Both IVD and PFID Control
Performance
b. Additive Qualification Under the Interim Program
c. Performance Demonstration for Different Versions of the Same
Detergent Package
d. Reporting Requirements, Confidential Business Information
IV. Interim Program Enforcement Provisions
A. Introduction and Overview
Part 79 Registration Conformity
Volume Reconciliation
Product Transfer Documents
Liability and Defenses
Exemptions
B. Analysis of Public Comments and Significant Rule Changes
Volumetric Additive Reconciliation (VAR)
a. General Description of the Automated Facility VAR Formula in
the Final Rule
b. Detergent Measurement Equipment
c. Use of Multiple Concentration Rates in One VAR Record
d. Detergent Concentration Rate Adjustments
e. Reconciliation Period
f. Transfers of Unadditized Gasoline
g. Equipment Calibration Requirements
h. VAR Enforcement Tolerance
i. Over-Additization
j. VAR for Hand Blenders
Record Maintenance Requirements
a. Five Year Record Retention
b. Place and Manner of Record Retention
Transfer Documentation
Liability Issues
a. Presumptive Liability
b. Liability for Failure To Comply With VAR Requirements
c. Liability for Inadvertent Violations
d. Detergent Manufacturer Liability: Legal Authority
e. Sale of Unregistered Detergent
f. Legal Authority To Regulate Carriers
g. Interaction With Department of Transportation Safety
Regulations
h. Definition of ``Marketer'' Under Section 211(l)
i. Special Situation of Carriers
j. Liability of Common Carriers
k. Liability Related to Insufficient Supporting Data or Test
Procedures
l. Vicarious Liability
m. Affirmative Defenses to Liability
California Gasoline
Exemptions
Penalties
V. Administrative Requirements
A. Administrative Designation and Regulatory Analysis
B. Compliance With Regulatory Flexibility Act
C. Paperwork Reduction Act
VI. Electronic Copies of Rulemaking Documents
I. Background
A. Legal Authority and Rulemaking History
Statutory Provisions and Legal Authority
The accumulation of fuel deposits in motor vehicle engines and fuel
supply systems and the impacts of these deposits on vehicle performance
have been studied by industry for many years. Fuel injector and intake
valve deposits have been shown to have significant adverse effects on
driveability, exhaust emissions and, in some cases, on fuel economy as
well. The adverse effects of these deposits have been widely accepted,
and industry has or will soon have in place standard test procedures to
evaluate the deposit control effectiveness of gasoline detergent
additives.\1\
\1\The reader is referred to the Notice of Proposed Rulemaking
(NPRM: 59 FR 64213, December 6, 1993) for an in-depth discussion of
the causes of engine and fuel supply deposits, their impacts on
vehicle performance, and deposit control measures.
Since detergent additives can help to prevent engine and fuel
supply deposits,\2\ Congress specified in section 211(l) of the Clean
Air Act that:
\2\See Sen. Rep. No. 101-228, 101st Cong., 1st Sess. at 116
(Dec. 20, 1989) (``[F]uel additives, such as detergents, are
available to maximize the performance of engines and minimize
emissions.'').
Effective beginning January 1, 1995, no person may sell or
dispense to an ultimate consumer in the United States, and no
refiner or marketer may directly or indirectly sell or dispense to
persons who sell or dispense to ultimate consumers in the United
States, any gasoline which does not contain additives to prevent the
accumulation of deposits in engines or fuel supply systems. * * *
Section 211(l) further provides that ``the Administrator shall
promulgate a rule establishing specifications for such additives.'' As
provided in section 211(l), today's rule specifies that all parties
involved in the chain of gasoline production, distribution and sale are
responsible for compliance with the detergent requirements. Certain
compliance responsibilities will also apply to manufacturers of
detergent, even before it is blended with gasoline. The registration
reporting requirements of detergent additive manufacturers (under 40
CFR part 79) have also been clarified and reinforced, and these
requirements must be met before a detergent additive is eligible for
use in complying with gasoline detergency requirements.
EPA is issuing today's final rule under the authority of section
211(c) as well as section 211(l) so that the preemption provisions of
section 211(c)(4) will apply. This is consistent with the approach EPA
has taken in its reformulated gasoline regulations (59 FR 7717,
February 16, 1994). As explained there, whenever the federal government
regulates in an area, the issue of preemption of state action in the
same area is raised. Here, as with reformulated gasoline and the
associated ``anti-dumping'' program, the regulations will affect
virtually all of the gasoline sold in the United States. Also, in
contrast to commodities produced and sold in a single area of the
country, gasoline produced in one area is often distributed to other
areas. The national scope of gasoline production and distribution
indicates that this federal rule should preempt state action to avoid
an inefficient patchwork of potentially conflicting regulations.
Section 211(c), enacted in the 1977 Amendments to the Clean Air Act,
provides that federal fuels regulations adopted under that authority
preempt non-identical state controls except under certain specified
circumstances set out in section 211(c)(4). Those exceptions apply: (1)
To any state for which application of section 209(a) of the Act has at
any time been waived under section 209(b); and (2) where non-identical
state regulations are included in a State Implementation Plan as
necessary to achieve the national primary or secondary ambient air
quality standard which the plan implements. Thus, only California may
regulate gasoline detergency under the first exception. Other states
may adopt non-identical regulations only upon the specified showing
under the second exception.
Section 211(c) authorizes the Administrator, by regulation, to
``control or prohibit the manufacture, introduction into commerce,
offering for sale, or sale of any fuel or fuel additive for use in a
motor vehicle, motor vehicle engine, or nonroad engine or nonroad
vehicle'' if, under section 211(c)(1)(A), emission products of the fuel
or additive cause or contribute to air pollution endangering the public
health or welfare, or, under section 211(c)(1)(B), if emission products
of the fuel or additive will impair to a significant degree the
performance of an emission control device in general use. While EPA
believes that it has clear authority to regulate gasoline detergency
under section 211(c)(1)(A), the Agency also recognizes that it has such
authority under section 211(c)(1)(B).
That gasoline combustion emissions cause or contribute to harmful
air pollution is now undisputed, and a requirement for proper detergent
additization to mitigate such emissions is appropriate under the broad
authority of section 211(c). This authority also supports certain
program elements that EPA is implementing in order to make the
detergent program most effective. As explained further below, these
include a detergent registration scheme and, as explained in the
enforcement section of the preamble (Section IV), application of
certain requirements to detergent manufacturers even prior to blending
of detergent with gasoline. Public comment on EPA's legal authority to
make such requirements of detergent manufacturers is addressed in
Section IV.
EPA believes consideration of the factors under section
211(c)(2)(A) support its authority under section 211(c)(1)(A). Air
pollution from gasoline vehicles is clearly harmful. Further, while
vehicle technology can affect deposit formation, EPA does not believe
that the formation of the deposit types that are the focus of the
regulatory controls implemented today, and the associated emissions
effect, can reasonably or cost effectively be addressed by requiring
changes in vehicle design. Vehicle manufacturers have an incentive and
continue to work to minimize susceptibility to deposit formation, which
affects driveability as well as emissions. In addition, detergents are
also important to control deposits in vehicles currently in use and
prone to deposit formation which will continue to remain in use for
some time.
2. Rulemaking History
The CAA requires that EPA promulgate a rule establishing
specifications for detergent additives and requiring all gasoline to
contain detergent additives by January 1, 1995. EPA encouraged full
participation of the regulated industry and other interested parties in
the development of the rule to implement these requirements. A public
workshop was held on February 13, 1992 to initiate open discussion of
the relevant issues and EPA met with numerous industry representatives
separately to obtain their input.
The notice of proposed rulemaking (NPRM) was published on December
6, 1993 (58 FR 64213) and a public hearing was held in Ann Arbor,
Michigan on January 11, 1994. Oral testimony was heard from 6
presenters. EPA's initial intent was to accept subsequent written
public comment on the NPRM until February 11, 1994. However, in
response to industry requests for additional time, comments were
accepted until March 11, 1994. EPA received 31 written comments on the
NPRM. These comments are summarized and responded to in later sections
of this preamble.
For the reasons discussed further in Section I.C., EPA has decided
to finalize the proposed detergent gasoline program in two stages.
Today's final rule, establishing an interim detergent program, will be
in effect until replaced by the anticipated second final rule. The
latter is expected to cover the remaining issues from the NPRM as well
as issues raised in a notice to reopen the comment period.
B. Proposed Regulatory Approach
EPA proposed a performance-based detergent additive certification
program under which all gasoline distributed and sold in the United
States would be required to contain a detergent additive which, in the
context of prescribed vehicle testing, had the demonstrated ability to
meet specified standards of deposit control performance in a
predetermined series of test fuels. Fuel injector deposit (PFID) and
intake valve deposit (IVD) control performance tests and standards were
proposed that would rely on industry-consensus test procedures.
Additives meeting the detergent performance standards would qualify for
certification. These detergents would then be acceptable for meeting
gasoline deposit control requirements when used at the treatment rates
which were needed to meet the performance standards during testing.
Due to inadequate lead time for industry to complete the vehicle
testing requirements for certification, EPA proposed a simpler interim
program to be in effect January 1 through December 31, 1995. During
this interim period, all gasoline would be required to contain
detergent additives that satisfied simplified criteria, but compliance
with the certification testing program would not be required until
January 1, 1996. EPA proposed that additives could qualify for the
interim program based either on data collected to satisfy California's
detergent additive program,\3\ or on specifications on chemical
composition and additive manufacturer recommendations regarding proper
usage.
\3\Title 13, section 2257 of the California Code of Regulations.
C. Scope of This Action
As previously mentioned, this final rule implements only the
interim detergent program, beginning January 1, 1995. Full
certification requirements are expected to be promulgated by June 30,
1995 and to go into effect about a year thereafter.\4\ The requirements
of the interim program will remain in effect until replaced by the
later rulemaking.
\4\This expectation is based on EPA's estimate of the amount of
lead time which industry will require to comply with anticipated
testing requirements after promulgation of the detergent
certification program in the second final rule. See memo to the
Docket A-91-77 from Robert Johnson, entitled, ``Estimated Lead Time
for Industry to Comply with Vehicle Testing Requirements,''
September 21, 1994.
EPA is following this two-step approach for two reasons. The first
reason is to allow the industry time to complete development of a
consensus test procedure to evaluate an additive's ability to control
fuel injector deposits. At the time the NPRM was published, many of the
basic elements of the most widely used vehicle-based PFID and IVD
control test procedures were broadly accepted by industry, but standard
versions of these procedures had not been published. While the American
Society for Testing and Materials (ASTM) was actively developing
standard versions of these procedures to enhance comparability of test
results, the availability of finalized test specifications was
uncertain. EPA thus proposed versions of these test procedures based on
the most current ASTM drafts available at the time, which included many
of the improvements under consideration by ASTM. EPA also proposed to
adopt the ASTM versions of these procedures in the detergent program
final rule if the final ASTM specifications became available in time
and if they closely resembled the proposed procedures. Public comment
on the NPRM supported EPA's intent to adopt the final ASTM procedures
when available.
Since the publication of the NPRM, ASTM finalized its intake valve
deposit control procedure as ASTM D-5500, and EPA anticipates adopting
it for use under the detergent certification program without further
notice and comment. However, ASTM has not yet finalized its PFID
control test procedure, and EPA believes it is appropriate to delay
finalization of the detergent certification program until this
procedure is available (expected in late 1994 or early 1995). Adoption
of the final ASTM PFID control test procedure will result in improved
confidence in the certification test results.\5\ Consistency of EPA
testing requirements with an industry consensus standard test procedure
will also avoid unnecessary industry burdens and confusion which would
result from different regulatory and industry practices.
\5\EPA will evaluate whether changes to the ASTM PFID test
procedure are necessary prior to its adoption for regulatory
purposes, and will provide the opportunity for additional public
comment if appropriate.
The second reason to delay finalization of the full certification
program is to allow EPA an opportunity to assess concerns raised by
some commenters related to the possible incremental accumulation of
combustion chamber deposits (CCD) which may result from the use of
detergent additives designed to control PFID and IVD. EPA received
contradictory public comments on this issue. On one side, the petroleum
and additive manufacturing industries stated that the causes and
impacts of CCD are not understood well enough to warrant EPA's
implementation of any measures to control CCD at this time. These
commenters further stated that, even if the need for CCD control is
established, regulatory action should not be taken until a suitable CCD
control test procedure and standard are available.
On the other hand, automobile manufacturers claimed that the impact
of CCD on driveability and emissions is sufficiently well demonstrated
for EPA to take action. They strongly urged EPA to investigate the
additive contribution to CCD as soon as possible, with the ultimate aim
being a CCD control performance test and standard. Comments from
automobile manufacturers further stated that, in the absence of a
standardized CCD performance test, EPA should implement some interim
measure to help limit the potential for increased CCD that could result
from detergent additive over-use. To this end, the American Automobile
Manufacturer's Association (AAMA) suggested a 70mg/100ml maximum limit
on the unwashed gum level in additized gasoline, as determined by ASTM
test procedure D381. AAMA stated that a correlation exists between the
levels of unwashed gums in gasoline and the amount and type of
detergent additive present, and hence the potential for such additives
to have an adverse impact on CCD. However, comments from the petroleum
industry stated that the unwashed gum level is an unreliable measure of
detergent usage and is not well correlated with CCD formation. The
relationship between detergent use, unwashed gums, and CCD will be
addressed at length in the forthcoming reopening notice.
II. Applicability
A. Summary of Proposed Applicability Provisions
The NPRM noted that section 211(l) refers to ``any gasoline,'' and
does not distinguish between gasoline used for highway vehicles and
engines and gasoline used in nonroad applications.\6\ Therefore, EPA
proposed that detergent requirements apply to all gasoline used in
highway vehicles and engines (including both reformulated and
conventional gasolines,\7\ oxygenated gasoline, and the gasoline
component of alcohol blends such as M85 and E85), as well as gasoline
used in nonroad applications (including racing fuel and marine fuel).
EPA also proposed that gasoline for military use be covered by this
regulation.
\6\The reader is directed to the NPRM for a discussion of EPA's
legal authority regarding the types of gasolines which were proposed
to be covered by the proposed detergency requirements (58 FR 64213,
December 6, 1993).
\7\Reformulated and conventional gasolines are defined in
``Regulation of Fuel and Fuel Additives; Standards for Reformulated
and Conventional Gasoline,'' Final Rule, 59 FR 7715 (February 16,
1994).
EPA proposed that both leaded and unleaded gasoline would be
required to contain detergent additives that comply with the same
proposed requirements. In the NPRM it was noted that, while barred from
sale for highway vehicles as of January 1, 1996, leaded gasoline will
still be permitted to be sold for off- highway use, for example, in
certain construction equipment and farm vehicles. EPA also stated the
belief that the use of detergent additives would have a beneficial
impact on the emissions performance of engines using leaded gasoline.
EPA proposed that the detergent requirements would not apply to
gasoline used in internal combustion aircraft engines because they are
separately regulated under Part B of Title II of the Clean Air Act. EPA
also proposed that test fuels for research and developmental purposes
would be exempted from the detergency requirements provided that
certain requirements for exemption were satisfied (see Section IV).
B. Applicability Provisions Finalized Under the Interim Program
The detergency requirements adopted in today's rule closely follow
the proposed provisions. They apply to all gasoline, highway and offroad,
including both reformulated and conventional gasolines,
oxygenated gasoline, and the gasoline component of alcohol blends such
as M85 and E85, as well as to marine fuel and gasoline used for
military purposes. Gasoline service accumulation fuel will also be
required to comply with detergency requirements, as will the gasoline
component of alcohol blend service accumulation fuel.\8\ However,
racing fuel, aviation fuel, emissions certification fuel, and gasoline
used for research and developmental purposes will be exempted from
compliance. Different requirements for leaded gasoline will be
implemented to allow optimization of the additive used (see Section
III.C.). The reader is directed to Section III.D for a summary and
analysis of comments on the applicability of gasoline detergency
requirements.
\8\Service accumulation fuels are used to demonstrate compliance
with durability requirements during vehicle emission certification
testing.
III. Interim Program Basic Provisions
A. Background
As noted above, to allow adequate time for industry to comply with
the specific vehicle testing requirements of the detergent
certification program, EPA proposed a simplified interim program as an
available option during 1995. Under the proposal, compliance with the
full detergent certification program would not be required until
January 1, 1996. EPA estimated that the one-year duration of the
interim program would be sufficient to allow industry to complete the
testing requirements of the certification program.
Under the interim program, EPA proposed that all gasoline sold to
the ultimate consumer (unless otherwise exempted) would be required to
contain a detergent which had been registered under the 40 CFR Part 79
Fuels and Fuel Additives (F/FA) Registration Program and which: (1) Was
composed primarily of at least one, or a combination of, four chemical
classes of detergent that EPA believed to be effective in controlling
deposits based on current industry practices (polyalkyl amines,
polyether amines, polyalkylsuccinimides, and polyalkylaminophenols); or
(2) had been approved under the California Air Resources Board (CARB)
detergent certification program. Detergents that met the chemistrybased
criteria would be required to be used at least at the minimum
concentration recommended by the manufacturer for keep-clean control of
intake and fuel injector deposits, and those that met the criteria
based on CARB certification would be required to be used at least at
the minimum concentration approved in the CARB certification.
Detergents used under the interim program would be required to be
identified by an interim detergent certification number issued by EPA.
EPA proposed that an application for an interim detergent
certification number would need to be submitted to EPA containing the
following: the name of the detergent manufacturer and the detergent as
supplied by the detergent manufacturer to satisfy the standard
registration requirements of 40 CFR part 79, a complete description of
the detergent additive's chemical composition including the weight
percent of each of the components that compose the detergent package,
the minimum concentration of each component of the detergent additive
that will be used, and a suitable analytical procedure to identify the
detergent additive in its pure state.
In addition to these proposed requirements, EPA asked for comment
on whether some form of performance test data should also be required
to be submitted for detergents used under the interim program, and the
appropriate acceptance criteria for this data. EPA proposed to reserve
the right to examine any substantiating data and could deny or revoke a
detergent registration based on this review. The enforcement task of
ensuring that the proper type and amount of additive has been added to
the gasoline in the market was proposed to be accomplished primarily
through paper audit ``mass balance'' procedures rather than actual
chemical or vehicle-based testing.
The interim detergent program finalized in today's rule retains the
basic structure and intent of the proposed program, but departs from
the proposal in a number of implementation details. As was proposed,
the interim program requires precise composition and concentration
information on detergent additives which are to be used for compliance
with the detergency requirements of today's rule, as well as
consistency between this information and the additive treat rate
reported for (and used in) detergent gasoline. However, to reduce paper
flow and other administrative procedures, a detergent certification
number will not be issued by EPA to acknowledge properly registered
additives during the interim program. Furthermore, the final rule does
not contain the proposed restriction that a detergent additive must
either be CARB-certified or belong to one of four specified chemical
classes. Other departures from the proposed rule have been made, as
well.
The specific requirements of the interim detergent program as
finalized in today's rule are described in sections B-D below. The key
differences between the proposed and final requirements for the interim
program are discussed in Section D, the Summary and Analysis of
Comments. The enforcement provisions included in todays rule are
discussed in Section IV.
B. Description of Interim Detergent Program Requirements
Since CAA section 211(l) requires that all gasoline contain
detergent additive(s) prior to sale to the consumer, the direct
responsibility rests on the fuel manufacturer/marketer to ensure that a
suitable registered detergent has been added to gasoline at an
effective concentration. However, detergent manufacturers are
responsible for properly registering their detergent additives and for
providing detergent products which conform to these registrations. This
section describes how EPA will implement the registration aspects of
the interim program, and addresses the responsibilities of both
gasoline manufacturers/marketers and detergent manufacturers. This
section focuses on requirements related specifically to unleaded
gasoline. Special provisions applicable to leaded gasoline are
discussed in Section III.C.
In the NPRM, EPA proposed that any interested party (detergent
manufacturer, fuel manufacturer/marketer, or other) could take
responsibility for the informational requirements under the interim
program. EPA recognized that, in many cases, the fuel manufacturer/
marketer would likely accept most of this responsibility since it would
bear the ultimate accountability for ensuring the proper use of
detergent additives. EPA further proposed that the detergent additive
data (e.g. composition, treatment rates) would be submitted in a
separate application. However, comments indicated that much of the same
information was already required under the existing F/FA registration
program. Furthermore, in many cases, fuel marketers would have to be
dependent on data generated by additive manufacturers to comply with
the detergent information requirements.
Therefore, as described below, the requirements of this interim
program are based primarily on information items already required for
F/FA registration. EPA has selected this approach for three reasons:
(1) It utilizes an existing reporting program rather than creating a
new one; (2) it minimizes additional information submittal; and (3) it
eliminates the confidential business information (CBI) concerns raised
by additive manufacturers in their comments on the NPRM (see Section
III.E).
Requirements for Detergent Additive Manufacturers
For a detergent additive to be eligible for use in complying with
gasoline detergency requirements, its manufacturer must ensure that the
additive registration data provided under 40 CFR part 79 meets the
registration information requirements described below.\9\ To the extent
that existing detergent additive registrations do not comply with these
specifications, they must be updated prior to the January 1, 1995 start
date for the interim program.
\9\Detergents used to comply with gasoline detergency
requirements must, of course, comply with other applicable
registration requirements prescribed in Part 79, including those
recently finalized in Subpart G (see 59 FR 33042, June 27, 1994).
a. Detergent Additive Compositional Data. Pursuant to pre-existing
requirements under Sec. 79.21(a), the registration of fuel additives
requires the submittal of information on the identity and amounts of
the components of the additive product. Today's rule specifies that, to
be eligible for use in compliance with gasoline detergency
requirements, the compositional information submitted for registration
of a detergent additive must include: (1) A complete description of the
chemical composition of the detergent additive package, such that the
chemical structure of each of the components in the detergent package
can be determined; and (2) the exact weight and/or volume percent (as
applicable) of each of the components that compose the detergent
package. In addition, components of the detergent additive package
which have an effect on deposit control efficiency (i.e. detergentactive
components) must be identified as such. Specifically, the
registration must indicate which of the following chemical or other
designations pertains to each detergent-active component: (1) polyalkyl
amine, (2) polyether amine, (3) polyalkylsuccinimide, (4)
polyalkylaminophenol, (5) detergent-active carrier oil, (6) other
detergent-active component.
In the past, in registering their additives, some detergent
manufacturers have reported detergent-active components as a product of
the reaction of specified chemical reactants. Since yields of
detergent-active components from these reactions could vary from 0 to
100 percent, chemical specifications of this type are inadequate for
EPA to determine the composition of the detergent additive package. For
example, the package could contain unknown amounts of unchanged primary
reactants as well as chemical products of different molecular weight
and different side reactants. To be eligible for use after the
effective date of this rule, more precise identification of the
components of the detergent additive package will now be required. In
the case of polymer components, IUPAC nomenclature with a molecular
weight distribution should be specified.
Within a given detergent additive registration, no variation will
be allowed in the identity or concentration of any of the detergentactive
components. The identity and concentration of other components
of the detergent additive package may vary under a single registration
provided that such variability does not change the treat rate needed
for effective deposit control. Detergent additive packages which differ
in identity or concentration of detergent-active components must be
separately registered. Variability in other possible additive package
components such as the antioxidant, corrosion inhibitor, metal
deactivator, and/or handling solvent is acceptable, provided that such
variability does not affect the concentration of the active ingredients
in the additive package. It should be noted that EPA will continue to
evaluate what is an acceptable level of variability in additive
compositional data and may revise these requirements for the detergent
certification program in a later rulemaking.
b. Recommended Minimum Effective Concentration. As specified by
Sec. 79.21(d), a fuel additive registration must include the
recommended range of concentration for the additive when mixed in fuel.
To qualify for use in detergent gasoline under the requirements of
today's rule, the lower bound of this recommended range, in the case of
a detergent additive, must equal or exceed the minimum concentration
which the detergent additive manufacturer deems necessary for the
control of fuel injector and intake valve deposits. While not required
to be submitted on a routine basis, data which supports the claim of
deposit control effectiveness at this concentration is expected to be
available to EPA on request. Requirements for such supporting data are
further discussed in Section B.1.c, below.
The minimum effective concentration of the detergent additive, as
reported in the detergent registration,\10\ must correlate with the
concentrations reported to be used by the fuel manufacturer.
Specifically, the lower end of the detergent additive concentration
range listed in a gasoline registration must equal or exceed the
minimum recommended concentration specified in the respective additive
registration.\11\ Thus, it is incumbent upon the detergent additive
manufacturer to accurately communicate the recommended concentration to
his customers, in writing, for each registered detergent package. As
described below in Section III.C, different concentration
recommendations may be specified for leaded and unleaded gasoline, and,
in the case of carburetor detergents, restriction to leaded gasoline
should be indicated. If the detergent manufacturer recommends a minimum
concentration to his customers that is higher than the minimum recorded
on the additive registration, this could be construed as a potentially
fraudulent misrepresentation. On the other hand, if the detergent
manufacturer recommends to his customers a minimum additive
concentration that is lower than the minimum amount recorded on the
additive registration, then a misadditization of the gasoline would be
presumed to occur, and both the fuel and additive manufacturers might
be liable for the nonconforming gasoline. These liability issues are
discussed further in Section IV of this preamble.
\10\Detergent additive concentration must be reported in gallons
of detergent additive per gallons of gasoline, to facilitate
compliance with volume accounting reconciliation requirements (see
section IV).
\11\Exceptions to this requirement are permitted when
specifically approved by EPA, as discussed in Section III.B.2.
In an analogous case, detergent additive registrants must also
accurately communicate the recommended detergent concentration and any
usage restrictions, in writing, to their customers who are secondary
additive manufacturers. Such secondary manufacturers purchase detergent
from original manufacturers with the intent to resell the detergent,
with or without additional ingredients in the additive package. In many
instances, the secondary additive manufacturer will not know the
identity and/or concentration of the components of the purchased
additive product. However, provided with the recommended concentration
of the purchased additive, the secondary manufacturer can, in turn,
specify the proper concentration rate for his ``relabeled'' or ``reregistered''
detergent additive package. By linking registrations, EPA
will be able to ascertain whether consistent concentrations of the same
detergent are recommended by the original manufacturer and used (as a
minimum) by any related secondary additive manufacturers and,
ultimately, by the fuel manufacturers who are customers of either the
original or secondary additive manufactures.
c. Substantiation of Deposit Control Effectiveness. As discussed in
detail in the Summary and Analysis of Comments, the weight of public
comment on the NPRM supported requirements for data to substantiate
claims of detergent performance, even during the interim program.
Public comment further stated that reputable detergent manufacturers
would already have such data. Accordingly, this final rule requires
that, during the interim program, supporting data must be available to
demonstrate effective deposit control, but does not adopt specific test
procedures and standards. This approach should provide reasonable
assurance of effective deposit control performance, without sacrificing
the flexibility which manufacturers will need in order to rely on
existing data during the interim period. On a case-by-case basis,
therefore, EPA may require that test data be provided to support the
claim of deposit control effectiveness which is implicit in the minimum
recommended concentration submitted by the detergent additive
manufacturer pursuant to the F/FA registration requirements in
Sec. 79.21(d). EPA may request supporting data for a variety of
reasons, for example, as the result of a review of detergent additive
registration information disclosing an apparent anomaly in the type or
concentration of the detergent additive used.
EPA will request the supporting test data from the party who
registered the detergent additive. EPA regards the supporting test data
as substantiation of the ``recommended range of concentration'' data
which the additive manufacturer is required to submit under
Sec. 79.21(d) of the F/FA registration program. As such, EPA believes
that the regulatory authority to require this data from the additive
manufacturer derives from CAA section 211 (a) and (b). This authority
is further supported by CAA section 114, which provides that the
Administrator may require the submission of any information that is
necessary to implement the requirements of the Act from any party
subject to the provisions of the Act.
When requested, the detergent registrant must provide the
supporting data to EPA within 30 days of receipt of the request for
such data. If EPA judges the supporting data to be inadequate (or if it
is not received), EPA may suspend or revoke the eligibility of the
subject detergent for use in compliance with the requirements of this
rule and may notify all fuel manufacturers (and secondary additive
manufacturers) whose registrations contain the subject detergent of
this revocation. In addition, EPA may initiate the enforcement actions
described in Section IV.
EPA will be guided by the following considerations during the
interim program when evaluating the adequacy of data used as evidence
of detergent additive performance in controlling fuel injector and
intake valve deposits. First, during the interim program, EPA will
accept the data required by CARB to obtain a valid California detergent
certification for gasoline sold anywhere in the United States, provided
that the subject detergent was not certified by CARB specifically for
use in California Phase II reformulated gasoline (Title 13, Chapter 5,
Article 1, Subarticle 2, California Code of Regulations, Standards for
Gasoline Sold Beginning March 1, 1996). CARB detergent certification
specific to California Phase II reformulated gasoline will not be
considered adequate to support the effectiveness of a detergent
additive in gasoline sold outside the State of California.
EPA may also accept other test data to demonstrate adequate deposit
control performance, provided that good engineering practices were
followed during the conduct of the test and provided that the test
fuels were reasonably typical of in-use fuels. For example, data
collected using industry standard BMW 318i IVD and Chrysler 2.2 liter
PFID tests (including the CARB procedures) will generally be
acceptable. Other vehicle or engine tests may be acceptable, provided
that a reasonable correlation with the BMW and Chrysler tests and the
associated industry standards can be demonstrated.\12\ Bench test data
may be acceptable to support performance claims for fuel injector
deposits but not for IVD. Furthermore, the validity of bench-test data
will likely require a high level of scrutiny by EPA due to concerns
that it may not be as representative of actual in-use performance as
vehicle or engine test data.
\12\The reader is directed to the NPRM for a discussion of IVD
and PFID control test procedures. The historical industry standard
for the BMW 318i test requires the maintenance of less than 100 mg
per valve on average over the accumulation of 10,000 miles. The
historical industry standard for the Chrysler 2.2 liter test
requires the maintenance of less than 10 percent flow loss in any
injector over the accumulation of 10,000 miles. The basic elements
of these tests have been well established (driving cycle, test
vehicle, etc.). However, various laboratories have conducted these
tests over the years by following their own in-house procedures
regarding other less vital aspects of the tests. For the purposes of
the interim program, EPA will allow latitude in regard to the manner
in which these tests were performed provided that a reasonable level
of test quality was maintained per industry practice.
The test fuels used in obtaining the required supporting data must
contain the active components of the detergent additive package at no
more than the minimum concentration recorded in the subject gasoline
registration. Also, these test fuels must not contain any active
detergent components other than those recorded in the subject gasoline
registration. Any test fuel that was taken directly from commercial
refinery production stock will be acceptable for deposit control
testing. Specially refined low-deposit-forming fuels such as indolene
are not acceptable.
Other specially blended test fuels will be evaluated by EPA for
acceptability based on the following criteria. The composition of the
blended test fuel(s) used in deposit control testing should be
reasonably typical of in-use gasoline in its tendency to form such
deposits (or more severe than typical in-use fuels). As an example, EPA
will likely consider a test fuel acceptable if the key fuel parameters
identified in the NPRM as affecting a gasoline's tendency to form PFID/
IVD (sulfur, olefins, aromatics, T-90, and oxygenates) are at least at
average levels.\13\ To help account for the deposit forming tendency of
oxygenates, the test fuel(s) used for PFID/IVD control testing should
preferably contain an oxygenate (ethanol, MTBE, ETBE, TBA, etc. * * *)
at greater than 7 volume percent. Seven percent total oxygenate content
was chosen because it will permit the use of data collected on most of
the oxygenates for which waivers have been granted under Section 211(f)
of the CAA. EPA is not requiring that fuels used in testing to support
additive performance claims contain an oxygenate during the interim
program. However, EPA anticipates that testing of oxygenated gasoline
will be required under the detergent certification program and wishes
to encourage this practice under the interim program.
\13\In this regard the following national 50th percentile levels
were determined as part of the analysis performed for the NPRM:
sulfur 0.015 weight percent, olefins 8.8 volume percent, aromatics
28.6 volume percent, and T-90 335 deg.F. The NPRM contains a
detailed discussion of the method by which these values were
calculated using American Automobile Manufacturers Association
(AAMA) fuel survey data.
The test fuel evaluation criteria discussed above are significantly
less stringent than the test fuel specifications proposed for the
performance testing under the detergent certification program. However,
EPA's intent in using test fuel evaluation criteria for the interim
program is primarily to preclude the use of test data collected on
fuels that have an abnormally mild tendency to form deposits. Also, EPA
recognizes the need for manufacturers to use existing data to the
fullest extent possible, and believes that these specifications will
not disqualify most existing test data. To help ensure that this is the
case, a manufacturer may petition EPA to accept test data that does not
conform to the guidelines for acceptability described above. Such a
petition should include information demonstrating that the test data
submitted to support additive performance claims will ensure an
equivalent level of deposit control as that provided by data based on
test fuels conforming to the guidelines described above.
d. Detergent Additive Identification Procedure. EPA's enforcement
responsibilities require the ability to analyze detergent additive
samples to determine whether the composition of such additives is
consistent with the compositional information supplied by the additive
manufacturer (see Section IV). For this purpose, a suitable analytical
procedure capable of identifying the detergent additive in its pure
state is needed. Thus, EPA reserves the right to request such a
procedure from any party who has registered a detergent additive.
In the NPRM, EPA proposed that the party ``certifying'' a detergent
additive under the interim program would be responsible for supplying
the analytic test procedure. The NPRM further assumed that the fuel
manufacturer, rather than the detergent additive manufacturer, would
most often be the certifier. Public comment did not dispute the need
for EPA to have access to such a procedure. However, commenters did
point out that detergent manufacturers consider such procedures to be
confidential business information, and would be unwilling to provide
these procedures to the fuel manufacturers, who are their customers.
This final rule therefore specifies that, when EPA determines that an
identification test procedure is needed for a detergent additive, EPA
will direct its request for such a procedure to the detergent additive
registrant. Similar to the argument concerning the provision of
supporting test data by the detergent additive producer, EPA regards
the identification test procedure as substantiation of the registration
information which the additive manufacturer is required to submit under
Sec. 79.21(a). EPA thus believes that the regulatory authority to
require this data from the additive manufacturer derives from CAA
section 211 (a) and (b). In fact section 211(b)(2)(b) specifically
calls for the fuel additive registrants ``to furnish the description of
any analytical technique that can be used to detect and measure any
additive in such fuel, * * *''. EPA's authority to require the
submission of this data is also supported by the provisions of section
114 of the CAA, which authorizes the Administrator to collect any
information which may reasonably be required to carry out the purposes
of the Act from any person subject to the provisions of the Act.
The detergent registrant will be required to comply with EPA's
request for the analytical test procedure within 30 days of the
request. The procedure must be acceptable to the Administrator in its
ability to both qualitatively and quantitatively identify each
component of the detergent additive package. EPA reserves the right to
reject aspects of this procedure if the Administrator determines that
they are insufficient. EPA will evaluate the adequacy of the test
procedure by conducting such procedure, attempting to repeat the
results submitted by the additive manufacturer. To be acceptable, the
procedure must be able to provide results that conform to reasonable
and customary standards of repeatability and reproducability, and
reasonable and customary limits of detection and accuracy, for the type
of test in question. If the detergent manufacturer does not supply an
adequate procedure within the allotted time, the detergent will no
longer be eligible for use in complying with the requirements of this
rule. Fuel manufacturers (and secondary additive manufacturers) whose
registrations include the ineligible additive will be given 45 days to
switch to another additive product.
Although not required under the interim detergent program, EPA
prefers that the test procedure provided to satisfy the requirements of
this rule be a fourier transform infrared spectroscopy (FTIR) test
method which will yield a qualitative and quantitative infrared
spectrum of the detergent additive package in its pure state. As part
of such a FTIR method, an actual infrared spectrum of the detergent
additive package and each component part of the detergent package
obtained from this test method would be needed to make a full
identification possible. EPA intends to require that such a FTIR test
procedure be provided by the additive manufacturer as part of the
standard requirements of the detergent certification program to be
finalized in a later rulemaking.
2. Requirements for Fuel Manufacturers
The registration information provided by the fuel blender (i.e.,
the fuel manufacturer who adds detergent to gasoline fuel) must include
the exact trade name and manufacturer of the detergent additive product
(pursuant to Secs. 79.11(b) and (c)). In addition, except as discussed
below, the range of concentration submitted pursuant to Sec. 79.11(c)
must indicate that the gasoline contains the subject detergent additive
at a concentration no less than the minimum recommended concentration
specified in the detergent additive registration for control of
deposits. Fuel manufacturers should be aware that their existing
gasoline registrations, which list detergent additives as components,
may need to be changed to conform to these requirements, reflecting
potential changes in the additive registrations necessitated by this
rule. Accurate identification of the detergent additive being used is
critical to the validity of the fuel registration. Fuel manufacturers
must provide identifying information adequate to enable EPA to
determine which registered detergent additive product is being used by
the fuel manufacturer.
It is EPA's expectation that fuel marketers will ensure that a
detergent is effective in controlling deposits prior to purchasing the
product from the detergent manufacturer. If EPA finds that performance
claims are unsubstantiated, the fuel marketer and/or detergent
registrant may both potentially be liable for violations as described
in Section IV. EPA is aware that, as part of current good business
practice, fuel marketers generally do insist on such evidence for
themselves before purchasing the additive for purposes of blending
detergent gasoline. Consistent with current business practice, this
regulatory approach recognizes the responsibility of both the fuel and
detergent manufacturers in assuring that an effective detergent is
used.
EPA recognizes that, theoretically, the requirements discussed
above could put additive manufacturers in the position of being able to
dictate the minimum amount of their detergent additive products which
their customers (i.e., the fuel manufacturers) are required to
purchase. In practice, EPA believes that competitive forces in the
marketplace will generally prevent additive manufacturers from
inflating the minimum recommended concentration in their detergent
registrations in order to boost their sales. However, as an additional
safeguard against this possibility, the final rule contains a special
provision which permits fuel manufacturers to record and use a lower
detergent concentration than is specified in the respective detergent
registration.
Under this provision, fuel manufacturers may use a detergent
additive product at a treat rate lower than the minimum specified by
the additive manufacturer, provided that the fuel manufacturer informs
EPA in writing of the intent to use the lower concentration, and states
in this notification that data demonstrating the deposit control
effectiveness of the lower treat rate is available at EPA's request. In
exercising this option, the fuel manufacturer thus undertakes
responsibilities normally assigned to the additive manufacturer. When
requested by EPA, the fuel manufacturer must supply, within 30 days,
the data necessary to support the claim of detergent effectiveness at
the lower treat rate. In such an instance, EPA will also require that
the additive manufacturer submit data, in support of the higher treat
rate specified in the subject additive registration. EPA will then
evaluate whether the lower treat rate provides adequate deposit control
by comparing the quality and results of both sets of test data in
relation to each other and to industry-consensus practices and
standards. EPA will inform both the fuel manufacturer and the additive
manufacturer of its decision within 60 days of receipt of both sets of
data. Either party may appeal EPA's decision. If EPA determines that
the fuel manufacturer's data does not adequately demonstrate the
effectiveness of the lower detergent concentration, the fuel
manufacturer may be subject to penalties (described in Section IV) for
any gasoline which has been additized using the lower concentration.
C. Requirements for Leaded Gasoline
Although barred from sale for highway vehicles as of January 1,
1996 (under CAA section 211(n)), leaded gasoline will still be
permitted to be sold for off-highway use. Since deposit-related
emissions problems are not restricted to highway vehicles, EPA believes
that it is necessary to require a proper level of deposit control in
leaded gasoline. However, due to the less sophisticated nature of the
emissions control equipment in leaded fuel vehicles, the prevention of
deposit-related emissions does not necessitate the same level of
deposit control performance in leaded gasoline as in unleaded gasoline.
EPA agrees with public comment that a sufficient level of deposit
control can be achieved in leaded gasoline by the use of carburetortype
detergents as well as IVD/PFID detergents, at relatively low
concentrations, with a concomitant savings in additive treatment cost
(see summary and analysis of comments on this subject in Section D.1.a,
below). Therefore, this final rule allows the use of either carburetortype
or IVD/PFID detergents to comply with leaded gasoline detergency
requirements. The responsibilities of fuel and detergent manufacturers
regarding the requirements for leaded gasoline are otherwise the same
as those described previously for unleaded gasoline.
Carburetor-type detergent additives intended for use in leaded
gasoline, as well as IVD/PFID detergents (which are effective in both
leaded and unleaded gasoline) must still be registered and leaded fuel
manufacturers must use a registered detergent at a concentration that
is effective in controlling deposits. To comply with gasoline
detergency requirements, the leaded fuel manufacturer has the option of
using a carburetor-type detergent at the minimum concentration
recommended by the additive manufacturer for the control of carburetor
deposits, or an IVD/PFID-type detergent. If the latter is used, it may
be added at the minimum concentration recommended by the additive
manufacturer for IVD/PFID control or, if available, the manufacturer's
lower recommendation for carburetor deposit control. In any case, the
minimum concentration used by the fuel manufacturer must correspond to
the minimum effective concentration stated in the detergent
manufacturer's additive registration for the control of the relevant
type of deposits, unless a specific exception is allowed by EPA.
Under the same provisions described earlier in the case of unleaded
gasoline, EPA may require the submission of data by the additive
manufacturer to support the applicable minimum treatment rates
recommended in the detergent registration. As mentioned in the previous
section, if the fuel manufacturer believes a lower effective treatment
rate is supported by available data, then he may submit data to EPA
which substantiates the effectiveness of the detergent at the lower
concentration. EPA will follow the same evaluation process as described
previously in relation to treat rates for unleaded gasoline.
EPA will be guided by the following considerations during the
interim program when evaluating the adequacy of data used as evidence
of detergent additive performance in controlling carburetor deposits.
Any type of vehicle, engine, or bench test data may be acceptable for
demonstration of carburetor deposit control, provided that a reasonable
level of test quality was maintained per industry practice. Since the
control of port and throttle body fuel injector deposits requires a
greater degree of detergent effectiveness than the control of
carburetor deposits, EPA may also accept port and throttle body fuel
injector deposit control test data as adequate demonstration of an
additive's ability to control carburetor deposits.\14\
\14\See the NPRM for a discussion of the relative difficulty of
controlling port fuel injector deposits, throttle body injector
deposits, and carburetor deposits through the use of detergent
additives.
EPA prefers that carburetor deposit control test data be collected
using leaded fuels, but may also accept data collected using unleaded
fuels, provided that the data on detergent performance in unleaded
fuels can be shown to be indicative of its performance in leaded fuels.
The guidelines for evaluating the adequacy of test fuels used in
carburetor deposit control testing otherwise parallels those for IVD/
PFID control testing. As for unleaded gasoline, specially blended test
fuels will be acceptable provided they are reasonably typical of in-use
gasoline in its tendency to form such deposits (or more severe than
typical in-use fuels). As an example, EPA will likely consider a test
fuel acceptable for demonstration of carburetor deposit control if the
key fuel parameters identified as affecting a gasoline's tendency to
form carburetor deposits (sulfur, olefins) are at least at average
levels.\15\
\15\The reader is directed to the following SAE paper for a
review of data which indicates that levels of sulfur and olefins
impact a gasoline's tendency to form carburetor deposits: SAE
Technical Paper 902105, ``Deposits in Gasoline Engines--A Literature
Review'', Gautam Kalghatgi. As discussed previously, the following
national 50th percentile levels were determined as part of the
analysis performed for the NPRM: sulfur 0.015 weight percent,
olefins 8.8 volume percent.
D. Summary and Analysis of Comments
Applicability
Public comment on various aspects of EPA's proposal regarding the
applicability of the proposed detergency requirements are discussed
below by topic. There was no objection to EPA's proposal that gasoline
detergency requirements would apply to all gasoline, whether used in
motor vehicles on nonroad vehicles, except where noted.
a. Leaded Gasoline. Summary of Comments: The public comment opposed
the applicability of the proposed detergency requirements to leaded
gasoline. The comment stated that leaded gasoline would be obsolete in
1995 and that such fuels represent only a tiny share of total gasoline
used. The comment further stated that, in leaded gasoline, the use of
deposit control additives that are formulated to control fuel injector
and intake valve deposits in modern engines per EPA's proposal would
not provide benefits in improved performance or emissions control
commensurate with the added cost associated with their use. It was
stated that leaded fuels are used in older carbureted engines where the
additional detergency protection provided by the use of PFID/IVD
control additives would have no effect on performance or emissions over
that which is achieved by the use of less expensive carburetor- type
detergents. The comment further noted that it is current industry
practice to use carburetor-type detergents in leaded fuels.
Analysis and Conclusion: EPA agrees that adequate deposit control
can be achieved in leaded gasolines by the use of either carburetortype
detergents or IVD/PFID detergents. Engines that use leaded
gasoline are typically carbureted and employ less sophisticated
emissions control technology than those that use unleaded gasoline. The
control of carburetor deposits can be achieved with the use of
relatively unsophisticated and inexpensive carburetor-type detergents
at low concentrations or with either PFID or PFID/IVD control additives
at concentrations lower than required for engines that use unleaded
gasoline. In addition, intake valve deposits are not likely to increase
the emissions in engines that use leaded gasoline.\16\ However, EPA
disagrees with the comment that leaded gasoline should be exempted from
the requirements of today's regulation. Leaded gasoline will still be
available for non-road applications, and the fact that it is current
practice to use carburetor-type detergent additives does not mean this
practice will continue in the absence of regulation. Thus, EPA believes
that it would be more appropriate to tailor the detergency requirements
that must be met in leaded gasoline to provide that adequate protection
is achieved without additive overuse and undue cost. As described above
in section III.C, this final rule provides an option for leaded
gasoline, allowing the use of either an IVD/PFID detergent or one
capable of controlling carburetor deposits.
\16\For a review of published literature related to the control
of carburetor, fuel injector, and intake valve deposits the reader
is directed to SAE Technical Paper 902105, ``Deposits in Gasoline
Engines--A Literature Review'', Gautam Kalghatgi, and the NPRM.
b. Gasoline used for Military Purposes. Summary of Comments: Public
comment was in support of EPA's proposal to require gasoline used for
military purposes to comply with the proposed detergency requirements.
Comments from automobile manufacturers supported this position by
stating that many military vehicles are subject to the same deposit
control concerns as civilian vehicles. The Department of the Army in
its response to issues raised at the public workshop on the regulation
of detergent additives did not oppose the applicability of detergency
requirements to military fuels (Docket A-91-77, item I-D-01). No
comment was received from the Department of Defense (DOD) on this
issue.
Analysis and Conclusion: EPA agrees that many military vehicles are
subject to the same deposit control concerns as are civilian vehicles.
Given that there was no comment indicating otherwise, the final rule
makes gasoline used for military purposes subject to the detergency
requirements.
c. Racing Gasoline. Summary of Comments: Public comment was divided
on whether racing gasoline should be covered by the proposed
requirements. Automobile manufacturers supported their position that
racing gasoline should not be covered by stating that racing engines
are frequently rebuilt and the racing drivers take appropriate steps to
prevent the formation of deposits. The comment from the petroleum
industry that racing gasoline should be required to comply with
gasoline detergency requirements was not elaborated upon.
Analysis and Conclusion: EPA believes that, given the short
lifetime of racing engines, the frequent maintenance that is performed
on such engines, their relatively unique design, and the fact that
significant mileage accumulation must occur for deposits to form, it is
unlikely that deposits accumulate to any appreciable degree in racing
engines. Therefore, EPA believes that it is appropriate to exempt
racing gasoline from compliance with the detergency requirements
adopted in today's rule since the added cost would not be likely to
result in a commensurate emissions benefit. EPA defines racing gasoline
to be gasoline that is specially blended for racing purposes, is
segregated from other gasoline, and is delivered directly to racing
facilities. Gasoline that does not meet this definition will not be
considered racing gasoline for the purposes of exemption from the
requirements of this regulation.
d. Marine Gasoline. Summary of Comments: Public comment supported
the applicability of the proposed detergency requirements to marine
gasoline. No specific supporting details were provided to support this
position.
Analysis and Conclusion: EPA continues to believe that marine
gasoline should be required to comply with gasoline detergency
requirements. Marine gasoline is not specially formulated and is
delivered to marine filling stations by the same distribution system
that supplies gasoline to highway vehicles. Also, much of the engine
technology used in marine engines is very similar to that employed for
motor vehicles and hence similar concerns regarding the need for
deposit control are likely to be present. Many current gasoline marine
engines use carburetor technology. Leaded fuel for marine engines may
employ the carburetor detergent additive option discussed above.
Unleaded fuel using IVD/PFID additives will provide control for
carbureted and fuel injected marine engines.
e. Gasoline Used in Flexible-Fuel Vehicles. Summary of Comments:
Comment from the petroleum industry stated that available data indicate
that in-use problems with fuel filter plugging in flexible-fuel
vehicles which were suspected to be caused by an incompatibility of
gasoline detergent additives in flexible fuel vehicles are in fact
caused by the corrosion of incompatible metal parts in the fuel
distribution and dispensing system.
Analysis and Conclusion: EPA is also aware of data brought forward
in the context of investigations made by the Coordinating Research
Council (CRC) which indicate that the filter plugging in flexiblefueled
vehicles that had been attributed to the use of gasoline
detergent additives is actually caused by the corrosion of incompatible
metal parts in the fuel system. No public comment expressed any current
concerns regarding the use of gasoline detergent additives in flexiblefueled
vehicles. Therefore, there appears to be no reason to exempt the
gasoline component of alcohol blends such as M85 and E85 from
compliance with this regulation. EPA believes that this approach is
beneficial because gasoline detergent additives are also likely to
provide a level of deposit control in flexible fuel vehicles since the
technology used in such vehicles is very similar to that employed in
gasoline-fueled vehicles. Data brought forward as the result of
activity by the CRC also have highlighted the need for deposit control
in flexible-fueled vehicles to maintain proper vehicle performance.
f. Gasoline Used for Research and Vehicle Certification Purposes.
Summary of Comments: The public comment stated that gasoline used for
emissions certification purposes should be exempt from detergent
requirements since such gasoline is used only for brief periods in the
engine. The comment also stated that gasoline used for emissions
durability demonstration should be required to contain a detergent
additive. Public comment agreed with the Agency position that test
fuels for research and developmental purposes should be exempted from
the detergency requirements of today's rule. However, these comments
stated that the procedures to obtain an exemption from EPA must be
streamlined. Comments related to research exemptions are discussed in
Section IV.
Analysis and Conclusion: The applicability of detergency
requirements to gasoline used for vehicle certification was not
addressed in the NPRM. The Agency agrees with public comment that the
gasoline emission test fuel used for emission certification and fuel
economy vehicles should be exempt from the gasoline detergent
requirements adopted today. Therefore, no changes are made to the
current test fuel specifications found in 40 CFR 86.113-94(a)(1). Such
gasoline is used only for brief periods in new vehicles and hence there
is little likelihood of a deposit-related emissions impact.
No comments were received specific to methanol certification test
fuel. However, the rationale that supports exempting gasoline emissions
certification fuel from the requirements of this rule also applies to
the gasoline portion of methanol emissions certification test fuel.
Therefore, the gasoline portion of methanol emissions certification
test fuel will be exempt from the gasoline detergency requirements of
today's rule.
Today's action will require the service accumulation fuel used in
gasoline-fueled vehicles and the gasoline portion of the service
accumulation fuel used in methanol-fueled vehicles to meet gasoline
detergency requirements. This is consistent with (1) Public comment
that the emissions certification durability fuel should continue to
contain a deposit control additive package; (2) the current provisions
of 40 CFR 86.113-94(a)(2), which state that ``unleaded gasoline
representative of commercial gasoline which will be generally available
through retail outlets shall be used in service accumulation for
petroleum-fueled Otto-cycle vehicles''; and (3) the current provisions
of 40 CFR 86.113-94(a)(3) and (b)(4) which require methanol fuel used
for service accumulation of Otto-cycle and diesel-cycle methanol-fueled
vehicles be ``representative of commercially available methanol fuel''.
As previously discussed, today's regulation will require that the
gasoline portion of methanol fuel comply with gasoline detergency
requirements.
2. Interim Registration Requirements
Public comment supported the need for an interim detergent
registration program with simplified requirements to allow industry
adequate time to comply with the vehicle testing requirements and other
provisions of the detergent certification program. Comments related to
specific provisions of the proposed interim registration program are
discussed below by topic.
a. Need for the Demonstration of Both PFID and IVD Control
Performance. Summary of Comments: As a condition of certification under
the proposed detergent certification program, EPA proposed that the
ability of a detergent additive to control both intake valve deposits
(IVD) and fuel injector deposits (PFID) to specified performance
standards must be demonstrated through separate vehicle-based tests.
Public comment was mostly in favor of this approach, although one
commenter stated that requiring fuel injector deposit control testing
was unnecessary because demonstration of adequate intake valve deposit
control also ensured proper fuel injector deposit control. Although
this comment was directed at the proposed vehicle testing requirements
under the detergent certification program, it is also applicable to the
interim program requirements for supporting data to substantiate
detergent performance.
Analysis and Conclusion: For many detergent additives,
demonstration of intake valve deposit control will also ensure adequate
control of fuel injector deposits. However, some detergent-active
chemicals may be effective for IVD alone, and thus EPA continues to
believe that separate PFID control performance data is necessary. This
approach is supported by the weight of public comment, which agreed
that both PFID and IVD control performance tests are necessary to
determine if effective deposit control is achieved. In fact, ASTM is
currently completing development of a standard vehicle-based test
procedure for PFID and the Coordinating Research Council is working on
an updated PFID-test procedure for the future. These activities provide
further evidence that the affected industry also considers PFID control
performance tests to be necessary in addition to IVD tests.
b. Additive Qualification Under the Interim Program. Summary of
Comments: Comments from the petroleum and additive industry generally
supported the acceptability of CARB-certified detergent additives to
satisfy federal detergency requirements under the interim program.
Comments from automobile manufacturers stated, however, that a
certification under California's detergent additive program should not
be allowed to serve as proof of performance for non-California
gasolines after 1996, when California's Phase II reformulated gasoline
program goes into effect. These comments stated that California Phase
II reformulated gasoline is likely to have a significantly lower
tendency to form deposits than gasoline in the rest of the country and
hence demonstration of performance under CARB's program after 1996
would not provide adequate deposit control for non-California gasoline.
These comments from automobile manufacturers were primarily focused on
issues related to additive qualification under the proposed detergent
certification program but are also relevant to additive qualification
under the interim program since the interim program is now projected to
continue until June of 1996.
Commenters were divided on what criteria to apply under the interim
program for additives not certified by CARB. Comments from the
petroleum industry supported the proposed use of chemical criteria
along with the requirement that the additive be used at no less than
the additive manufacturer's recommended minimum keep-clean treatment
rate. These commenters stated that test data to demonstrate the
effective performance of detergent additives was not necessary under
the interim program. This position was not discussed in depth.
Comments from the additive manufacturing industry opposed EPA's
proposed approach for non-CARB certified additives and stated that EPA
must insist on some basis in engine or vehicle test results to support
a manufacturer's recommended minimum treatment rate. These commenters
argued that there is no established absolute relationship between
additive chemistry and deposit control performance and that belonging
to one of the four proposed chemical classes would provide no assurance
of satisfying the statutory requirement. Concerns were voiced that the
proposed chemistry-based interim program requirements, without a
requirement for supporting test data, would allow unscrupulous
manufacturers to concoct inexpensive additives for quick profit that
could have little or no efficacy in controlling deposits. These
commenters also stated that an additive with demonstrated effectiveness
in controlling deposits should not be precluded from use because it
does not belong to one of the four chemical classes.
Comments from additive manufacturers further stated that all
responsible detergent manufacturers will have test data available to
support claimed deposit control effectiveness. One commenter suggested
that EPA require at least two different tests for both IVD and PFID
control performance, both at the recommended treatment level, before an
interim certification is granted.
Analysis and Conclusion: EPA agrees with the commenters that it is
appropriate to allow the use of CARB-certified detergent additives to
satisfy federal detergency requirements in the entire United States
under the interim program, provided that the certification was not
obtained for California Phase II reformulated gasoline (RFG). EPA
agrees that the introduction of California Phase II reformulated
gasoline (RFG) requirements effective in March, 1996 may cause gasoline
sold in California to be significantly less severe in deposit-forming
tendency than gasoline used in other areas of the nation. Thus, the
introduction of California Phase II gasoline may result in CARB
certifications at a significantly lower concentration for a given
detergent relative to earlier CARB certifications. Therefore,
detergents certified under the CARB program for use in California Phase
II RFG may not provide adequate detergency protection for gasolines
sold outside of California and, under this final rule, may only be used
to satisfy federal detergency requirements in gasoline sold in
California.
EPA agrees with the additive manufacturers that the proposed
chemical compositional criteria would not adequately ensure that
effective detergent additives are used under the interim program and
could prevent the use of otherwise suitable additives unless they are
certified under CARB's program. EPA has reviewed the available
literature and cannot confirm that the proposed chemical compositional
criteria would assure detergent efficacy. Although many commonly used
detergents belong to the four chemical classes which EPA proposed would
be acceptable, relatively minor differences in composition which are
not addressed by the compositional criteria could result in a
significant change in deposit control efficiency and additive cost.
Also, it is of course possible that an effective detergent could be
introduced which does not fall into one of these four classes. Thus,
EPA agrees that claims of keep-clean fuel injector and intake valve
deposit control must be based on some form of engine or vehicle test
data.
To provide the flexibility needed under the interim program, it is
necessary to evaluate the adequacy of supporting data on a case-by-case
basis. Otherwise, if EPA were to codify strict or limited criteria by
which test data were to be evaluated for adequacy, much of the
available data could be precluded from use due to the diversity of the
deposit control procedures that have been used. This would be
inconsistent with the aims of the interim program. Therefore, EPA will
request and evaluate the adequacy of deposit control test procedures,
and quality assurance and quality control procedures used during
testing, on an individual basis, using the criteria discussed earlier.
Public comment largely supported the validity of the fuel
parameters that EPA proposed to use to define the tendency of gasoline
to form deposits (sulfur, olefins, aromatics, T-90, and oxygenates)
although there was some conflicting comment regarding the relative
importance of these parameters. Based on the general agreement
regarding the use of these parameters, EPA believes that it is
appropriate to use them to evaluate the tendency of the test fuels used
in the supporting data procedures. However, since no specific test fuel
parameters were proposed specifically for the interim program, any test
fuel that is reasonably typical in its tendency to form deposits will
be acceptable for the purposes of the interim program.
The guidelines that will be used by EPA to evaluate whether
detergent additive performance data is sufficient are discussed in
Section III.B. EPA's intention in establishing these guidelines is to
allow the use of any credible vehicle, engine, or bench test data to
support claims of additive performance under the interim rule.
c. Performance Demonstration for Different Versions of the Same
Detergent Package. Summary of Comments: Comment from additive
manufacturers stated that EPA should allow the same test data to be
used to demonstrate the performance of all versions of the same
detergent package. They stated that it is common industry practice to
vary certain minor nondetergent components in a detergent additive
package without changing the active deposit control components of the
detergent package. The commenters further stated that it would be
burdensome and redundant to require performance data on each separate
variant of a detergent additive package. While this comment pertained
specifically to the requirements of the proposed full detergent
certification program, it is also relevant to the requirements for
supporting data under the interim program.
Analysis and Conclusion: EPA agrees that separate performance tests
should not be needed for multiple detergent additive packages which
contain the same active detergent ingredients in different
concentrations, provided that the minimum recommended treat rate
specified in the registration information for each additive package
properly accounts for the variations in concentration. Specifically,
for each registered detergent package which the manufacturer intends to
support with a single set of test data, the final concentration of
active detergent ingredients (resulting when the detergent package is
added to gasoline at its respective minimum recommended treat rate)
must be no less than the minimum concentrations shown to be effective
by the testing.
In summary, any variation affecting the active detergent
ingredients of an additive package, whether affecting the composition
or the concentration of such ingredients, requires generation of a
separate detergent registration. However, separate supporting data are
needed only if the actual chemical identity of an active detergent
ingredient is changed. If only the concentration of active detergent
ingredients is changed from one detergent package to another, then
separate supporting data are not required so long as the recommended
treat rate is changed accordingly.\17\
\17\An exception to this provision is the case when an additive
manufacturer submits two registrations with the same detergent
ingredients, but with differing recommended treat rates--one for use
in controlling carburetor deposits and one for use in IVD/PFID
control. In this case, data supporting the effectiveness of the
carburetor detergent concentration could not be used as evidence of
the effectiveness of that concentration in controlling PFID/IVD.
However, it is not always possible for EPA to discern which
components of an additive package are important to deposit control
effectiveness. Detergent additive packages may be composed of numerous
components that provide different functions in addition to deposit
control. These components may potentially include: the detergent, a
carrier oil necessary for detergency action to take place, an
antioxidant, a corrosion inhibitor, a metal deactivator, and a handling
solvent. Additive manufacturers commonly vary nondetergent active
components in response to market needs and to tailor the flow
characteristics of the detergent package to seasonal variations in
temperature. Thus, this final rule requires detergent additive
registrations to specifically identify all active ingredients.
d. Reporting Requirements, Confidential Business Information.
Summary of Comments: Comments received from additive manufacturers
stated that information on the chemical composition of the detergent
additive(s), including the identity and minimum concentration of each
component in the detergent package, are highly confidential trade
secrets. Although useful to EPA's enforcement purposes, it would be
inappropriate for EPA to compel additive manufacturers to share this
data with their fuel marketer clients. The commenters suggested that,
to protect the confidentiality of trade secrets, EPA should require
fuel registration submissions to contain the name of the additive as
registered under 40 CFR part 79, and that the information needed
regarding the chemical composition of the detergent additive could then
be accessed by EPA through review of its part 79 registration files.
The comment also stated that EPA should not implement duplicate
reporting requirements, but rather should rely on registration
information provided under 40 CFR part 79.
Additive manufacturers were not opposed to the proposed requirement
that a suitable test procedure be made available to EPA to identify the
composition of the detergent additive in its pure state. However, their
concerns regarding the confidential nature of additive compositional
data also apply to additive identification test procedures, since these
procedures may be tailored to the additive type targeted for
evaluation. Thus, they objected to the proposed process whereby EPA
would seek the detergent identification procedure from the fuel
manufacturer, who would in turn be expected to obtain it from the
additive manufacturer. Finally, additive manufacturers stated that the
detergent additive treatment rate is competitively sensitive
information that should not be made part of the public record.
Analysis and Conclusion: EPA recognizes the confidential nature of
additive compositional data and agrees that additive manufacturers
should not be required to provide such information to their fuel
marketer clients. EPA further agrees that the Agency could access the
detergent registration information and, if it is adequately and
correctly identified, link it to the associated fuel registrations for
purposes of this program. However, the registration data supplied by
manufacturers under part 79 in the past has not always been of
sufficient quality, detail, and scope to allow its use for this
program's purposes. To remedy this shortcoming, the detergent
registrations submitted under 40 CFR part 79 must meet specified data
quality criteria if these additives are to be eligible for use in
complying with the detergency requirements in today's notice. For
example, additive manufacturers must meet minimum requirements on
additive compositional data, must obtain a separate registration under
40 CFR part 79 for each significantly different formulation of their
additive package, and must report their recommended minimum treatment
rate to control either PFID and IVD or carburetor deposits (see Section
III.B.1). Obviously, each detergent additive product registered by an
additive manufacturer must be assigned a unique trade name so that EPA
can properly link specific detergents to the additive information
supplied by fuel manufacturers in their detergent gasoline
registrations.
To address additive manufacturer concerns regarding the
confidentiality of detergent identification procedures, this final rule
provides that, if EPA's enforcement responsibilities call for such a
procedure, then EPA may require it to be submitted by the detergent
registrant rather than the fuel manufacturer. EPA's authority to take
this action is further supported by section 211(b)(2), which requires
the F/FA registrant to provide such information, and by section 114 of
the CAA, which provides that EPA may require the submission of
information if it is necessary to implement the requirements of the
CAA.
EPA recognizes that, to address the CBI concerns of additive
manufacturers, the availability of information on detergent additive
treatment rates should be restricted to those parties who have a need
to know such information to fulfill their obligations under this rule,
e.g., fuel manufacturers and other additive manufacturers who list the
additive as a component of their gasoline or secondary additive
product, respectively. EPA fully intends to honor this restriction,
unless enforcement and/or appeal procedures require EPA to reveal a
contested treat rate publicly.
IV. Interim Program Enforcement Provisions
A. Introduction and Overview
Today's rule adopts the general interim program enforcement scheme
proposed in the NPRM. It incorporates the following major elements:
(1) Gasoline must be additized pursuant to a part 79 detergent
registration, and must meet registration specifications as to detergent
composition, minimum detergent concentration, and use. In addition, the
detergent must comply with part 79 composition specifications in its
pure (unadditized) state.
(2) Detergent blenders (as defined by this rule) must perform
volume accounting and reconciliation procedures to determine the
accuracy of their detergent additization. The sale or transfer of
additized product that fails to conform to the detergent's part 79
minimum concentration rate, as established through the mandatory
reconciliation procedures, is prohibited. Product reconciliation
records must be maintained for at least 5 years.
(3) Each detergent equipment system measuring the amount of
detergent added to gasoline by automated detergent blending facilities
must be calibrated every calendar quarter. Such systems must also be
calibrated whenever the composition of the detergent package being
measured is changed. Calibration records must be maintained by the
blender for at least 5 years.
(4) All parties in the gasoline and detergent distribution systems
must transfer to receiving parties product transfer documents with
necessary additive information. Receiving parties have the obligation
to obtain such records. These records must be maintained by
transferring and receiving parties for at least five years.
(5) Presumptive and vicarious liability are the cornerstones of the
liability scheme for the detergent program, as they are for other major
EPA fuels programs. Certain parties will be required to establish the
existence of quality assurance, product testing, and/or contractual
oversight programs, as part of establishing their defenses to
liability.
An overview of these key enforcement provisions follows below.
Part 79 Registration Conformity
In order to be additized in conformity with the interim detergent
program, gasoline must be blended with detergent that complies with
both the chemical composition and the concentration specifications of a
part 79 detergent registration. Except as described previously in
Section III.B.2, the detergent package's concentration in the gasoline
must not be less than the manufacturer's minimum recommended
concentration as specified in the additive registration.
A detergent registered under part 79 for the control of only
carburetor deposits may be used only with leaded gasoline. If a
detergent is registered with one concentration for the control of
carburetor deposits only, and a higher concentration for the control of
port fuel injector and intake valve deposits, then the lower
concentration may only be used with leaded gasoline while the higher
concentration may be used with either leaded or unleaded gasoline.
Otherwise, during the interim program, any registered detergent, with
the exception of certain detergents certified by CARB for use in
California Phase II reformulated gasoline (see discussion in Section
III.B.c) may be used with any registered gasoline. As a caveat,
however, part 79 fuel registrations must specify the specific additive
products to be included in the fuel formulations. A fuel registration
that fails to include such specification is in violation of the part 79
registration requirements.
Today's rule addresses the problem of certain components, such as
oxygenates or raffinate, which are added to gasoline after the refining
process and must be additized at some point before being added to
gasoline to be sold to an ultimate consumer. These post-refinery
components may be additized separately from the gasoline to which they
will ultimately be added, provided that they are additized with a
registered detergent at no less than the concentration specified for
gasoline.
Under today's rule, an additized gasoline may properly be
commingled with another gasoline which has been additized under a
different part 79 registration, provided that each has been separately,
properly additized.
If a detergent blender discovers that it has under-additized a
batch of gasoline, the blender may correct the problem before the
product is transferred. The detergent blender may add more of the same
detergent that was originally added to the under-additized batch,
bringing the batch up to the compliance concentration rate, provided
the product has not been transferred, and provided that the blender
maintains documentation of the correction.
For example, if a batch of unleaded gasoline was additized at a
concentration rate applicable to the control of carburetor deposits
only (and thus restricted to leaded gasoline), the detergent blender
could add more of the same detergent so that the treat rate equals the
higher concentration specified for use of that detergent with unleaded
gasoline. This must occur prior to the product's transfer to another
party, and must be fully documented. This remedy would only be
appropriate if the same detergent was registered as effective at two
different rates for the two different products.
Volume Reconciliation
The interim detergent program requires detergent blenders to
regularly reconcile the volume of detergent used with the amount of
gasoline or post-refinery component additized. In the NPRM, this
accounting procedure was called mass balance accounting, a typical
industry nomenclature. In this final rule, however, in response to
comments discussed below, the reconciliation will be identified as
volumetric additive reconciliation (``VAR'').
Under the VAR requirements promulgated today, blenders must use a
specified formula, under which the actual concentration of detergent
used in the compliance period is compared to the correct concentration
of detergent that should have been used according to the concentration
specified in the fuel registration. Manual detergent blenders, who have
the ability to ascertain the exact amount of detergent used in each
blend, will be required to perform and record the VAR calculations for
each blend. Automated blenders, whose automated recording equipment may
not be able to record per-batch additization, will be required to
perform and record the VAR calculations on a monthly basis.
In order to ensure that automated detergent blenders can accurately
measure their detergent use, today's rule requires that these blenders
calibrate their detergent additization systems at the start of every
calendar quarter, i.e., in the months of January, April, July, and
October, and at any time that the detergent package is changed.
Whenever the required VAR procedures reveal an averaged underadditization
of the blended product, a VAR standard violation has
occurred. VAR violations also exist if investigation shows that the
detergent blender inaccurately performed the VAR calculations in a way
that masks under- additization, if VAR records are not created or
maintained as required by today's rule, and if the required calibration
procedures are not performed.
Parties should be aware that violations of today's rule can occur
outside of VAR calculations. For example, it is a violation of this
rule to blend a detergent registered only for control of carburetor
deposits into unleaded gasoline. As discussed above, such detergent
should only be used with leaded product. Similarly, it is a violation
of today's rule for any party to sell gasoline which is inadequately
additized, even though that party might not have been involved with the
VAR procedures.
As in all cases of presumptive liability under the interim
detergent rule, potentially liable parties in these situations have the
right to raise affirmative defenses. They can also assert, where
appropriate, that a violation has not happened, such as when they can
establish that proper VAR averaging procedures had been followed by the
automated detergent blender for the gasoline in question, and that no
irregularities beside low single batch detergent concentration existed.
Product Transfer Documents
Under today's rule, each transfer of gasoline, detergent or
detergent-additized post-refinery component from one party to another
must include the transfer of a product transfer document. This document
must identify the product being transferred and its additization
status, and must contain other important information to facilitate both
proper additization of the product and EPA's ability to confirm that
proper additization has taken place.
Liability and Defenses
Today's rule establishes a scheme of liability for violations that
is similar to existing liability schemes in other fuel programs
administered by EPA, such as the fuel volatility program and the
reformulated/conventional gasoline program. EPA decided to erect a
similar structure in this rule because the Agency believes that such
liability schemes have been demonstrated to work successfully in other
fuel programs.
Under today's rule, all parties in the distribution chain prior to
the point at which a violation is discovered are presumed to be liable
for gasoline non-conformities (other than VAR violations), detergent
non-conformities, and detergent-additized post-refinery component nonconformities.
In addition, each party who fits within the regulatory
definition of ``detergent blender'' promulgated today is presumed to be
liable for a violation of the VAR requirements discussed above. For
failure to meet product transfer document requirements, any party who
owns, leases, operates, controls, or supervises the facility at which
the violation was found will be presumed liable.
Any party who is held presumptively liable for a violation of this
rule can rebut that presumption by successfully establishing an
affirmative defense. In general, to establish an affirmative defense, a
party must show that it did not cause the violation and that product
transfer documents met applicable requirements when the product left
the party's control. Specific additional affirmative defense
requirements pertaining to particular parties in the gasoline and
detergent distribution chain are described below.
Under today's rule, refiners are subject to vicarious liability for
violations that occur at branded facilities, including VAR violations
as well as non-conformity violations affecting gasoline, detergent,
and/or detergent-additized post-refinery component. Branded refiners
must establish, as an affirmative defense to such liability, (1) That
they did not cause the violation, and (2) that product transfer
documents account for the product and indicate that it met the relevant
requirements. In addition, they must establish either: (1) That the
violation resulted from an act in violation of law, or of sabotage or
vandalism, or (2) that the violation occurred despite a contractual
obligation designed to prevent such violation, and that compliance with
the contractual obligation was monitored by an adequate oversight
program.
Under today's rule, detergent manufacturer is defined as ``any
person who owns, operates, leases, controls, or supervises a facility
that manufactures detergent.'' Detergent manufacturers are subject to
presumptive liability for non-conforming detergent, gasoline, and
detergent-additized post refinery components, as described above. They
can rebut the presumption of liability for such violations by
establishing an affirmative defense. The required elements of such an
affirmative defense under this rule are as follows: (1) Product
transfer documents that indicate conformity with applicable
requirements, (2) test results that indicate conformity of detergent
with applicable requirements when it left the manufacturer's control,
and (3) demonstration that adequate blending instructions were supplied
to the customer.
Under this final rule, carriers of detergent and gasoline may also
be held liable for violations, since they are an important component of
the distribution chain of detergent and detergent-additized gasoline,
and have the potential to cause violations of this rule.
Gasoline carriers are subject to liability for all violations
discovered at their facilities. Carriers of gasoline are also subject
to liability for non-conformity of such gasoline discovered downstream,
provided that EPA satisfactorily demonstrates that the carrier caused
the violation. In addition, gasoline carriers are also liable for
detergent-additized post-refinery component non-conformity and
detergent non-conformity discovered downstream, if they dispensed,
supplied, stored or transported any such component or detergent found
to be in violation, and if EPA can demonstrate that the carrier caused
the violation.
Detergent carriers are also subject to liability for certain
violations of this rule, since they have the potential to cause nonconforming
detergent to be introduced into commerce. The role that
detergent carriers play in the product distribution chain provides them
with significant control over the detergent that is subject to the
requirements of this rule.
Detergent carriers, like gasoline carriers, are subject to
liability for all violations discovered at their facilities. Under
today's rule, detergent carriers are also liable for detergent and
gasoline non-conformity discovered downstream, if they dispensed,
supplied, stored, or transported any of the detergent, or any of the
detergent in the non-conforming gasoline, and if EPA can demonstrate
that they caused the violation. In addition, detergent carriers are
liable for detergent-additized post-refinery component non-conformity
if they dispensed, supplied, stored, or transported any of the
detergent portion of the non-conforming component, and if EPA can show
that they caused the violation.
Carriers who are found to be in violation of any requirement of
this rule have the right to establish an affirmative defense. To
successfully establish an affirmative defense to liability for a
violation found at its facilities, a carrier must show that it did not
cause the violation, and that it complied with product transfer
document requirements. For violations discovered downstream, carriers
are only liable if EPA shows that they caused the violation.
Under this rule, manufacturers and carriers of post-refinery
components will not be held liable for violations. This approach is
consistent with other fuel programs administered by EPA where the
addition of a post-refinery component to gasoline is relevant, such as
the volatility and reformulated/conventional gasoline programs. In
these other programs, the responsibility to ensure the appropriate
addition of post-refinery components rests on the party additizing the
gasoline, and not on the manufacturer or carrier of such components.
EPA believes a similar approach is reasonable under today's rule, since
additizing parties are likely to have the practical ability to ensure
conforming additization of post-refinery components. It is important to
note that the composition of post-refinery components is not
proprietary information, and can be easily ascertained by sampling and
testing. Therefore, EPA is not aware of any concern that additizers
will not be able to obtain sufficient information about the composition
of post-refinery component.
EPA believes that manufacturers and carriers of post-refinery
components will have very little impact on the accuracy of the
additization of such components, unlike manufacturers and carriers of
detergents. The composition of post-refinery components is less
important to the effectiveness of this rule than is the proper
additization of the component itself and the proper blending of the
detergent-additized post-refinery component with detergent-additized
gasoline. EPA believes that the requirements promulgated today provide
sufficient control over these critical activities. Therefore, EPA has
decided not to bring manufacturers or carriers of post-refinery
components under the purview of this rule.
Exemptions
Parties who create fuels or additives for research, development or
testing purposes (including emission certification testing) are exempt
from the requirements of this rule, provided certain requirements are
met. Racing and aviation fuel will also be exempt from the requirements
of this rule, as discussed in more detail in Section IV.B.6, below.
The remainder of this section of the preamble discusses key changes
to the detergent program from the provisions proposed in the NPRM,
together with analysis of public comments on enforcement issues in the
NPRM. Comments received that impact solely upon the detergent
certification program will be addressed at the time the certification
program is promulgated.
B. Analysis of Public Comments and Significant Rule Changes
Volumetric Additive Reconciliation (VAR)
One of the areas of major concern to commenters was the proposed
product reconciliation requirements. Product reconciliation is
important in the detergent enforcement program because it is difficult
to determine compliance through sampling and testing. As previously
mentioned in the NPRM, there does not presently exist a standardized
test method to determine the identity and concentration of detergent in
gasoline. It would therefore be difficult to make a sampling and
testing program the cornerstone of detergent enforcement efforts.
Under these circumstances, required product reconciliation is a
useful enforcement tool. It will be relied on as an alternative to an
extensive testing-oriented program. EPA does, however, reserve the
right to conduct sampling and testing to determine compliance with the
interim detergent program in appropriate circumstances, such as in
determining: the conforming identity of detergent in its pure state;
the presence of lead in gasoline additized with detergent only
effectively registered for use with leaded product; and assisting in
determining whether VAR compliance standards have been accurately
attained or if non-conforming gasoline is being sold.
In the NPRM, EPA proposed that detergent blenders had to conduct
mandatory detergent reconciliations, called mass balance accounting,
using one of three specified formulas. The detergent blender was
required to use the formula applicable to the type of blending
operation it used, i.e., an automated detergent blending operation
using meters on every injector; an automated operation that did not
have meters on every injector; and a hand blending additization
operation. The automated formulas required weekly reconciliations,
while the hand blending formula required that a reconciliation be
completed for each batch of product additized. If an automated blender
altered the detergent concentration rate within the weekly compliance
period, such alteration terminated the reconciliation period and
required the start of a new period. Each formula required the detergent
blender to account for transfers of detergent and gasoline into and out
of inventory. Each formula also required the blender to record the
opening and closing volumes of detergent and gasoline used in the
accounting period.
The American Petroleum Institute (API) commented that the term
``mass balance accounting'' was inaccurate, because the proposed
procedure did not incorporate temperature adjustments for product
measurements and, without them, the accounting was actually an analysis
of volume. API proposed that the name for the required accounting
procedure be changed to volumetric additive reconciliation (``VAR'').
EPA agrees, and the interim detergent program incorporates this change.
API also recommended that EPA adopt a more generic approach to VAR
formula use, and adopt one comprehensive formula that would be
applicable to all blenders. API expressed concern that the VAR formula
should require the basic information necessary for EPA to determine
that the correct detergent concentration was being attained, while
being flexible enough to permit industry to use the additization
procedures presently in place. EPA agrees that one simplified formula
would be appropriate for all automated blenders. The final rule has
therefore condensed into one comprehensive formula the two formulas
previously proposed for VAR calculations for automated detergent
blenders. The components of this automated formula are discussed below.
a. General Description of the Automated Facility VAR Formula in the
Final Rule. Under the comprehensive formula of the final rule,
automated detergent blenders must complete an additive reconciliation
record for all of the product additized with each detergent used. At a
minimum, one VAR record must be created each calendar month for each
additive storage tank used. At the blender's option, the record may be
completed for smaller, discrete additive system units, such as for each
additive injector. If the same additive package in a detergent storage
tank is being used in different concentrations for different products,
i.e., different treat rates for different grades of gasoline, then the
automated blender will generally be able to combine the product
additized under the different concentrations in the same VAR record.
However, if the detergent has been registered with two different
minimum effective concentrations, with the lower registered
concentration being effective only for use with leaded product, then a
separate VAR record must be created for the leaded product being
additized at the lower, leaded-only rate.
Detergent blenders must indicate each detergent concentration for
which their equipment is set at the beginning of the VAR period. Any
changes in the concentration set rate(s) must either be recorded on the
VAR document, or be made available on other documentation such as
computer printouts. No concentration may be set lower than the minimum
recommended concentration specified in the Part 79 detergent
registration.
Automated blenders will be permitted under the interim program to
adjust upward from the initially set concentration rate by as much as
10 percent within the same VAR period. If a rate is altered by more
than 10 percent above the initially indicated rate, either at one time
or cumulatively, then the VAR period terminates, and a new VAR record
must be started as of that point.
Under the comprehensive formula for automated blenders, the blender
is required to note the volume of detergent used from the storage unit,
and the volume of gasoline and/or post-refinery component additized by
the detergent from the measured unit. The blender will be required to
indicate, either on the VAR form or on other documentation, such as
computer printouts, which will be made available to EPA, the
measurement figures from which these detergent volumes are derived,
i.e., the beginning and ending metered flow readings, the metered perbatch
volume readings for the period, or other comparable metered
readings; or the beginning and ending gauge inventory measurements,
with corrections for additions to the storage tank and subtractions of
unadditized product leaving the storage tank.
The actual concentration of detergent in additized product is then
calculated, and compared to the correct concentration, i.e., the
minimum concentration specified in the detergent's Part 79 registration
(or as provided in Section III.B.2). Compliance period additization in
which the actual concentration is equal to or above the specified
concentration, is in compliance with the VAR standard. In addition to
recording the comparison of the actual concentration with the Part 79
minimum registered concentration, detergent blenders, if they choose
for the convenience of their own operators, may also indicate
compliance comparison by percentage figures.
Hand blenders will remain outside the comprehensive automated
formula and will have their own formula under the interim program. The
automated formula requires monthly calculations, based on present
limitations in the automated equipment measurement and recording
capabilities of some automated blenders. Since manual blenders do not
have these equipment limitations and can easily calculate per-batch
additization, they will be required to compute VAR compliance on a perbatch
basis. EPA would prefer that all blenders conduct per batch
detergent reconciliation, since such frequent reconciliation would give
much greater assurance that each batch of additized product is
additized with at least the minimum concentration of detergent
specified in the detergent's Part 79 registration. However, the
equipment limitations of many automated blenders are acknowledged in
this rule, and automated blenders are therefore permitted to conduct
detergent reconciliations on a monthly basis during the interim period.
Hand detergent blenders require a separate formula for the
additional reason that they often do not have access to the gasoline
inventory or flow readings that are the basis of the gasoline volume
figures in the automated formula.
b. Detergent Measurement Equipment. For the sake of clarity and
simplicity, the interim program's comprehensive formula for automated
blenders will be flexible enough to be used by automated blenders using
a variety of detergent measuring equipment that is presently in use,
namely, gauge measurement equipment, meters on every injector, or
master metered equipment. The gauge system uses sight or stick
measuring gauges to ascertain the level of inventory in a tank at a
particular time. A metering measuring system is typically in one of two
configurations, i.e., either one meter per injector measures product
flow running through each detergent injector, or there is a master
meter which measures total flow, which is situated prior to the
separation of the detergent lines running to the individual injectors.
The Agency considered requiring the use by all automated detergent
blenders of metered detergent measurements in the VAR calculations,
since meters are a more accurate measurement system than gauges.
However, several commenters indicated that not all automated blenders
presently were equipped with metered detergent measuring equipment, and
EPA is not mandating the use of detergent metering during the interim
detergent program. However, the Agency encourages and prefers the use
of metered detergent measurements for the VAR calculations, and intends
to request comment in the reopening notice about implementing a
potential metering requirement in the final certification rule. This
provision would require all automated blenders to use meters to measure
detergent usage, and might also require the use of meters on each
detergent injector.
The National Petroleum Marketers Association expressed concern that
automated blenders might be required to perform detergent tank gauging
at the beginning and ending of each VAR period, whether or not their
system was also metered. This was not the intent of the proposed
formulas, and the rule finalized today clarifies that either tankgauged
or metered measurements must be the basis of the detergent
volume figures reported on the VAR record. Since there must be some
numeric measurement as a realistic basis for the reported VAR detergent
volumes, however, today's rule does require that either meters or
gauges must be used.
c. Use of Multiple Concentration Rates in One VAR Record. Arco
Refining Company commented that its additization equipment was capable
of measuring and automatically switching to a variety of set
concentration rates depending on the type of gasoline needing
additization. One detergent package was sometimes used at different
concentration rates, as needed for the different grades of gasoline
being additized. Arco was concerned because the automated formulas
proposed in the NPRM would require the creation of a new VAR
calculation period every time the concentration rate was automatically
altered. EPA agrees that this would be burdensome, and the Agency does
not desire to penalize parties for acquiring newer equipment that can
measure several concentration rates. Therefore, the interim program's
automated formula permits automated parties to utilize different
concentrations in actual usage, provided that only one physical
detergent package is being measured, and provided that each
concentration rate being used is indicated on the VAR record (except as
discussed in the following paragraph). If any of the initial
concentration rates are raised in the reconciliation period, the
blender must follow the procedures described below.
The exception to the general principle that multiple concentration
rates will be permitted to be measured in one VAR record concerns
detergents to be used with leaded product. If a detergent has been
registered with two minimum effective lowest concentrations, and the
lower of the two is to be used solely with leaded gasoline, a single
VAR record cannot be used to calculate compliance for both
concentrations. This is because the actual concentration rate attained
would have to be compared to two different lowest effective rates,
which would make the formula meaningless. In order to determine if a
VAR violation has occurred in the above circumstances, the blender
would have to complete a separate VAR record for each concentration
rate at which the detergent is registered for use. For this record to
be accurate, the blender must separately measure the detergent being
used at the lower rate. The blender could have a separate tank for the
detergent so used, or a separate meter for it, or some other way to
accurately distinguish the use of detergent at the lower concentration.
d. Detergent Concentration Rate Adjustments. The Agency is very
concerned with preventing automated blenders from compensating for
significant under-additization discovered in a compliance period by
altering their concentration rate so as to significantly over-additize
later loads in the compliance period. Additization of any load of
gasoline below the minimum concentration is not acceptable, because the
Agency wants to assure that all gasoline being sold to the consumer is
appropriately additized. Over-additization of later batches of gasoline
as compensation for prior under-additization is also inappropriate
because of concerns that over-additization may contribute to automotive
combustion chamber deposits.
To address this concern, the NPRM proposed that detergent blenders
would not be permitted in a VAR period to alter the concentration rates
that their additization equipment had been set for. In the NPRM
proposal, if any such adjustment occurred, then the VAR period was
terminated, and a new VAR period was required to be initiated.
API presented the results of an industry survey indicating that
industry presently experienced an enormous range in ability to attain a
VAR standard accurately. API suggested that EPA should institute the
use of an enforcement tolerance in determining compliance with the VAR
standard to acknowledge and account for the wide range in equipment
variation in ability to ensure full accuracy.
For reasons discussed below, the Agency has decided that the use of
an enforcement tolerance in the detergent regulatory context is
inappropriate. However, the Agency acknowledges that without an
enforcement tolerance, many detergent blenders would find it extremely
difficult to attain the VAR standard without the ability to adjust
detergent concentration rates throughout the compliance period.
Consequently, the final rule will permit limited adjustment of
concentration rates within the VAR period during the interim period.
Extreme adjustments, however, will be prohibited, so that excessive
swings in additization will not occur. In no event may any
concentration rate be altered in any compliance period higher than 10
percent over the concentration specified as the initially set rate.
The 10 percent figure was chosen because the industry VAR survey
results submitted by API reveal that at least 10 percent VAR monthly
accuracy is already obtained by many automated blending parties (73
percent of company-owned responding parties, and 37 percent of systems
operated by exchange agreement or third party terminals). Since many
detergent blenders already attain a monthly VAR accuracy within 10
percent of target, the interim program reasonably prohibits automated
blenders from altering their concentration rate above 10 percent of the
target. This provides blenders with some flexibility in meeting the
monthly compliance standard, while discouraging excessive fluctuations
from the standard per-batch additization rate.
To assure that adjustments beyond 10 percent of the indicated
concentration will not be made, the final rule requires that any
adjustment beyond the 10 percent cut-off will terminate the VAR period,
necessitating the start of a new VAR calculation. Blenders will be
required to indicate on the VAR record each set concentration rate used
at the beginning of the VAR period, and all changes to each rate that
occurred during the period must be reported on the VAR record or
otherwise be made available.
e. Reconciliation Period. EPA proposed that automated blenders must
perform at least weekly detergent reconciliations. This final rule,
however, permits monthly reconciliation periods. The vast majority of
commenters urged adoption of the longer period. They asserted that a
monthly period was more consistent with the reconciliation period
presently being used by industry and the recordkeeping period required
in the CARB detergent regulation. API presented evidence from its
member survey indicating that none of the 2,199 exchange agreement or
third party systems responding to its survey conducted reconciliation
more frequently than monthly.
The Agency has decided to accept the monthly reconciliation period
already being used by a majority of industry, rather than require a
shift to a shorter period for the interim rule. One goal of choosing
this period was to prevent lead time problems that parties might
experience in implementing a weekly reconciliation period in time for
the January 1, 1995 effective date of this rule.
EPA believes the monthly time frame provides reasonable assurance
that individual loads will be additized properly. Although monthly
averaging includes greater volumes than weekly calculations, and thus
tolerates somewhat greater inaccuracy than weekly reconciliation, the
number of additizations performed by the typical additization terminal
per month is sufficiently small to ensure the results should reasonably
approximate per-batch additization accuracy. In addition, EPA feels
that the prohibition against altering the detergent concentration in
the compliance period above 10 percent of the set concentration rate
will further assure that significant per-batch under-additization will
not occur.
However, EPA is not willing to further lengthen the VAR compliance
period. Some commenters urged adoption of a quarterly reconciliation
period, saying that a quarterly approach would be consistent with some
other EPA record keeping requirements, such as the quarterly lead phase
down and quarterly reformulated gasoline reporting requirements. EPA
does not agree that quarterly reconciliation would be appropriate for
detergent additization. First, the detergent program does not have the
reporting requirements or the exhaustively detailed reconciliation
requirements that exist alongside the quarterly reconciliation
requirements found in the reformulated gasoline program. Second, a
quarterly detergent reconciliation period would involve averaging
approximately 2,500 truckloads for the typical terminal, so that a
quarterly averaging period would not give sufficient guarantee that the
gasoline being sold to the ultimate consumer was adequately additized
as required by section 211(l). Even if the typical number of truckloads
is actually somewhat smaller, as the National Petroleum Refiners
Association argues, the large number of batches being additized over a
quarterly period in the typical terminal is too great to permit
reasonable assurance of adequate per-batch additization.
Although the Agency is promulgating a monthly reconciliation
requirement in this rule, the Agency is still concerned about assuring
as much per-gallon accuracy as possible in the final detergent
certification rule. Some ideas being considered for the certification
rule, in addition to the 10 percent concentration alteration cut off,
involve creating a weekly compliance period and/or establishing a
minimum per-gallon requirement that must be met in addition to meeting
the averaged standard within the compliance period.
f. Transfers of Unadditized Gasoline. As was proposed in the NPRM,
the transfer of unadditized gasoline from detergent blending terminals
is not prohibited under this final rule. Information about such
transfers, however, will be required to be recorded. The NPRM required
transfers of unadditized product to be accounted for within the VAR
formula. The interim program deletes this requirement from the formula
itself. Such information about transfers from inventory is only
significant to the accuracy of formulas based on inventory
measurements. The new automated VAR formula permits measurements based
on metered flow usage as well as on inventory changes. In cases of such
metered measurements, information on inventory transfers is not
relevant to the formula's accuracy. However, information about such
transfers, outside of the formulas, is required to be compiled as a
supporting document to the VAR records of all automated parties, since
such information is vitally important to EPA in ascertaining that all
product has been properly additized. In addition, any hand detergent
blender which is a terminal must also compile this information.
g. Equipment Calibration Requirements. EPA received several
comments about the quarterly calibration requirement for automated
detergent blenders proposed in the NPRM. The National Petroleum
Refiners Association urged EPA to clarify whether the calibration
requirement would pertain only to the detergent equipment meters, or
also to the injectors. The Agency clarifies in this rule that it is the
additization system, i.e., the injector flow as measured by the meters,
that must be regularly calibrated to ensure that the system's
measurements are accurate. It is the additization system's accuracy as
a whole that is important.
EPA is today finalizing the requirement proposed in the NPRM that
the automated equipment be calibrated quarterly, in spite of the
National Petroleum Refiners' request that calibration be required only
annually. The detergent rule continues the quarterly calibration
requirement because such calibration intervals should result in some
realistic compensation for the temperature-related changes in equipment
accuracy resulting from seasonal variations in detergent viscosity.
Since it would be unrealistic and expensive to require continuous
equipment calibration to compensate for every temperature-related
viscosity change, a quarterly calibration requirement would at least
give some assurance of accuracy of the VAR required measurements. It
would also give assurance of timely correction of normal variations in
equipment accuracy that occur over time.
EPA received industry comment that variations in viscosity between
different detergent packages requires calibration of the additization
equipment when detergent packages are changed, in order to maintain
measurement accuracy. In response to this comment, the final rule
requires automated blenders to calibrate their measuring equipment each
time they change the detergent package being measured.
h. VAR Enforcement Tolerance. Many parties commented on the need
for an enforcement tolerance to be used in determining VAR violations.
After reviewing these comments, EPA reaffirms the position taken in the
NPRM that enforcement tolerance for VAR violations would be
inappropriate. The Clean Air Act does not require the Agency to
establish an enforcement tolerance in the detergent program. Absent a
specific directive from Congress, the matter of enforcement tolerance
is left to the Agency's discretion, and EPA considers such a tolerance
in the VAR context to be neither necessary nor environmentally
beneficial.
The Agency has never announced an enforcement tolerance in its
fuels programs for parties with primary control over attaining
standards. Such tolerances have only periodically been established for
downstream parties who have much less ability than primary parties to
control accuracy. Furthermore, EPA fuels programs have never announced
enforcement tolerances for parties with primary control when standards
can be met through averaging, since averaging is a process that has
built-in tolerance of deviations from the standard.
While API has submitted survey data to EPA indicating that many
automated detergent blenders do not presently attain a high degree of
VAR accuracy, this information does not at all confirm that, in the
future, industry would not be able to fulfill an averaged compliance
standard if it were legally required. EPA believes industry should be
able to attain the VAR compliance standard over the reconciliation
period. The interim rule will allow detergent blenders to correct, and
even compensate for, mis-additizations that occur within the VAR
period, provided that they do so within the 10 percent rate alteration
limit. The averaging implicit in this flexibility is sufficient to
permit responsible parties to meet the standard, provided that they
implement reasonable quality control procedures. Therefore, EPA does
not believe that an enforcement tolerance is appropriate here.
An enforcement tolerance is also not needed, nor would it be
beneficial, in the hand blending situation, since hand blenders do not
have to use variable mechanical equipment in their blending.
Industry commented about the need for enforcement tolerances in
other areas involving enforcement standards proposed in the NPRM, such
as in performance testing of detergents. None of these comments pertain
directly to today's rule, since the rule promulgated today does not
require specific detergent performance tests. However, if the presence
of lead in gasoline being additized with a detergent effectively
registered for use only with leaded gasoline should become an issue,
testing of lead and phosphorus to determine the legal identity of
leaded gasoline will be conducted by the Agency according to the
specifications listed in Appendices B and A, respectively, of 40 CFR
Part 80. No enforcement tolerance has been created in the past for lead
or phosphorus testing, and none is being contemplated now.
i. Over-Additization. Under the proposed regulations, overadditization
of gasoline was considered a violation of the VAR
standard, since compliance with the proposed VAR formula only existed
if actual usage of detergent equalled the required usage. In the NPRM,
however, the Agency explained that it did not intend to treat overadditization
as a violation, since data was not available establishing
the point at which over-additization became environmentally harmful.
The final rule promulgated today clarifies this situation, and
specifies that VAR accounting compliance occurs when the actual
detergent concentration equals or exceeds the minimum concentration
specified in the detergent's Part 79 registration. This clarification
codifies EPA's intent that over-additization would not be considered a
violation of the VAR standard. Both API and Amoco had commented that
they did not support a limit on additization over the minimum treat
rate.
Some auto industry commenters expressed fears that overadditization
might result in an increase in combustion chamber
deposits. As discussed in Section I.C, EPA is concerned about this
matter, and intends to re-visit this issue in the near future. For the
duration of this interim program, however, over-additization will not
be considered a violation.
The Agency does not believe that our decision to permit overadditization
in the interim period will result in the occurrence of
significant over-additization. The expense involved with adding
detergents to gasoline should mitigate against any significant overuse
of detergents. However, the fact that over-additization cannot at this
time be considered a violation should not be construed as approval by
EPA of over-additization, since serious concerns do exist about the
potential harmful effects of over-additization.
j. VAR for Hand Blenders. EPA also received comment about the
formula proposed for hand blending detergent facilities. The National
Petroleum Refiners Association informed EPA that, typically, carrier
drivers do not have the information necessary to comply with the VAR
calculation requirements proposed in the NPRM. EPA agrees with this
comment, and has thus modified the formula for hand blending facilities
to include only information that the hand blender must possess in order
to additize properly, i.e., the amount of gasoline or post-refinery
component additized, the amount of detergent actually blended, and the
Part 79 registered minimum recommended detergent concentration rate.
Record Maintenance Requirement
a. Five Year Record Retention. The NPRM proposed that all VAR and
transfer documents required to be created under the detergent rule must
be maintained for five years. Many commenters requested that the
proposed five year requirement be reduced because it was considered too
burdensome. Western Independent Refiners Association also asserted that
the proposed retention period violated the Paperwork Reduction Act
(PRA), 44 U.S.C. Sec. 3501 et seq; 5 CFR Sec. 1320. Regulations
promulgated under the PRA state that the Office of Management and
Budget will not approve record retention requirements for periods
greater than three years, unless an Agency can establish substantial
need for a longer required retention period. Alternative retention
periods suggested by commenters included three, two, or even one year.
In this rule, EPA is promulgating the five year record retention
period. EPA is aware of the burden of retaining records for the five
year time period, and has alleviated this burden by deleting the
proposed ``place of creation'' record retention requirements in the
final rule (see next section).
The five year retention period is necessary for several reasons.
The first is the enforcement reality that there are an enormous number
of gasoline facilities subject to enforcement under this rule.
Typically, inspections at particular facilities will therefore be
widely spaced. Under these circumstances, EPA needs to be able to deter
detergent violations by having the ability to review records over a
significant period. Secondly, EPA expects that the detergent program
will be enforced, to a significant extent, through review of records,
as no standardized test has yet been developed to identify detergent in
gasoline. In the absence of the ability to conduct extensive testing,
records become extremely important in determining violations, and the
Agency needs to have extensive record review ability to effectively
enforce the program. Finally, the five year period is reasonable
because it corresponds to the five year statute of limitations typical
for fuels enforcement violations. Pursuant to the regulations
implementing the Paperwork Reduction Act, 5 CFR 1320.6, EPA believes
that these factors demonstrate that there is substantial need for
record maintenance beyond three years.
b. Place and Manner of Record Retention. The NPRM proposed that
records must be retained in the place that they were created. It
further proposed that VAR records must be maintained together with the
transfer documents for the product covered by the VAR records.
Several commenters argued that industry should be able to maintain
records centrally, or in any appropriate place, as long as the records
were made available to EPA when requested. These commenters felt the
proposed requirement that records be maintained at the facility where
created was inconsistent with current business practices and was unduly
burdensome. EPA agrees that the place of record retention should be
left to the discretion of the regulated party, provided that the
records are available for EPA inspection. The final rule reflects this
revision.
National Petroleum Refiners Association disapproved of the proposed
requirement that product transfer documents be maintained together with
the mass balance (VAR) records with which they are associated. The
National Petroleum Refiners argued that this requirement would
necessitate a massive amount of burdensome sorting and collating of
records. The intent of the proposed requirement was to help EPA in its
auditing of the VAR records, by making easily accessible some of the
primary records that support the validity of the VAR calculations. EPA
agrees, however, that this collating requirement would produce
significant space and labor costs for industry. Since other EPA fuels
enforcement programs are effective without such a requirement, EPA has
decided to delete this collating requirement from the interim detergent
program.
Transfer Documentation
EPA proposed that product transfer documents be created and
transferred with each transfer of detergent, gasoline, and postrefinery
component. The product transfer documents would identify the
product and provide important information about the product.
Several parties had comments about the proposed product transfer
document requirements. Unocal Corporation argued that product transfer
documents should not be required to be maintained at all, since the
Agency was requiring mass balance (VAR) records to be created and
maintained. Presumably, Unocal believed that VAR records documenting
detergent blending would be sufficient to ascertain detergent program
compliance. Western Independent Refiners Association made a similar
argument that the CARB requirement of monthly compilation of suppliers
and purchasers should be an adequate, less burdensome substitute for
maintaining product transfer documents.
EPA disagrees with these comments. First, EPA has authority to
require that regulated parties provide product transfer documents when
they transfer detergent, gasoline, or detergent- additized gasoline to
another party. Section 211(1) requires EPA to establish specifications
for detergent additives. To ensure that detergents meet the
specifications promulgated today, it is necessary to require transfer
documents that properly identify the product to be provided with each
transfer of the product.
In addition, section 211(c)(1) allows EPA to control the sale of
any fuel or fuel additive if the Administrator determines that
emissions from such fuel or fuel additive cause or contribute to air
pollution that may reasonably be anticipated to harm the public health
or welfare. As stated below in Section IV.B.4.d., this provision allows
EPA to require that gasoline be additized to reduce harmful emissions.
To ensure that gasoline is properly additized, it is necessary for EPA
to require all parties to provide transfer documents that identify the
product whenever the product is transferred to another party. Such
documents are necessary to provide important information to receiving
parties about blending restrictions. Further, transfer documents can
establish the existence of violations that occurred prior to the
detergent blending process, such as improper labelling of gasoline or
detergent. An analysis of VAR records would not indicate such
violations. Product transfer documents are an essential part of the
primary records which can be used to verify the validity of the VAR
records. EPA's experience conducting lead phase down audits confirms
the necessity of assuring the retention of the primary records which
are the basis for figures contained in reconciliation records.
Product transfer documents are also necessary to provide important
information to receiving parties about blending restrictions.
Furthermore, transfer documents can establish the existence of
violations that occurred prior to the detergent blending process, such
as improper labeling of leaded product. An analysis of the later VAR
records would not detect such violations.
Finally, EPA does not expect the transfer document requirement of
this rule to be unduly burdensome to industry. The reformulated
gasoline rule already requires these documents, and transfer documents
are already routinely transferred by industry in many product
transactions. Typically, the added burden of this requirement will only
involve some additional data requirements on already existing
documents. Thus, this rule contains requirements for both product
transfer documents and VAR records.
Western Independent Refiners Association raised another concern
about product transfer documents. The Western Refiners advised the
Agency that fuels and fuel additives sent through pipelines are not
always accompanied by documentation. These products are often fungible
and they are not transported in discrete packages. Western Refiners
argued that requiring the transfer of a product transfer document at
the same time as the physical transfer of such product would be
burdensome to those parties not presently simultaneously transferring
both the product and the document.
EPA agrees that some parties in the gasoline distribution system
may not presently transfer documentation at the same time as they
physically transfer the product to another party. The Agency's position
is that the information required by this rule to be supplied on the
product transfer document is important to proper additization. It thus
must be supplied to the receiving party in such manner, and within such
time, as to give adequate notice of the relevant information. The
Agency therefore believes that contemporaneous transfer may not always
be necessary, although document transfer at or near the same time as
the transfer of the product is expected.
It is important to clarify that the detergent program only requires
the transfer of a product transfer document when custody or title to
product is transferred from one party to another party. Such a document
is not required to be created when product is merely being transferred,
or even commingled, within one party's own organization.
As a further clarification, this final rule does not require
transfer documents to physically accompany the product they cover at
all times, as was a concern of one commenter. Parties who receive
gasoline, detergent, or detergent-additized post-refinery components
from other parties and who have received the transfer documents for
such products, will be expected to produce, for EPA inspection, product
transfer documents for any such product in their possession. The
transfer documents need not, however, be attached to or stored in the
same physical location as the product. Receiving parties must be
prepared to account for product as it passes within their
organizational structures, however, in order to establish that they are
accurately producing the applicable transfer documents when requested.
The product transfer document requirements promulgated in this rule
are much simpler than those proposed in the NPRM, since this rule does
not contain certification restrictions. For example, gasoline transfer
documents in the interim period need not include fuel-specific or PADDspecific
information. Furthermore, product transfer documents for
additized gasoline or post-refinery component are not required to
identify the specific detergent used to additize the product. This
requirement was deleted in response to an industry lead time concern
about being able to implement this requirement in the product document
software in time for the January 1, l995 detergent rule implementation
date.
Several parties commented about the required contents of product
transfer documents. Koch Refining Company was concerned about the need
to identify on a product transfer document each component base gasoline
when several base gasolines have been commingled. EPA agrees that such
multiple identification would be burdensome and unnecessary. In the
interim program, only the type of regulated product, i.e., base
gasoline, detergent-additized gasoline, detergent, or detergentadditized
post-refinery component, will be required to be listed. Thus,
if product contains commingled base gasolines, the transfer document
would only need to identify the product as base gasoline. However, if
different types of covered product, such as base gasoline and
detergent-additized ethanol, are added together, then the transfer
document for the combined product must identify each of the combined
components. It is necessary in the interim program rule promulgated
today for the regulated parties and the Agency to know if unadditized
product has been added to additized product.
The Chemical Manufacturers Association (CMA) urged EPA to clarify
the proposed requirement to list ``identity of product'' on the
transfer document. With this requirement, EPA intended that the generic
type of transferred product regulated under the detergent rule must be
specified, i.e., base gasoline, detergent-additized gasoline,
detergent, etc. See Sec. 80.158(a)(5).
CMA further urged EPA to delete the requirement that time of
transfer be listed on the transfer document. In the interest of
streamlining transfer document contents, the Agency agrees to this
request, especially in light of the fact that the reformulated/
conventional gasoline program has also deleted this requirement. Date
of transfer, however, is still required to be listed on each product
transfer document.
Product transfer documents for leaded gasoline must identify the
product as containing lead or phosphorus. This requirement is necessary
because detergent registered for use only with leaded gasoline cannot
be used with unleaded gasoline, as described earlier in this preamble.
Such detergents can only be blended into gasolines whose transfer
documents identify them as leaded.
Finally, API requested that EPA allow the use of approved product
codes on transfer documents, as a means of compactly presenting the
information required by the regulation. The intent is to streamline the
space requirements for these documents. EPA appreciates industry's
concern about lack of space on commercial documents and will consider
special requests by regulated parties to use product codes on transfer
documents. To be considered, such requests must demonstrate that all
required information items will be included and that the information
can be easily accessed and decoded by EPA.
Liability Issues
a. Presumptive Liability. The detergent rule's presumptive
liability scheme is modeled after, and substantially similar to, the
liability scheme already existing in previously-established EPA fuels
programs, such as lead contamination, volatility, and diesel
desulfurization, and in the reformulated/conventional gasoline program
which is soon to be implemented. The rationale for the imposition of a
presumptive liability framework is the same for the detergent rule as
for the other rules. Typically, many parties handle and control
gasoline, detergent, and detergent-additized post-refinery component.
Much of the product is also fungible. It will, therefore, often be
difficult for EPA to determine which party has caused a detergent
program violation.
EPA must have the ability to hold presumptively liable all parties
in the gasoline and detergent distribution networks that are involved
in a particular violation, in order to effectively enforce the rule
when multiple parties may have caused the violation. EPA's previous
experience indicates that this type of enforcement scheme is highly
effective. The comprehensive threat of liability is an incentive to all
parties to comply with the regulation, and once a violation is found,
to cooperate in determining which party actually caused the violation.
Several parties have commented that the detergent program should
not be based on a presumptive liability scheme since this program is
different than the other fuels programs which have this type of scheme.
According to these commenters, detergent is typically blended into
gasoline downstream, prior to transfer of the gasoline to the retail
outlet. These commenters argue that such downstream additization means
that upstream parties, contrary to the situation in other fuels
programs, cannot cause detergent program violations. Therefore, they
assert, upstream parties should not be held presumptively liable for
detergent program violations, and liability should only be imposed if
EPA can establish actual responsibility.
EPA agrees with the commenters that gasoline is typically additized
at a terminal prior to its transfer to the retail outlet. EPA
disagrees, however, with the further assertion that detergent program
violations cannot be caused by upstream parties. Upstream parties may
cause gasoline non-conformity violations in a variety of ways. For
example, they may fail to indicate on a product transfer document that
the subject gasoline is leaded, and they may fail to provide accurate
information about blending restrictions to detergent blending parties.
Upstream parties may also cause gasoline, detergent, or detergentadditized
post-refinery component non-conformity violations by
improperly manufacturing detergent or commingling it.
Upstream parties may thus cause detergent program violations in a
multitude of ways and circumstances, and all the parties in the
gasoline and detergent distribution system have the potential to cause
such violations. Given the multitude of potential causes of detergent
program violations, and given the fact that it is the regulated parties
themselves who have the most knowledge of, and ability to know what
happens in their distribution system, EPA believes that the imposition
of a presumptive liability scheme is as essential in the detergent
program as it is in the other EPA fuels programs. The interim program
rule promulgated today, therefore, continues the NPRM's presumptive
liability scheme.
In the case of VAR violations, however, upstream parties are
relieved of presumptive liability under today's rule, because detergent
blenders will typically be solely responsible for the accuracy of their
own detergent blending and VAR calculations. This issue may be
revisited, however, when the certification program final rule is
issued, since other parties could cause VAR violations in specific
circumstances. These circumstances include the failure of upstream
parties to provide adequate blending instructions, and the
participation and collusion of other parties in intentional misadditization
by a detergent blender.
(1) Detergent Manufacturers and Detergent Distributors. CMA
commented that, even if EPA has the authority to regulate detergent
manufacturers, they should not be subject to presumptive liability for
violations that are discovered downstream, because they do not retain
sufficient control over the detergent to cause such violations once it
leaves their facility.
EPA does not agree with CMA's argument. The presumptive liability
scheme in today's rule, as is true with similar schemes found in other
EPA fuels programs, is not dependent upon the control upstream parties
may have over downstream parties. Control over the activities of
another is the basis for vicarious liability. Detergent manufacturers
will not be subject to vicarious liability under today's rule.
On the other hand, the basis of presumptive liability in the EPA
fuels programs, including today's rule, is that a multitude of parties
have the ability to cause a fuels program violation, given the fungible
nature of gasoline and the extensive number of parties typically
involved in its distribution. Given the difficulty in establishing
which party actually caused a violation under these circumstances,
presumptive liability needs to be imposed on all parties who could
cause the violation. Detergent manufacturers can cause detergent
program violations discovered downstream in a number of ways. For
example, they may improperly manufacture the detergent. In addition,
they may fail to properly identify the detergent on product transfer
documents, or to provide accurate blending instructions. Therefore, it
is appropriate to include detergent manufacturers in the presumptive
liability scheme of today's rule.
Further, detergent manufacturers will not be required to
demonstrate, as an independent element of an affirmative defense to
liability for a detergent rule violation, that they did not cause the
violation. EPA believes that the demonstration that: (1) The
manufacturer provided proper product transfer documents; (2) testing
when the product left the manufacturer's control indicated compliance
with registration specifications; and (3) the manufacturer provided
accurate written blending instructions about minimum concentration
requirements and, where relevant, leaded gasoline use restrictions, is
sufficient in most situations to effectively establish that the
manufacturer did not cause the violation.
The Agency, however, needs to acknowledge and provide for the fact
that unusual situations will exist in which a detergent manufacturer
could cause a violation even though it has established all the required
elements of an affirmative defense to liability for that violation. For
example, situations could arise in which there was complicity on the
part of the manufacturer in intentional downstream mis-additizations,
or in which the manufacturer provided inaccurate oral instructions.
Therefore, under today's rule, manufacturers will be liable for
violations even when the above affirmative defense documentation
elements are satisfied, if the Agency can establish that the detergent
manufacturer actually caused the violation. This provision is necessary
to ensure that a manufacturer who actually causes a violation does not
escape liability for that violation, which recognizing that most
manufacturers who meet the requirements of the affirmative defense
stated above will not have caused downstream violations. EPA does not
believe that any regulated party who actually causes a violation should
ever escape the imposition of liability for that violation.
In the NPRM, EPA proposed that all parties in the detergent
distribution system, including distributors of detergent, be subject to
presumptive liability for non-conformity violations affecting
detergent, detergent-additized gasoline, and detergent-additized postrefinery
component. EPA received no comments disputing the imposition
of such liability on detergent distributors. Recognizing that detergent
distributors may cause nonconformity violations in a number of ways,
EPA has retained the proposed detergent distributor liability scheme in
the final rule. Examples of such violations include commingling of
mislabeled detergent and transfer of inaccurate blending instructions.
(2) Detergent and Gasoline Carriers. The Truck Carriers correctly
point out that the proposed carrier liability for violations discovered
downstream is different than, and inconsistent with, carrier liability
under the volatility and reformulated/conventional gasoline rules.
Under those programs, carriers are only held liable for violations
discovered downstream when EPA can prove that they caused the
violation. In the proposed detergent program, however, carriers were to
be presumed liable for downstream violations.
EPA agrees that this inconsistency is inappropriate, since
carriers' legal relationship with their products is the same in the
detergent situation as it is in other fuels programs. Therefore,
carrier liability for downstream violations is changed in this final
rule to be consistent with the other programs. Gasoline carrier
liability under the volatility program, which is the model for carrier
liability in today's rule, was upheld in the National Tank Truck
Carriers case, supra.
b. Liability for Failure to Comply with VAR Requirements.
Commenters expressed concern regarding who EPA would hold responsible
for performing VAR accounting procedures, and who EPA would hold liable
for violations resulting from failure to comply with the requirements
for such procedures. Commenters noted that parties commonly enter into
arrangements concerning the manner in which detergent is blended into
gasoline. Therefore, for any single blending operation, several
different parties may separately own, lease, operate, control, and/or
supervise the blending, and all such parties would be considered
blenders under the proposed regulations.
EPA is aware of this situation, and intends that all parties who
control or have the power to control the product and/or its
additization should be held responsible for compliance with VAR
requirements under today's rule. In the other fuel programs
administered by EPA, the definitions of various regulated parties are
sufficiently broad to include several types of persons or
organizations. For example, the definition of ``oxygenate blender'' (40
CFR 80.2(mm)) could include a branded refiner, independent terminal
operator, carrier, or other party. Under these other fuels programs,
EPA may hold several parties, all of whom fit within the relevant
definition, liable for the same violation, and may collect the full
penalty amount from each such party. The reader is referred to the
discussion of liability in the reformulated/conventional gasoline
rulemaking (59 FR 7777).
In the reformulated/conventional gasoline program, EPA stated that
it would not require multiple responsible parties to comply with the
same requirement. EPA intends to take a similar approach under this
rule, and does not intend to require multiple blenders to fulfill VAR
requirements for a single blending operation. However, if VAR
requirements are not fulfilled, all parties who qualify as blenders
under the definition promulgated today will be presumed liable as
discussed above.
EPA expects that parties will enter into contractual agreements
with other parties to perform the required VAR calculations and
equipment calibrations, and to establish adequate quality assurance
programs. As part of raising an affirmative defense, a detergent
blender may, where appropriate, establish that it reasonably relied on
another party to fulfill the VAR requirements of this rule. Of course,
parties have the legal right to establish an indemnification system
among themselves if penalties are imposed.
The National Tank Truck Carrier Association (``Truck Carriers'')
submitted a comment to EPA stating that carriers should not be held
liable for detergent blending violations, since they merely loaded the
blend components according to the product owner's instructions. EPA is
aware that, in many instances, detergent manufacturers and other
parties expected to obtain detergent registrations do not actually
blend the detergent into the base gasoline. This blending is often
performed by distributors, refiners, carriers, and other parties. Thus,
many detergent blenders must obtain information from other parties
regarding the proper treat rate and any other applicable blending
limitations.
However, EPA believes that carriers who blend detergent into
gasoline, even if they do so pursuant to manufacturers' instructions,
can cause violations, and should therefore be included in the liability
scheme under today's rule. As discussed above, EPA lacks the ability to
adequately determine the cause of a particular violation, and will thus
impose liability on all parties, including carriers who are detergent
blenders, who could have caused the violation. Carriers who blend
detergent into gasoline can cause such violations in several ways:
improper commingling of products, misdelivery, improper identification
of products, and failure to obtain or follow instructions provided by
manufacturer. Further, to ensure that carriers who blend detergent into
gasoline obtain proper blending instructions, detergent blenders must
demonstrate possession of adequate written blending instructions as
part of an affirmative defense to liability. Such instructions should
specify the minimum recommended detergent concentration, as specified
in the registration. In addition, the instructions must state whether
the detergent is registered for use at that concentration only in
leaded gasoline.
Detergent blenders who purchase detergents from other parties may
have sufficient influence over the sellers to insist on the receipt of
this necessary information as a condition of purchase. However,
carriers who are detergent blenders may not have such purchasing or
contractual power, but must depend on their clients, the owners of the
detergent, to provide adequate blending instructions. Therefore, EPA
will require detergent blenders to demonstrate, as part of establishing
an affirmative defense to liability, that they either supplied or
obtained, depending on their position in the distribution chain,
appropriate written additization instructions. The reciprocal nature of
this duty satisfies the requirements of National Tank Truck Carriers v.
EPA, 907 F.2d. 177, 185 (D.C.Cir. 1990). In this case, the court
refused to allow EPA, in its fuel volatility regulations, to require
carriers to obtain documents from shippers as part of establishing the
carrier's affirmative defense to liability, unless EPA also imposed a
reciprocal requirement on shippers to supply their carriers with such
documents.
Of course, if a detergent blender believes that a violation
resulted from inaccurate blending instructions supplied to the blender,
the blender could demonstrate that as part of establishing an
affirmative defense to liability for the violation. As always, EPA will
review all the relevant facts and circumstances of a specific
enforcement case to determine whether the party had actual culpability
in that situation.
The Truck Carriers commented that gasoline carriers should not be
held liable as blenders, even if they add detergent to gasoline, since
carriers typically follow instructions provided by the owner when
blending detergent into gasoline. The Agency agrees that when gasoline
carriers blend detergent into gasoline, they typically do so pursuant
to the product owners' instructions. However, EPA does not agree that
this reliance on the instructions of others means that gasoline
carriers cannot be considered detergent blenders. Such carriers, like
any other party, will be considered a detergent blender under today's
rule if they own, lease, operate, control or supervise the blending
operation of a detergent blending facility, including a truck (see 40
CFR 80.139(j)).
EPA expects that gasoline carriers will be considered detergent
blenders under today's rule in truck hand-blending situations, as will
the shippers who control the product and provide the blending
instructions to the carriers. Gasoline carriers may also be considered
detergent blenders in automated blending situations, depending on the
degree of control they exercise over the automated detergent blending
process. The situation is analogous to the ethanol blending process
under the volatility regulations. In many instances in the volatility
program, gasoline carriers have been considered ethanol blenders,
especially in hand blending situations.
c. Liability for Inadvertent Violations. Western Independent
Refiners commented that only the knowing sale or transfer of
noncompliant product should be the basis of liability under this rule.
EPA disagrees. Knowledge of non-compliance has never been the
prerequisite for liability in any of the EPA fuels programs. Since many
detergent program violations could, and probably will, be caused by
negligence or error, it would be counter-productive for the Agency to
tolerate mis-additization merely because it is inadvertent. For the
Agency to do otherwise would discourage parties from instituting the
quality control procedures necessary to ensure compliance.
Furthermore, if parties unknowingly sell or transfer non-conforming
product that is later found to be in violation, they will not be
treated unfairly under the detergent rule. First, as mentioned above,
if the violation is a VAR violation that is discovered through an audit
of VAR calculations, only detergent blenders are presumed liable in
this interim period. Even if the violation is a detergent program
violation not discovered through the VAR calculations, parties will
always have the right to establish that they did not cause the
violation, as part of an affirmative defense to liability.
The Western Refiners further commented that liability should not
attach if parties contracted to avoid liability. EPA's response is that
the Agency is not bound, and should not be bound, by contracts between
private parties that seek to avoid the imposition of liability imposed
by regulations. However, parties may legally decide between themselves
about private indemnification if liability is imposed. Parties may also
contract between themselves as to the fulfillment of regulatory
responsibilities. If these responsibilities are not actually fulfilled,
however, each party subject to them faces liability if a violation is
found.
The Western Refiners also argued that a party should not be subject
to liability for violations in situations where the party relied on
misrepresentations of another. EPA again disagrees. If a party believes
a detergent program violation was caused because the party relied on
improper blending instructions or other misrepresentations of another,
the potential respondent can assert this fact as evidence of lack of
causation of the violation, as part of its affirmative defense. EPA
will review all such relevant information in determining if the
respondent has established its affirmative defense.
d. Detergent Manufacturer Liability: Legal Authority. EPA proposed
to include manufacturers of detergent additives within the presumptive
liability scheme of this rule. In the NPRM, EPA claimed authority to
regulate detergent manufacturers under CAA sections 211(l) and
211(c)(1), as well as under section 301(a). CMA strongly objected to
EPA's proposed imposition of liability on detergent manufacturers, and
claimed that EPA did not have the authority to regulate detergent
manufacturers under the Act.
EPA disagrees. First, section 211(l) directs EPA to promulgate
regulations ``establishing specifications'' for detergent additives. In
today's rule, the Agency is exercising its authority to set
specifications by insisting that detergents be properly registered
under Part 79, and that registrants provide upon EPA request
information required to substantiate the registration information (such
as test procedures for identifying the claimed components of the
registered product).
To establish effective detergent specifications, it is reasonable
to include the manufacturer of the product that must meet the required
specifications within the scope of the regulatory scheme. The
manufacturer is in the best position to determine whether the product
meets the regulatory specifications. Therefore, EPA believes that
Congress did not intend to prohibit EPA from regulating the very party
who has primary control over determining whether the regulatory
specifications are met. This is especially true since detergent
manufacturers typically claim that the chemical identity of a detergent
package is confidential business information. The detergent
manufacturer, therefore, may be the only non-governmental party with
the ability to determine whether its product conforms to the applicable
specifications.
Section 301(a) of the Act provides EPA with additional authority to
regulate detergent manufacturers, by providing EPA with the general
authority to promulgate such regulations ``as are necessary to carry
out'' the Agency's functions under the Act. EPA believes that it is
necessary to regulate detergent manufacturers in order to effectively
implement the requirements of section 211(l). As explained above,
detergent manufacturers are in the best position to ensure that their
product meets the specifications that EPA is required to promulgate
under section 211(l). Therefore, it is necessary for EPA to impose
certain obligations on detergent manufacturers in this rule. Although
manufacturers do have a business incentive to respond to their
customers' desire to use detergent that complies with EPA requirements,
EPA does not believe such a market incentive is sufficient to ensure
that the product meets the applicable requirements. Of course,
liability will attach only where problems arise.
Further, to effectively regulate detergents, it is necessary to
regulate all parties in the chain of distribution of detergents and
detergent-additized gasoline who could cause violations of this rule,
especially since, in some cases, EPA may not be in a good position to
determine the cause of a particular violation. EPA believes that it is
possible for detergent manufacturers to cause violations of today's
rule. For example, if detergents are manufactured incorrectly, they may
not provide the expected degree of deposit control. In addition,
detergent manufacturers may improperly label the product, or may fail
to provide adequate instructions. Finally, downstream parties rely on
the manufacturer to properly produce and identify a detergent additive.
In addition, EPA believes it has authority to regulate detergent
manufacturers under section 211(c)(1) of the Act. This provision states
that EPA may, under certain circumstances, control or prohibit the
manufacture, introduction into commerce, offering for sale, or sale of
a fuel additive. CMA concedes in its comments that section 211(c)(1)
provides EPA with the authority to regulate gasoline for the purpose of
reducing harmful emissions from gasoline, and to require that gasoline
contain detergent additives that would help control such emissions.
However, CMA states that section 211(c)(1) does not provide EPA with
authority to regulate manufacturers of detergents, since this
regulation is not directed at controlling harmful emissions from
detergents.
EPA disagrees that its authority under section 211(c) is limited to
regulating only marketers and producers of gasoline. Section 211(c)(1)
grants to EPA the authority to ``control or prohibit the manufacture,
introduction into commerce, offering for sale, or sale of any fuel or
fuel additive * * * if in the judgment of the Administrator any
emission product of such fuel or fuel additive causes or contributes to
air pollution which may reasonably be anticipated to endanger the
public health or welfare.'' The requirement that gasoline contain
detergent additives is intended to reduce harmful emissions from
gasoline, and is therefore a ``control'' on the manufacture and sale of
gasoline within the meaning of the term as used in section 211(c)(1).
In Amoco I, supra, the D.C. Circuit upheld EPA's promulgation of an
affirmative unleaded gasoline marketing requirement as a proper
exercise of section 211(c)(1) authority. Under EPA's unleaded gasoline
regulations, retailers were required to sell at least one grade of
unleaded gasoline at their retail outlets. The court stated that this
requirement was a ``control'' on the sale of leaded gasoline (which
impairs the emission control system), since it effectively prevented
retailers from selling leaded gasoline unless they also offered for
sale at least one grade of unleaded gasoline. In addition, EPA had the
authority to impose such a requirement to assure the availability of
unleaded gasoline.
Similarly, under today's rule, EPA is promulgating a control on the
manufacture and sale of gasoline by requiring all gasoline to contain
detergent additives at a concentration designed to control the
formation of deposits which could cause increased emissions. In
addition, this regulation is designed to ensure that properly additized
gasoline, which will result in reduced emissions of harmful pollutants
compared to unadditized or improperly additized gasoline, will be
available for consumer use. For the same reasons, EPA believes it also
has authority to regulate distributors of detergent, under sections
211(l), 211(c), and 301(a).
Finally, sections 114 provides EPA with authority to require
detergent manufacturers to register detergent additives, and to submit
certain information upon EPA request. Section 114 grants EPA broad
authority to require the submittal of any information from any person
subject to the requirements of the Act for the purpose of enforcing
those requirements. This provision further supports EPA's authority to
require detergent manufacturers to submit supporting data in order to
receive detergent registration, and to submit test data as part of
establishing an affirmative defense to liability. To ensure that
gasoline is properly additized with detergent, it is necessary for EPA
to have information supporting the manufacturer's recommended detergent
concentration.
API submitted a comment about the information which upstream
parties should be required to provide to establish their affirmative
defenses for downstream misadditization violations. API argued that
upstream parties should only be required to establish that they
transferred the product with a product transfer document accurately
identifying it as base gasoline that should not be sold to the ultimate
consumer.
EPA agrees that compliance with product transfer document
requirements is an important element of an affirmative defense to
liability for downstream violations. However, EPA does not agree that
such compliance should by itself be sufficient to establish an
affirmative defense. As discussed above, upstream parties may cause
downstream violations in a variety of ways, and all such causes cannot
be detected through the product transfer document. Therefore, EPA is
including as a required element of an affirmative defense for most
downstream parties a demonstration that the party did not cause the
violation.
In the case of detergent manufacturers, an affirmative defense will
be established if the manufacturer demonstrates the following: (1)
Product transfer document requirements were met; (2) testing of the
detergent when it left the manufacturers control showed compliance with
applicable requirements; and (3) the manufacturer provided proper
blending instructions to its customer. EPA does not believe that a
manufacturer who demonstrates these elements could have caused a
downstream violation.
e. Sale of Unregistered Detergent. CMA expressed concern that the
proposed prohibition against selling or offering to sell or supply
detergent that does not conform to Part 79 registration specifications
would prevent detergent manufacturers from selling to prospective
customers detergents that have not yet been developed and registered.
EPA does not intend to prohibit detergent manufacturers from having
sales discussions with prospective customers about possible future
sales of detergents yet to be developed. Such sales discussions are too
far in time from the offering for sale of actual detergent for actual
use, to be considered covered by the prohibition in today's rule
against offering for sale a non-conforming product. Once the product is
in the actual development stage, it may qualify for an exemption from
the requirements of this rule under the research and development
exemption discussed above.
f. Legal Authority to Regulate Carriers. The National Tank Truck
Carriers (``Truck Carriers'') commented that EPA lacked the statutory
authority to regulate detergent carriers under CAA sections 211(l) and
301(a). EPA disagrees with these comments. EPA believes that it has
sufficient authority under the Clean Air Act to regulate carriers of
detergent additives.
First, section 211(l) requires EPA to promulgate regulations
``establishing specifications'' for detergents. In addition, as stated
above, section 301(a) grants EPA the authority to promulgate
regulations that are necessary to carry out its functions under the
Act. As stated above, EPA often lacks the ability to accurately
determine the actual cause of a detergent program violation. Therefore,
to ensure that gasoline sold to the ultimate consumer is properly
additized, EPA is establishing a scheme of liability under which all
parties in the distribution chain who could cause a violation are
presumed liable for that violation. Detergent carriers are an essential
component of the chain of distribution of detergent additives, and
exercise sufficient control over a portion of that distribution chain
such that it is necessary for EPA to regulate detergent carriers in
order to ensure that detergent additives comply with the regulations
promulgated today.
Detergent carriers have the ability to cause violations of this
rule. For example, carriers may improperly commingle detergents, or may
fail to provide accurate identification of the detergent to the
receiving party. EPA is therefore concerned that, without regulation of
detergent carriers, neither the requirements of this rule nor the
mandate of Congress in Section 211(l) will be effectively implemented,
because of the potential for carriers to cause violations, the need to
impose a duty on carriers to exercise care in transporting or storing
detergent and gasoline, and the need for EPA to determine the cause of
violations of today's rule.
The Truck Carriers also commented that EPA does not have the
authority to regulate common carriers under section 211(c), since they
do not manufacture, introduce into commerce, offer for sale, or sell
fuels or fuel additives. EPA disagrees with this argument, and believes
that carriers clearly participate in the introduction of fuels and/or
fuel additives into commerce. The term ``introduce into commerce'' is
not defined by Congress in the Act. The common definition of the term
is sufficiently broad to include carriers of gasoline. The Webster's
New Universal Unabridged Dictionary, 1983 edition, defines ``to
introduce'' as ``to take or bring into a given place or position.'' EPA
believes that it is reasonable to include common carriers' transporting
activities within this definition.
Furthermore, EPA's ability to regulate carriers pursuant to the
authority of section 211(c) has long been recognized by the Agency and
industry in other fuels enforcement programs, such as the lead
contamination and volatility programs. Under these programs, EPA
regulates all parties in the gasoline distribution system, including
carriers, pursuant to section 211(c). The Agency's authority, pursuant
to section 211(c), to regulate gasoline carriers under today's program
is consistent with its long-held authority under these prior programs.
In National Tank Truck Carriers v. EPA, 907 F.2d. 177 (D.C.Cir. 1990),
the court found that EPA's rationale for imposing liability on carriers
in the volatility program was sufficiently reasonable to uphold such
regulation of carriers. The Agency's rationale in the volatility
program was similar to the rationale for imposing liability on carriers
in this rule, i.e., that it is necessary to impose some degree of
responsibility for compliance on all parties in the chain of
distribution of the regulated product.
EPA also disagrees with the Truck Carriers' argument that section
301(a) of the Act does not give the Agency authority to regulate
carriers. As previously mentioned in the discussion of detergent
manufacturer liability, section 301(a) gives EPA the general authority
to prescribe regulations necessary to carry out its statutory
functions. It is reasonable to interpret this general authority to
include the authority to create a detergent program liability scheme
covering all parties, including carriers, within the gasoline and
detergent distribution systems. The creation of this comprehensive
scheme is necessary to ensure effective enforcement of the detergent
program, which is a statutorily mandated function of the Agency.
g. Interaction with Department of Transportation Safety
Regulations. The Truck Carriers commented that the Department of
Transportation is the only federal agency that has authority to
regulate the transportation of gasoline, and therefore gasoline
carriers, since the Hazardous Metals Transportation Safety Act (HMTSA)
designates the Secretary of Transportation as the sole source of all
regulations affecting commerce in hazardous materials.
EPA does not agree with this argument. It is true that gasoline is
a hazardous substance, and is therefore subject to the safety
regulations and other requirements of the HMTSA. However, the fact that
the Department of Transportation has the authority to promulgate safety
regulations governing the transportation of gasoline does not deprive
EPA of the authority to regulate the sale and transfer of gasoline to
implement the goals of the Clean Air Act. The regulation promulgated
today is not intended to regulate any aspect of transportation safety,
and therefore does not implicate the HMTSA.
h. Definition of ``Marketer'' under Section 211(l). The Truck
Carriers also stated that common carriers were not subject to the
prohibitions of section 211(l) because they were not ``marketers'' of
gasoline. EPA disagrees with this argument, and believes that it is
reasonable to include carriers in the term ``marketers'' as used in
section 211(l).
The Act does not define ``marketers'' for purposes of section
211(l). The term generally appears to indicate a broad category of
persons involved in the distribution system of a product (see sections
211(h)(4), 211(k)(5), and 211(m)(2)). As used in these provisions, the
scope of the term ``marketers'' may be broader or narrower, depending
on the detail with which Congress specified the parties covered by each
provision. For example, the long list of parties referenced in section
211(h)(4) makes it clear that ``marketer'' as used in that provision
means an undefined category of persons other than distributors,
blenders, resellers, carriers, retailers, or wholesale purchaserconsumers.
However, in sections 211(l) and 211(m)(2), the term includes
an undefined category of parties other than refiners.
The generally accepted meaning of the term marketer is ``one that
deals in the market.'' (Webster's Ninth New Collegiate Dictionary
1990.) A carrier would reasonably fall within this definition. Given
the lack of a clear definition in the Act for this vague term, the
indications that Congress intended the term as used in section 211(l)
to have a broad meaning, and the reasons provided above supporting
EPA's inclusion of carriers as regulated parties in today's rule, EPA
has reasonably determined that carriers are included in the term
``marketer'' for purposes of section 211(l).
i. Special Situation of Carriers. The Truck Carriers commented
that, even if EPA has the authority to regulate gasoline carriers,
under the Act, the Agency should not exercise that authority because of
the special nature of carrier services. The Truck Carriers claimed that
gasoline carriers merely follow the owner's instructions when they
transport products, and should therefore not be held liable for such
products that are in violation of this rule.
EPA disagrees with this argument. EPA has established similar
liability schemes in the other fuel programs that the Agency
administers, i.e. lead volatility program, lead contamination program,
and reformulated/conventional gasoline program. The rationale for the
imposition of liability on carriers of gasoline is the same for all
these programs, including the rule promulgated today. Although carriers
do not take title to the product they transport, they can and do
exercise sufficient control of gasoline at some point in the
distribution chain, and can therefore cause violations.
It is EPA's experience in the lead contamination and volatility
programs that carriers have the ability to improperly commingle, label,
or deliver products. These actions could result in violations of the
requirements of this rule. Therefore, EPA believes that it is
appropriate to include gasoline carriers within the liability scheme
promulgated today.
j. Liability of Common Carriers. The Truck Carriers expressed
concern that the proposed liability scheme placed common carriers at a
competitive disadvantage compared to private carriers, because the
private carrier would not bear the same risk of penalties and costs of
defenses against presumptive liability for violations found in a truck.
The Truck Carriers stated that EPA has no rational basis for treating
common carriers in a different manner than private carriers.
EPA recognizes the Truck Carriers' concern, but does not agree that
the liability scheme in today's rule treats common carriers differently
from private carriers. If a refiner chooses to transport its own
product, rather than hiring a common carrier, the refiner will be
subject to liability for violations found in its transport vehicle. In
addition, if the transport vehicle is a branded facility, the refiner
will be subject to vicarious liability for violations found at that
facility.
Further, carriers will not be presumed liable under today's rule
for violations found downstream from their facilities. Carriers will
only be held liable for such violations if EPA can demonstrate that
they caused the violation. Regarding violations at their own
facilities, carriers will be held liable in the same manner that any
party is held liable for a violation found at its own facility, and can
establish a defense to such liability by showing that they did not
cause the violation, and that it complied with product transfer
document requirements. Therefore, EPA believes that the liability
scheme promulgated today treats common carriers equitably.
k. Liability Related to Insufficient Supporting Data or Test
Procedures. Today's rule requires that a detergent manufacturer who
registers a detergent under part 79 must make available to EPA, upon
EPA's request, supporting data which adequately establishes the
effectiveness of the detergent at the minimum recommended concentration
specified under the part 79 registration. A workable test procedure,
including test results where necessary, to identify the detergent in
its pure state is also required upon request.
If the Agency requests such supporting data and/or identification
test procedure and results, and the information is not available or is
determined by the Agency to be inadequate, the detergent will no longer
meet the requirements of this rule, and can no longer be used in
gasoline to be sold to the ultimate consumer. Detergent blenders (fuel
manufacturers) who continue to use an unacceptable detergent after EPA
or the detergent registrant has notified them that the detergent has
been disqualified for use in compliance with this rule will be liable
for violations resulting from the improper additization. The detergent
blenders will be given a 45-day grace period from the date of
notification to switch to an eligible detergent product.
However, if the Agency determines that the detergent manufacturer
was guilty of fraud or other serious transgression in registering the
detergent, then the detergent registration will be considered void ab
initio as a means of complying with the detergent program requirements
of this rule, starting from the time of the detergent's use under the
interim detergent program. The detergent manufacturer would thus be
liable for the improper use of the detergent from the date it was first
used under this program. Fuel marketers who used the detergent will
also be liable for such prior use if they cannot establish that they
did not cause the violation by having culpability in the improper use,
such as by failing to ask to review the detergent manufacturer's
supporting data, or by other culpable behavior.
l. Vicarious Liability. Today's rule provides for imposition of
vicarious liability on branded refiners when violations are discovered
at facilities operating under the refiner's name or that of a marketing
subsidiary. The vicarious liability concept has been used in many other
EPA fuels programs, such as the volatility, lead contamination, and
reformulated/conventional gasoline programs. The reason for imposing
vicarious liability in today's rule is the same as it is under the
other programs.
Vicarious liability in the EPA fuels programs is predicated upon
the control the branded refiner has over its branded outlets and other
facilities operating under the brand name or the name of a marketing
subsidiary. Branded refiners have great contractual and practical
ability to control such facilities. This control includes the ability
to dictate and determine the attributes and quality of product being
stored, transferred or sold in these facilities.
This control is especially apparent in the case of detergent
additization, where branded refiners typically advertise their gasoline
based on the alleged efficiency or supremacy of their additive
packages. The additive package may actually be the only major
distinguishing factor between different branded gasolines, which may be
substantially fungible in other respects. Branded refiners,
accordingly, go to great lengths to ensure that their additive packages
are properly blended into their gasoline, even to the point of
maintaining their own additive systems in facilities operated by other
parties, such as by exchange agreement refiners.
EPA, therefore, does not agree with the comments of API and Amoco
Oil Company that vicarious liability on branded refiners should not be
imposed. As previously mentioned, branded refiner control over branded
facilities is just as significant, or even more significant, in regard
to detergent quality than it is in the other EPA programs where
vicarious liability has been successfully imposed. In addition, the
detergent program's presumptive and vicarious liability scheme is
consistent with prior judicial decisions. See Amoco Oil Co. v.
Environmental Protection Agency, 501 F.2d 722 (D.C. Cir. 1974) (``Amoco
I''); Amoco Oil Co. v. Environmental Protection Agency, 501 F.2d 270
(D.C. Cir. 1976) (``Amoco II'') and National Tank Truck Carriers, Inc.
v. U.S. E.P.A., 907 F.2d 177 (D.C. Cir. 1990).
There are several significant aspects of branded refiner vicarious
liability under today's rule. First, vicarious liability will not
attach to a branded refiner for VAR or other violations found at a
terminal operating under that refiner's name, where the violation
involves an exchange agreement refiner's designated product. In these
circumstances, although the terminal refiner's brand name is on the
overall facility, it is not on the other refiner's product in
violation, and the branded terminal refiner does not have sufficient
control of such product to impose vicarious liability here. However,
the terminal branded refiner may, in appropriate circumstances, be
considered an actual detergent blender if the facts warrant such a
conclusion and the terminal refiner fits within the detergent blender
definition. Also, the exchange agreement branded refiner has potential
vicarious liability for VAR violations that occur which involve its
branded product in additization equipment that is used solely for that
branded product.
Another important clarification of branded refiner vicarious
liability involves the imposition of such liability for detergent
program violations after the additization process. As previously
mentioned, only detergent blenders have presumptive liability for VAR
violations. However, downstream parties are presumptively liable for
gasoline nonconformity violations, such as those involving the sale of
inadequately additized product or unleaded product improperly additized
only with a carburetor detergent.
If such violations are found at branded downstream facilities, then
the branded refiner would be subject to vicarious liability for those
violations. As is always the case under the provisions of this rule and
EPA's other fuels programs, the branded refiner would have the right to
assert its affirmative defense to the imposition of such liability.
Similarly, the retailer would also have the right to assert its
affirmative defense, including lack of causation, to the imposition of
liability for the violation. Both the branded refiner and the retailer
would, additionally, have the right to raise the argument, when
appropriate in under-additized gasoline situations, that VAR procedures
for the gasoline were followed and that no averaging violation of the
VAR standard actually occurred.
Another important point about branded refiner vicarious liability
involves downstream product transfer document violations. Such
violations will not be the basis for any vicarious or presumptive
liability, since proper care of these documents is a matter under the
sole control of the violating party itself. This approach is consistent
with the approach to these violations found in the reformulated/
conventional gasoline program, where no presumptive or vicarious
liability attaches to these violations.
API and Amoco Oil Company raised an additional concern about
vicarious liability under the proposed rule. These commenters urged
that the vicarious liability affirmative defense requirements should
not include the need to establish that the violations were caused, or
must have been caused, by other parties. This requirement, according to
these commenters, creates an unfair burden to refiners.
EPA disagrees. The Amoco II case, supra, upheld EPA's right to
require branded refiners to establish, as part of an affirmative
defense to vicarious liability, that a lead contamination violation was
not caused by the refiner, and was instead either caused by an
unforeseeable act of vandalism of another, or by an unpreventable
breach of contract by another. The language to which these commenters
object is the same vicarious liability affirmative defense language
which was crafted by the Court and which commenter Amoco and other
branded refiners consented to, in the Amoco II decision. See Amoco II,
supra, note 8, p.273.
As previously mentioned, EPA does not believe that a branded
refiner has any less control over its branded facilities in the context
of the detergent rule than in the context of EPA's other fuels
programs. Today's rule, therefore, contains this judicially sanctioned
affirmative defense requirement language, as proposed in the NPRM.
One clarification of the proposed vicarious liability affirmative
defense requirements is contained in this detergent rule. The NPRM
mentioned that the proposed vicarious liability affirmative defense
requirements were similar to those found in the volatility program. The
volatility program liability provision, 40 CFR 80.28(g)(4), requires
that branded refiners establish as part of their affirmative defenses,
inter alia, that the violation was either caused by an act in violation
of law, vandalism or sabotage, or by an unavoidable breach of contract.
Intentional commingling is not considered to be an act in violation of
law, or of vandalism or sabotage, under the volatility rule, but is
instead covered by the provision requiring the branded refiner to
establish existence of an effective contractual oversight program to
prevent the violation. To be consistent with the volatility and with
the reformulated/conventional gasoline rules, this final rule (at 40
CFR 156(c)(2)(ii)) also places acts of intentional commingling in the
defense section requiring branded refiner establishment of contractual
oversight programs.
m. Affirmative Defenses to Liability. The Western Independent
Refiners Association (``Western Refiners'') commented that the
affirmative defense provisions, as proposed by EPA, would be simpler to
understand if EPA adopted a quality assurance program requirement as a
condition of detergent certification. In this rule, EPA is not
promulgating a certification program for detergent additives; however,
EPA at this time does not believe that a quality assurance requirement
should be required as a condition of receiving certification, but that
it should remain a required element of an affirmative defense to
liability for certain violations of this rule. Agency experience with
similar affirmative defense requirements in other fuels programs
indicates that industry is able to understand and work with this
concept. In fact, the threat of potential liability if adequate quality
assurance programs are not established has proven to be a powerful
incentive ensuring the continued existence of such programs. Further,
regulated parties are free to choose not to meet the required elements
of an affirmative defense, and will not be subject to liability because
of that choice as long as no violations occur.
(1) Detergent Manufacturers. EPA proposed that conformity of a
detergent with applicable requirements be determined at the time the
product was transported from the manufacturer's facility. CMA suggested
in its comments on the proposed rule that EPA change the point at which
detergent manufacturers must demonstrate through test results, as part
of establishing an affirmative defense, that their product conformed
with applicable requirements. CMA noted that the detergent product
leaves the control of the manufacturer at the point of loading for
transport, rather than at the time of actual transport. EPA agrees with
the logic and fairness of CMA's argument, and is therefore requiring in
this final rule that, for the purposes of a manufacturer's affirmative
defense to liability, conformity will be determined at the time the
detergent was loaded for transport or otherwise left the manufacturer's
control.
(2) Detergent and Gasoline Carriers. The Truck Carriers also
expressed concern that carriers will find it difficult to demonstrate,
as part of an affirmative defense, that they did not cause a violation,
because carriers do not have sufficient power in the gasoline
distribution chain to elicit other parties' cooperation in
demonstrating lack of causation.
EPA recognizes the Truck Carriers concern, but does not believe
that it is valid. It is EPA's experience that, in the other fuel
programs implemented by the Agency, all involved parties typically
cooperate with EPA to discover who caused the violation. Under this
rule, carriers have the burden of demonstrating lack of causation as an
element of an affirmative defense only if they are held liable for
violations discovered at their own facilities. Carriers should have
sufficient control over information regarding activities at facilities
that they own or control. For all other violations, carriers will only
be held liable where EPA can satisfactorily demonstrate that they
caused the violation.
The Truck Carriers also commented that the possession of proper
product transfer documents should be the only element required to
establish an affirmative defense to carrier liability. EPA disagrees,
and does not believe that such an approach would ensure successful
implementation of today's rule. Carriers can cause violations in a
number of ways that would not necessarily be reflected on or related to
the product transfer document, such as improper commingling or
blending.
California Gasoline
Several California fuel marketers have commented about the
detergent program's treatment of gasoline already subject to the CARB
detergent program. These commenters argue that the CARB detergent
certification program already instituted for California gasoline is as
effective as the proposed federal program would be. According to these
commenters, California marketers should be exempted from the federal
program enforcement requirements since the federal requirements would
merely be duplicative of the CARB requirements, unnecessarily
burdensome, and not environmentally beneficial.
EPA does not agree with this argument. CARB does have a detergent
certification program in place for gasoline sold in California. The
federal program does not preempt the California program with respect to
certification testing for gasoline sold in California.
CARB bases enforcement of its detergent program on a review of
blending records to determine adequate additization. In this respect,
the CARB and federal programs are very similar. However, the federal
program promulgated today has some additional enforcement requirements
that are not found in the CARB program. These additional federal
requirements include requiring: detergent accuracy in its unadditized
state; transfer documents to accurately identify additive status of
product; and quarterly automated equipment calibrations.
The federal enforcement program, therefore, is not identical to
CARB's, and can be said to be stricter in some important respects.
These differences may result in greater additization accuracy. EPA does
not believe it is appropriate to have a more lenient program in
California, in certain important aspects, than in the rest of the
country, merely because the gasoline sold in California is also subject
to enforcement by another regulatory agency. Consumers of gasoline in
California should have the same environmental benefits from the federal
rule promulgated today as consumers in other states will acquire.
Furthermore, fulfilling the federal enforcement requirements should
assist California marketers in meeting CARB's additization mandates.
The federal program requirements are, thus, neither duplicative nor
unduly burdensome.
Exemptions
Many parties commented about the need to simplify the research
waiver provisions of the detergent rule. Commenters advised that
detergent research is ongoing, with new products being continuously
developed. The research waiver process proposed in the detergent rule
NPRM would disrupt industry's ability to develop new detergents in a
timely manner, according to these commenters.
EPA agrees that a less cumbersome research control process than the
one proposed in the detergent NPRM would be appropriate and would still
be effective. Therefore, the interim detergent program takes a much
more streamlined approach. All detergent and detergent-additized
gasoline being used for research, development, or testing (including
certification testing) purposes only, will be exempt from the
provisions of the rule, provided certain requirements are met. To be
exempt, the fuel will have to be properly identified by documentation,
cannot be sold from retail outlets or from non-research wholesale
purchaser consumer facilities, and will have to be covered by an annual
research notification to EPA.
Racing fuel and aviation fuel will also be exempted from the
detergent program requirements. The exemption requirements are similar
to those promulgated for research fuels, except that manufacturers will
not be required to annually notify EPA of the production of such fuel
in order to obtain an exemption. EPA does not believe such an annual
notification requirement is necessary or beneficial. However, only
racing fuel sold from racing facilities will be exempt from the
requirements of today's rule. Fuel will not be exempt if it is sold
from retail outlets or for use in motor or nonroad vehicles. The
rationale for this requirement is to ensure that such fuel is not
available for sale to the general public, since the basis for the
exemption is that racing fuel is not being sold or transferred to the
public. Aviation and racing fuel must also be covered by documentation
establishing such fuels as the specified exempt fuel.
Penalties
In the NPRM, it was proposed that there would be a presumption of
the number of days of VAR violation, based on the number of days that
the product in violation was in the gasoline distribution system. The
Western Independent Refiners Association objected to the idea that
there should be a presumed number of days for violations of the VAR
standard.
The Agency agrees that such a presumption is inappropriate in
regard to the detergent rule's VAR violations, since violations of the
VAR standard are averaged violations. Section 211(d)(1) specifies that
violations of section 211(l) standards based upon multi-day averaging
periods shall constitute a day of violation for every day of the
averaging period. Consequently, the rule promulgated today complies
with this statutory requirement and deletes the number of days
presumption proposed in the NPRM.
V. Administrative Requirements
A. Administrative Designation and Regulatory Analysis
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), EPA
must determine whether a regulation is ``significant'' and therefore
subject to review by the Office of Management and Budget (OMB), and the
requirements of the Executive Order. The order defines ``significant
regulatory action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.''
Pursuant to the terms of Executive Order 12866, it has been
determined that this final rule is not a ``significant regulatory
action''. EPA's regulatory impact analysis (RIA), available in the
docket and summarized below, indicates that the annual costs to
producers for compliance with the requirements of the interim program
are not expected to exceed $100 million. However, the analysis
demonstrates that the annual costs to producers for compliance with the
expected full certification program (to be finalized in a later
rulemaking) would be expected to exceed $100 million. Therefore, EPA
has treated this action as significant, and has submitted a regulatory
analysis to OMB for review.
The total cost of the detergent additive interim registration
program to the gasoline industry is estimated at about $130 million
over an 18-month period, nearly all of which is associated with the
cost of incremental detergents added to gasoline. Annual costs from the
start of the interim program (January 1, 1995) through the fourth full
year of the expected certification program (i.e., the year 2000),
discounted at a rate of 7 percent, amount to a net present value in
1995 of about $650 million. Full certification program costs include
costs associated with certification testing and additional registration
and recordkeeping requirements, as well as additization costs. Still,
over 90 percent of the total estimated cost of the program is
associated with the price of the additives needed to bring all gasoline
up to the effective detergency levels which much of U.S. gasoline
already contains. This cost is generally expected to be passed along to
the consumer, increasing the average price of gasoline by about .10 to
.25 cents per gallon. This would amount to only a dollar or two per
motorist per year, and would be more than compensated by the increased
fuel economy and decreased maintenance requirements which improved
deposit control would be expected to provide.
The gasoline detergent additive requirements are expected to result
in reductions in motor vehicle emissions of hydrocarbons, carbon
monoxide, and oxides of nitrogen, totalling about 700,000 tons during
the 18-month interim program, and about 600,000 tons per year
thereafter. These emission reductions will be achieved at relatively
low cost, i.e., about $220 per ton. Fuel economy benefits are also
expected as a result of the detergent program, amounting to over 390
million gallons during the 1995-2000 period The savings associated with
this fuel economy benefit are expected to partially offset the costs of
the program, decreasing the cost per ton of emission reduction to about
$120.
The program is not expected to be a significant cost burden to
individual businesses. As described above, incremental costs for
detergent additive are expected to be passed on to the consumer.
Furthermore, adverse effects on competitive relationships are not
expected. In fact, this rule should result in increased sales and
business opportunities within the fuel additive industry. Any written
comments from OMB and any EPA response to OMB's comments are available
in the public docket for this rule.
B. Compliance With Regulatory Flexibility Act
Under section 605 of the Regulatory Flexibility Act of 1980, 5
U.S.C. 601 et seq., federal agencies are required to assess the
economic impact of federal regulations on small entities. Accordingly,
a Regulatory Flexibility Analysis (RFA) has been prepared. The RFA is
included as Chapter 5 in the Regulatory Impact Analysis described in
the previous section of this notice, and is available for review in the
public docket.
The RFA shows that the regulatory responsibilities of the various
types of businesses affected by this rule, along the chain from
gasoline refiner to distributor to retailer, differ markedly. For each
type of business, however, even for the small business entities in this
chain, the costs of the regulation are estimated to be modest. The
largest costs would be incurred by gasoline producers in the price of
the additional detergent additive required to be added to gasoline. As
described above, this cost is expected to be passed along the
distribution chain to consumers. In any case, if small businesses were
permitted a special provision allowing under-additization, this would
minimize realization of the program's projected air quality benefits.
EPA has thus concluded that significant adverse economic impacts on
small businesses are extremely unlikely. On the contrary, in the case
of small additive manufacturers and additive injection equipment
manufacturers, this interim registration regulation and the expected
certification rulemaking could result in significant economic
opportunities through increased sales.
C. Paperwork Reduction Act
The information collection requirements in this rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501
et seq. An Information Collection Request document has been prepared by
EPA (ICR No. 1655.02) and a copy may be obtained from Sandy Farmer,
Information Policy Branch; EPA; 401 M Street, SW., (Mail Code 2136);
Washington, DC 20460, or by calling (202) 260-2740. These requirements
are not effective until OMB approves them and a technical amendment to
that effect is published in the Federal Register.
This collection of information has an estimated reporting burden
averaging 6.3 hours per response and an estimated annual recordkeeping
burden averaging less than one hour per respondent. These estimates
include time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing the
collection of information.
Send comments regarding the burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden to: Chief, Information Policy Branch; EPA; 401 M Street, SW.,
(Mail Code 2136); Washington, DC 20460, and to the Office of
Information and Regulatory Affairs; Office of Management and Budget;
Washington, DC, 20503; marked ``Attention: Desk Officer for EPA.''
VI. Electronic Copies of Rulemaking Documents
Electronic copies of the preamble, the Regulatory Impact Analysis,
and the regulatory text of this final rule are available on the Office
of Air Quality Planning and Standards (OAQPS) Technology Transfer
Network Bulletin Board System (TTNBBS). Instructions for accessing
TTNBBS and downloading the relevant files are described below.
TTNBBS can be accessed using a dial-in telephone line (919-541-
5742) and a 1200, 2400, or 9600 bps modem (equipment up to 14.4 Kbps
can be accommodated). The parity of the modem should be set to N or
none, the data bits to 8, and the stop bits to 1. When first signing on
to the bulletin board, the user will be required to answer some basic
informational questions to register into the system. After registering,
proceed through the following options from a series of menus:
(T) Gateway to TTN Technical Areas (Bulletin Boards)
(M) OMS
(K) Rulemaking and Reporting
At this point, the system will list all available files in the
chosen category in chronological order with brief descriptions. The
following four ``aip'' files are currently available:
DCA__PRE.ZIP (Preamble from the Notice of Proposed Rulemaking)
DCA__1FP.ZIP (Preamble to the final rule on the Interim Requirements
for Deposit Control Additives)
DCA__IFR.ZIP (Regulatory text for the final rule on the Interim
Requirements for Deposit Control Additives)
DCA__RIA.ZIP (Regulatory Impact Analysis)
File information can be obtained from the ``READ.ME'' file. Choose
from the following options when prompted:
<D>ownload, <P>rotocol, <E>xamine, <N>ew, <L>ist, <H>elp or <ENTER> to
exit.
To download a file, e.g., <D> filename.ZIP, the user needs to
choose a file transfer protocol appropriate for the user's computer
from the options listed on the terminal. The user's computer is then
ready to receive the file by invoking the user's resident file transfer
software. Programs and instructions for de-archiving compressed files
can be found under <S>ystems Utilities from the top menu, under
<A>rchivers/de-archivers. Please note that due to differences between
the software used to develop the document and the software into which
the document may be downloaded, changes in format, page length, etc.
may occur.
TTNBBS is available 24 hours a day, 7 days a week except Monday
morning from 8-12 EST, when the system is down for maintenance and
backup. For help in accessing the system, call the systems operator at
919-541-5384 in Research Triangle Park, North Carolina, during normal
business hours EST.
List of Subjects in 40 CFR Part 80
Environmental protection, Fuel additives, Gasoline detergent
additives, Gasoline, Motor vehicle pollution, Penalties, Reporting and
recordkeeping requirements.
Dated: October 14, 1994.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, part 80 of title 40 of
the Code of Federal Regulations is amended as follows:
PART 80--[AMENDED]
The authority citation for part 80 continues to read as follows:
Authority: Sections 114, 211 and 301(a) of the Clean Air Act as
amended (42 U.S.C. 7414, 7545 and 7601(a)).
2. A new subpart G, consisting of Secs. 80.140 through 80.169, is
added to part 80, to read as follows:
Subpart G--Detergent Gasoline
Sec.
80.140 Definitions.
80.141 Interim detergent gasoline program.
80.142--80.154 [Reserved]
80.155 Controls and prohibitions.
80.156 Liability for violations of the interim detergent program
controls and prohibitions.
80.157 Volumetric additive reconciliation (``VAR''), equipment
calibration, and recordkeeping requirements.
80.158 Product transfer documents.
80.159 Penalties.
80.160 Exemptions.
80.161--80.169 [Reserved]
Subpart G--Detergent Gasoline
Sec. 80.140 Definitions.
The definitions in this section apply only to subpart G of this
part. Any terms not defined in this subpart shall have the meaning
given them in 40 CFR part 80, subpart A, or, if not defined in 40 CFR
part 80, subpart A, shall have the meaning given them in 40 CFR part
79, subpart A.
Additization means the addition of detergent to gasoline or postrefinery
component in order to create detergent-additized gasoline or
detergent-additized post-refinery component.
Automated detergent blending facility means any facility
(including, but not limited to, a truck or individual storage tank) at
which detergent is blended with gasoline or post-refinery component, by
means of an injector system calibrated to automatically deliver a
prescribed amount of detergent.
Base gasoline means any gasoline that does not contain detergent.
Carburetor deposits means the deposits formed in the carburetor
during operation of a carburetted gasoline engine which can disrupt the
ability of the carburetor to maintain the proper air/fuel ratio.
Carrier of detergent means any distributor of detergent who
transports or stores or causes the transportation or storage of
detergent without taking title to or otherwise having any ownership of
the detergent, and without altering either the quality or quantity of
the detergent.
Deposit control effectiveness means the ability of a detergent
additive package to prevent the formation of deposits in gasoline
engines.
Deposit control efficiency means the degree to which a detergent
additive package at a given concentration in gasoline is effective in
limiting the formation of deposits. The addition of inactive
ingredients to a detergent additive package, to the extent that this
addition dilutes the concentration of the detergent-active components,
reduces the deposit control efficiency of the package.
Detergent additive package means any chemical compound or
combination of chemical compounds, including carrier oils, that may be
added to gasoline, or to post-refinery component blended with gasoline,
in order to control deposit formation. Carrier oil means an oil that
may be added to the package to mediate or otherwise enhance the
detergent chemical's ability to control deposits. A detergent additive
package may contain non-detergent-active components such as corrosion
inhibitors, antioxidants, metal deactivators, and handling solvents.
Detergent blender means any person who owns, leases, operates,
controls or supervises the blending operation of a detergent blending
facility. Pursuant to the definition in 40 CFR 79.2(d), a detergent
blender is also considered a fuel manufacturer.
Detergent blending facility means any facility (including, but not
limited to, a truck or individual storage tank) at which detergent is
blended with gasoline or post-refinery component.
Detergent-active components means the components of a detergent
additive package which act to prevent the formation of deposits,
including, but not necessarily limited to, the actual detergent
chemical and any carrier oil (if present) that acts to enhance the
detergent's ability to control deposits.
Detergent-additized gasoline (also called detergent gasoline) means
any gasoline that contains base gasoline and detergent.
Detergent-additized post-refinery component means any post-refinery
component that contains detergent.
Distributor of detergent means any person who transports or stores
or causes the transportation or storage of detergent at any point
between its manufacture and its introduction into gasoline.
Fuel injector deposits (also known as port fuel injector deposits
or PFID) means the deposits formed on fuel injector(s) during and after
operation of a gasoline engine, as evaluated by the reduction in the
gasoline flow rate through the fuel injector(s).
Gasoline means any fuel for use in motor vehicles and motor vehicle
engines, including both highway and off-highway vehicles and engines,
and commonly or commercially known or sold as gasoline. The term
``gasoline'' is inclusive of base gasoline, detergent gasoline, and
base gasoline or detergent gasoline that has been commingled with postrefinery
component.
Hand blending detergent facility means any facility (including, but
not limited to, a truck or individual storage tank) at which detergent
is blended with gasoline or post-refinery component by the manual
addition of detergent, or at which detergent is blended with these
substances by any means that is not automated.
Intake valve deposits (IVD) means the deposits formed on the intake
valve(s) during operation of a gasoline engine, as evaluated by weight.
Manufacturer of detergent means any person who owns, leases,
operates, controls, or supervises a facility that manufactures
detergent. Pursuant to the definition in 40 CFR 79.2(f), a manufacturer
of detergent is also considered an additive manufacturer.
Post-refinery component means any gasoline blending stock or any
oxygenate which is blended with gasoline subsequent to the gasoline
refining process.
Sec. 80.141 Interim detergent gasoline program.
(a) Effective date of requirements; responsible parties. Beginning
January 1, 1995, all gasoline sold or transferred to the ultimate
consumer, or to the marketer who sells or transfers gasoline to the
ultimate consumer, must contain detergent additive(s) meeting the
requirements of this section. The applicability of these detergency
requirements to specific types of gasoline is specified in paragraph
(b) of this section. Pursuant to paragraphs (c) through (f) of this
section, compliance with the requirements of this section is the
responsibility of parties who directly or indirectly sell or dispense
gasoline to the ultimate consumer as well as parties who manufacture,
supply, or transfer detergent additives or detergent-additized postrefinery
components.
(b) Applicability of gasoline detergency requirements. Except as
specifically exempted in Sec. 80.160, the detergency requirements of
this subpart apply to all gasoline, including highway-use, off-road,
reformulated, conventional, and oxygenated gasolines, as well as the
gasoline component mixtures of petroleum and alcohol fuels, gasoline
used as marine fuel, gasoline service accumulation fuel (as described
in Sec. 86.113-94(a)(1) of this chapter), and the gasoline component of
fuel mixtures of petroleum and methanol used for service accumulation
in flexible fuel vehicles (as described in Sec. 86.113-94(d) of this
chapter).
(c) Detergent registration requirements. To be eligible for use by
fuel manufacturers in complying with the gasoline detergency
requirements of this subpart, a detergent additive package must be
registered by its manufacturer under 40 CFR part 79 according to the
specifications in paragraphs (c) (1) through (3) of this section. After
evaluating the adequacy of registration data provided by the detergent
manufacturer pursuant to these requirements, if EPA finds the data to
be deficient, EPA may disqualify the detergent package for use in
complying with the gasoline detergency requirements of this subpart,
under the provisions of paragraph (g) of this section.
(1) Compositional data. The compositional data supplied to EPA by
the additive manufacturer for purpose of registering a detergent
additive package under Sec. 79.21(a) of this chapter must include:
(i) A complete listing of the components of the detergent additive
package, using standard chemical nomenclature when possible or
providing the chemical structure of any component for which the
standard chemical name is not precise. Detergent-active components may
not be reported as the product of other chemical reactants.
(ii) The exact weight and/or volume percent (as applicable) of each
component of the package, with variability in these amounts restricted
according to the provisions of paragraph (c)(2) of this section.
(iii) For each detergent-active component of the package,
classification into one of the following designations:
(A) Polyalkyl amine;
(B) Polyether amine;
(C) Polyalkylsuccinimide;
(D) Polyalkylaminophenol;
(E) Detergent-active carrier oil; and
(F) Other detergent-active component.
(2) Allowable variation in compositional data. A single detergent
additive registration may contain no variation in the identity or
concentration of any of the detergent-active components identified
pursuant to paragraph (c)(1)(iii) of this section. The identity and/or
concentration of other components of the detergent additive package may
vary under a single registration, provided that the range of such
variation is specified in the registration and that such variability
does not change the minimum recommended concentration of the additive
package reported in accordance with the requirements of paragraph
(c)(3) of this section. Detergent additive packages which constitute a
variation from these restrictions must be separately registered. EPA
may disqualify an additive for use in satisfying the requirements of
this subpart if EPA determines that the variability included within a
given detergent additive registration affects the concentration of
detergent-active components.
(3) Minimum recommended concentration. (i) The lower boundary of
the recommended range of concentration for the detergent additive
package in gasoline, reported by the additive manufacturer pursuant to
the registration requirements in Sec. 79.21(d) of this chapter, must
equal or exceed the minimum concentration which the manufacturer has
determined to be necessary for the control of deposits in the
associated fuel type. This concentration must be reported in gallons of
the detergent additive package per gallons of gasoline.
(A) When registered for use in unleaded gasoline, the minimum
recommended concentration must not be less than the concentration
necessary for the control of PFID and IVD.
(B) When registered for use in leaded gasoline, the minimum
recommended concentration must not be less than the concentration
necessary for the control of carburetor deposits.
(ii) The minimum concentration reported in the detergent
registration according to the provisions of paragraph (c)(3)(i) of this
section must also be communicated in writing by the additive
manufacturer to each fuel manufacturer who purchases the subject
detergent for purpose of compliance with the gasoline detergency
requirements of this subpart, and to any additive manufacturer who
purchases the subject additive with the intent of reselling it to a
fuel manufacturer for this purpose.
(iii) Pursuant to the requirements of paragraph (e) of this
section, EPA may require the additive manufacturer to submit data to
support the deposit control effectiveness of the detergent package at
the specified minimum effective concentration. EPA may disqualify an
additive for use in satisfying the requirements of this subpart upon
finding that the supporting data is inadequate. Manufacturers may be
subject to the liabilities and enforcement actions in Secs. 80.156 and
80.159 if such a finding is made.
(d) Detergent gasoline registration requirements. (1) Pursuant to
the fuel registration requirements of Sec. 79.11 of this chapter, a
detergent blender/fuel manufacturer must include adequate information
in the gasoline's registration to identify which registered detergent
additive(s) will be used in the gasoline. This information must at a
minimum include the specific commercial identifying name and
manufacturer of the detergent additive package(s), the range of
concentration of each such additive package intended to be used in the
base gasoline, and any additional information needed to clearly
identify which registered detergent additive(s) are to be used. A fuel
registration shall be deemed insufficient if the registered additive to
be used cannot be clearly identified based on the information provided.
To comply with the detergency requirements of this subpart, the lower
boundary of the range of concentration of the detergent additive
package, reported by the fuel manufacturer pursuant to the registration
requirements of Sec. 79.11(c) of this chapter, must equal or exceed the
minimum recommended concentration specified in the detergent additive's
registration, unless otherwise approved by EPA under the provisions of
paragraph (d)(2) of this section.
(2) If a detergent blender believes that the minimum treat rate
recommended by the manufacturer of a detergent additive exceeds the
amount of detergent actually required for effective deposit control,
then, upon informing EPA of these circumstances pursuant to paragraph
(d)(2)(i) of this section, the detergent blender may use the detergent
at a lower concentration than recommended by the detergent
manufacturer. Under the provisions of paragraph (d)(2)(ii) of this
section, EPA may subsequently require the detergent blender to provide
test data substantiating the effectiveness of the detergent at the
lower concentration. Pursuant to paragraph (d)(2)(iii) of this section,
if EPA determines that the lower concentration does not provide a level
of deposit control consistent with the requirements of this section,
the detergent blender may be subject to the penalties described in
Secs. 80.156 and 80.159 for any gasoline additized at the lower
concentration.
(i) The detergent blender must inform EPA in writing of an intent
to use a detergent product at a lower concentration than the minimum
recommended by the detergent manufacturer. This notification must
clearly specify the name of the detergent product and its manufacturer,
the concentration recommended by the detergent manufacturer, and the
concentration which the detergent blender intends to use. The
notification must also attest that data are available to substantiate
the deposit control effectiveness of the detergent at the intended
lower concentration. The notification should be sent by certified mail
to the address specified in Sec. 80.160(a).
(ii) At its discretion, EPA may request that the detergent blender
submit the test data purported to substantiate the claimed
effectiveness of the lower concentration of the detergent additive. In
such instance, EPA shall also require the manufacturer of the subject
detergent additive to submit test data substantiating the minimum
recommended concentration specified in the detergent additive
registration. In each case, the supporting data will be due to EPA
within 30 days of receipt of EPA's request.
(A) If the detergent blender fails to submit the required
supporting data to EPA in the allotted time period, EPA will proceed on
the assumption that data are not available to substantiate the
effectiveness of the lower detergent concentration, and the detergent
blender will be subject to any applicable liabilities and penalties in
Secs. 80.156 and 80.159 for any gasoline it has additized at the lower
concentration.
(B) If the detergent manufacturer fails to submit the required test
data to EPA within the allotted time period, EPA will proceed on the
assumption that data are not available to substantiate the minimum
recommended concentration specified in the detergent registration, and
the subject additive may be disqualified for use in complying with the
requirements of this subpart, pursuant to the procedures in paragraph
(g) of this section. The detergent manufacturer may also be subject to
applicable liabilities and penalties in Secs. 80.156 and 80.159.
(iii) If both parties submit the requested information, EPA will
evaluate the quality and results of both sets of test data in relation
to each other and to industry-consensus test practices and standards,
in a manner consistent with the guidelines described in paragraph (e)
of this section. EPA will inform both the detergent blender and the
detergent manufacturer of the results of its analysis within 60 days of
receipt of both sets of data. Either party may appeal EPA's decision,
using procedures analogous to those specified in paragraphs (g)(3)
through (g)(4) of this section.
(e) Demonstration of deposit control efficiency. At its discretion,
EPA may require a detergent additive registrant to provide test data to
support the deposit control effectiveness of a detergent at the minimum
concentration recommended, pursuant to paragraph (c)(3) of this section
and Sec. 79.21(d) of this chapter. The required supporting data must be
submitted to EPA within 30 days of receipt of EPA's request. EPA will
notify the submitter, within 60 days after receiving the supporting
data, whether the data is adequate to support the deposit control
efficiency claimed. Subject to the procedures specified in paragraph
(g) of this section, if the supporting data are not submitted or if EPA
finds the data insufficient, the detergent may be disqualified for use
by fuel manufacturers in complying with the requirements of this
subpart. EPA will use the following guidelines in determining the
adequacy of the supporting data:
(1) CARB-based supporting test data. For detergent additives which
are certified by the California Air Resources Board (CARB) for use in
the State of California (pursuant to Title 13, section 2257 of the
California Code of Regulations), the CARB certification data
constitutes adequate support of the detergent's effectiveness under
this section, with the exception that CARB detergent certification data
specific to California Phase II reformulated gasoline (pursuant to
Title 13, Chapter 5, Article 1, Subarticle 2, California Code of
Regulations, Standards for Gasoline Sold Beginning March 1, 1996) will
not be considered adequate support for detergent effectiveness in
gasoline sold outside of California. For CARB-based supporting data to
be used to demonstrate detergent performance, the concentration of the
detergent-active components reported in the subject CARB detergent
certification must not exceed the minimum recommended concentration
reported in the applicable detergent additive registration.
(2) EPA will evaluate the adequacy of other supporting data
according to the following guidelines:
(i) Test fuel guidelines.
(A) The gasoline used in the supporting tests must contain the
detergent-active components of the subject detergent additive package
in an amount which corresponds to the minimum recommended
concentrations recorded in the respective detergent registration, or
less than this amount.
(B) The test fuels must not contain any detergent-active components
other than those recorded in the subject detergent registration.
(C) The test fuels used must be reasonably typical of in-use fuels
in their tendency to form deposits. Test fuel taken directly from
commercial refinery production stock is acceptable. Specially refined
low-deposit-forming fuels such as indolene are not acceptable. Other
specially blended test fuels will be evaluated by EPA for acceptability
based on the extent to which such fuels adequately represent the
deposit-forming tendency of typical (average) in-use fuels, as
reflected in the levels of the following fuel parameters: sulfur
content, aromatic content, olefin content, T-90, and oxygenate content.
(D) The composition of the blended test fuel(s) used in carburetor
deposit control testing, conducted to support the claimed effectiveness
of detergents used in leaded gasoline, should be reasonably typical of
in-use gasoline in its tendency to form carburetor deposits (or more
severe than typical in-use fuels) as defined by the olefin and sulfur
content. Test data using leaded fuels is preferred for this purpose,
but data collected using unleaded fuels may also be acceptable provided
that some correlation with additive performance in leaded fuels is
available.
(ii) Test procedure guidelines.
(A) To be acceptable, test data submitted to support the deposit
control effectiveness of a detergent additive must derive from testing
conducted in conformity with good engineering practices.
(B) For demonstration of fuel injector and intake valve deposit
control performance, vehicle-based tests using standard industry
procedures and standards is preferred. Engine-based tests may also be
acceptable, assuming a reasonable correlation with vehicle-based tests
and standards can be demonstrated. Bench test data may be acceptable to
demonstrate fuel injector deposit control performance, assuming the
results can be correlated with vehicle- or engine-based tests and
standards. Bench testing will not be considered acceptable for
demonstration of IVD control performance. Examples of acceptable test
procedures are contained in the following references:
(1) Intake Valve Deposit Test Procedures:
(i) ``Intake Valve Deposits--Fuel Detergency Requirements
Revisited'', Bill Bitting et al., Society of Automotive Engineers, SAE
Technical Paper No. 872117, 1987.\1\
\1\Society of Automotive Engineers (SAE), 400 Commonwealth
Drive, Warrendale, PA 15096-0001.
(ii) ``BMW--10,000 Miles Intake Valve Test Procedure'', March 1,
1991, Section 2257, Title 13, California Code of Regulations.
(iii) ``Standard Test Method for Vehicle Evaluation of Unleaded
Automotive Spark-Ignition Engine Fuel for Intake Valve Deposit
Formation'', American Society for Testing and Materials, ASTM Test
Method D-5500.\2\
\2\American Society for Testing and Materials (ASTM), 1916 Race
Street, Philadelphia, PA, 19103-1187.
(iv) ``Effect on Intake Valve Deposits of Ethanol and Additives
Common to the Available Ethanol Supply'', Clifford Shilbolm et al., SAE
Technical Paper Series No. 902109, 1990.
(2) Fuel Injector Deposit Test Procedures:
(i) ``Test Method for Evaluating Port Fuel Injector (PFI) Deposits
in Vehicle Engines'', March 1, 1991, Section 2257, Title 13, California
Code of Regulations.
(ii) ``A Vehicle Test Technique for Studying Port Fuel Injector
Deposits--A Coordinating Research Council Program'', Robert Tupa et
al., SAE Technical paper No. 890213, 1989.
(iii) ``The Effects of Fuel Composition and Additives on Multiport
Fuel Injector Deposits'', Jack Benson et al., SAE Technical Paper
Series No. 861533, 1986.
(iv) ``Injector Deposits--The Tip of Intake System Deposit
Problems'', Brian Taneguchi, et al., SAE Technical Paper Series No.
861534, 1986.
(C) For demonstration of carburetor deposit control performance,
any generally accepted vehicle, engine, or bench test procedure for
carburetor deposit control will be considered adequate. Port and
throttle body fuel injector deposit control test data will also be
considered to be adequate demonstration of an additive's ability to
control carburetor deposits. Examples of acceptable test procedures for
demonstration of carburetor deposit control, in addition to the fuel
injector test procedures listed above in paragraph (e)(2)(ii)(B)(2) of
this section, are contained in the following references:
(1) ``Fuel Injector, Intake Valve, and Carburetor Detergency
Performance of Gasoline Additives'', C.H. Jewitt et al., SAE Technical
Paper No. 872114, 1987.
(2) ``Carburetor Cleanliness Test Procedure, State-of-the-Art
Summary, Report: 1973-1981'', Coordinating Research Council, CRC Report
No. 529.\3\
\3\Coordinating Research Council Inc. (CRC), 219 perimeter
Center Parking, Atlanta, Georgia, 30346.
(f) Detergent identification test procedure. (1) At its discretion,
EPA may require the additive registrant to submit an analytical
procedure capable of identifying the detergent additive in its pure
state. The test procedure will be due to EPA within 30 days of the
registrant's receipt of the request. Subject to the provisions in
paragraph (g) of this section, if the registrant fails to submit an
analytical procedure, or if EPA judges a submitted procedure to be
inadequate, EPA may deny or withdraw the detergent's eligibility to be
used to satisfy the detergency requirements in this section.
(2) The analytical procedure submitted by the registrant must be
able to both qualitatively and quantitatively identify each component
of the detergent additive package. To be acceptable, the procedure must
provide results that conform to reasonable and customary standards of
repeatability and reproducibility, and reasonable and customary limits
of detection and accuracy, for the type of test in question.
(3) A fourier transform infrared spectroscopy (FTIR)-based
procedure, including an actual infrared spectrum of the detergent
additive package and each component part of the detergent package
obtained from this test method, is preferred.
(g) Disqualification of a detergent additive package. (1) When EPA
makes a preliminary determination that a detergent additive registrant
has failed to comply with the requirements of paragraph (c),
(d)(2)(ii)(B), (e), or (f) of this section, either by failing to submit
required information for a subject detergent additive or by submitting
information which EPA deems inadequate, EPA shall notify the additive
registrant by certified mail, return receipt requested, setting forth
the basis for that determination and informing the registrant that the
detergent may lose its eligibility to be used to comply with the
detergency requirements of this section.
(2) If EPA determines that the detergent registration was created
by fraud or other misconduct, such as a negligent disregard for the
truthfulness or accuracy of the required information or of the
application, the detergent registration will be considered void ab
initio and the revocation of qualification will be retroactive to
January 1, 1995 or the date on which the additive product was first
registered, whichever is later.
(3) The registrant will be afforded 60 days from the date of
receipt of the notice of intent of detergent disqualification to submit
written comments concerning the notice, and to demonstrate or achieve
compliance with the specific data requirements which provide the basis
for the proposed disqualification. If the registrant does not respond
in writing within 60 days from the date of receipt of the notice of
intent of disqualification, the detergent disqualification shall become
final by operation of law and the Administrator shall notify the
registrant of such disqualification. If the registrant responds in
writing within 60 days from the date of receipt of the notice of intent
to disqualify, the Administrator shall review and consider all comments
submitted by the registrant before taking final action concerning the
proposed disqualification. The registrants' communications should be
sent to the following address: Director, Field Operations and Support
Division, Mail Code: 6406J, U.S. Environmental Protection Agency, 401 M
Street, SW., Washington, DC 20460.
(4) As part of a written response to a notice of intent to
disqualify, a registrant may request an informal hearing concerning the
notice. Any such request shall state with specificity the information
the registrant wishes to present at such a hearing. If an informal
hearing is requested, EPA shall schedule such a hearing within 90 days
from the date of receipt of the request. If an informal hearing is
held, the subject matter of the hearing shall be confined solely to
whether or not the registrant has complied with the specific data
requirements which provide the basis for the proposed disqualification.
If an informal hearing is held, the designated presiding officer may be
any EPA employee, the hearing procedures shall be informal, and the
hearing shall not be subject to or governed by 40 CFR part 22 or by 5
U.S.C. 554, 556, or 557. A verbatim transcript of each informal hearing
shall be kept and the Administrator shall consider all relevant
evidence and arguments presented at the hearing in making a final
decision concerning a proposed cancellation.
(5) If a registrant who has received a notice of intent to
disqualify submits a timely written response, and the Administrator
decides after reviewing the response and the transcript of any informal
hearing to disqualify the detergent for use in complying with the
requirements of this subpart, the Administrator shall issue a final
disqualification order, forward a copy of the disqualification order to
the registrant by certified mail, and promptly publish the
disqualification order in the Federal Register. Any disqualification
order issued after receipt of a timely written response by the
registrant shall become legally effective five days after it is
published in the Federal Register.
(6) Upon making a final decision to disqualify a detergent additive
package pursuant to this paragraph (g), EPA shall inform all fuel
manufacturers and secondary additive manufacturers whose product
registrations report the potential use of the disqualified detergent
that such detergent is no longer eligible for compliance with the
requirements of this subpart. Such fuel manufacturers and secondary
additive manufacturers shall have 45 days in which to stop using the
ineligible detergent additive package and substitute an eligible
detergent additive. When applicable, EPA shall also notify such parties
that the detergent registration had been created by fraud or other
misconduct, pursuant to paragraph (g)(2) of this section.
Sec. 80.142--80.154 [Reserved]
Sec. 80.155 Controls and prohibitions.
(a) (1) No person shall sell, offer for sale, dispense, supply,
offer for supply, transport, or cause the transportation of gasoline to
the ultimate consumer for use in motor vehicles or in any off-road
engine use (except as provided in Sec. 80.160), or to a gasoline
retailer or wholesale purchaser-consumer, and no person shall additize
gasoline, unless such gasoline has been additized in conformity with
the requirements of Sec. 80.141.
(2) Gasoline has been additized in conformity with the requirements
of Sec. 80.141 when the detergent component satisfies the requirements
of Sec. 80.141 and when:
(i) The gasoline has been additized in conformity with the
detergent composition and purpose-in-use specifications of an
applicable detergent registered under 40 CFR part 79, in accordance
with at least the minimum concentration specifications of a detergent
registered under 40 CFR part 79 or as otherwise provided under
Sec. 80.141(d)(2); or
(ii) The gasoline is composed of two or more commingled gasolines
and each component gasoline has been additized in conformity with the
detergent composition and purpose-in-use specifications of a detergent
registered under 40 CFR part 79, in accordance with at least the
minimum concentration specifications of a detergent registered under 40
CFR part 79 or as otherwise provided under Sec. 80.141(d)(2); or
(iii) The gasoline is composed of a gasoline commingled with a
post-refinery component, and both of these components have been
additized in conformity with the detergent composition and use
specifications of a detergent registered under 40 CFR part 79, in
accordance with at least the minimum concentration specifications of a
detergent registered under 40 CFR part 79 or as otherwise provided
under Sec. 80.141(d)(2).
(b) No person shall blend detergent into gasoline or post-refinery
component unless such person complies with the volumetric additive
reconciliation requirements of Sec. 80.157.
(c) No person shall sell, offer for sale, dispense, supply, offer
for supply, store, transport, or cause the transportation of any
gasoline, detergent, or detergent-additized post-refinery component
unless the product transfer document for the gasoline, detergent or
detergent-additized post-refinery component complies with the
requirements of Sec. 80.158.
(d) No person shall refine, import, manufacture, sell, offer for
sale, dispense, supply, offer for supply, store, transport, or cause
the transportation of any detergent that is to be used as a component
of detergent-additized gasoline or detergent-additized post-refinery
component unless the detergent conforms with the composition
specifications of a detergent registered under 40 CFR part 79, and the
detergent otherwise complies with the requirements of Sec. 80.141.
(e) (1) No person shall sell, offer for sale, dispense, supply,
offer for supply, transport, or cause the transportation of detergentadditized
post-refinery component unless the post-refinery component
has been additized in conformity with the interim detergent program
requirements of Sec. 80.141.
(2) Post-refinery component has been additized in conformity with
the interim detergent program requirements of Sec. 80.141 when the
detergent component satisfies the requirements of Sec. 80.141 and:
(i) The post-refinery component has been additized in accordance
with the detergent composition and use specifications of a detergent
registered under 40 CFR part 79, and in accordance with at least the
minimum concentration specifications of a detergent registered under 40
CFR part 79 or as otherwise provided under Sec. 80.141(d)(2); or
(ii) The post-refinery component is composed of two or more
commingled post-refinery components, and each component has been
additized in accordance with the detergent composition and use
specifications of a detergent registered under 49 CFR part 79, and in
accordance with at least the minimum concentration specifications of a
detergent registered under 40 CFR part 79 or as otherwise provided
under Sec. 80.141(d)(2).
Sec. 80.156 Liability for violations of the interim detergent program
controls and prohibitions.
(a) Persons liable--(1) Gasoline non-conformity. Where gasoline
contained in any storage tank at any facility owned, leased, operated,
controlled or supervised by any gasoline refiner, importer, carrier,
distributor, reseller, retailer, wholesale purchaser-consumer,
oxygenate blender, or detergent blender, is found in violation of any
of the prohibitions specified in Sec. 80.155(a), the following persons
shall be deemed in violation:
(i) Each gasoline refiner, importer, carrier, distributor,
reseller, retailer, wholesale purchaser-consumer, oxygenate blender, or
detergent blender, who owns, leases, operates, controls or supervises
the facility (including, but not limited to, a truck or individual
storage tank) where the violation is found;
(ii) Each gasoline refiner, importer, distributor, reseller,
retailer, wholesale purchaser-consumer, oxygenate blender, detergent
manufacturer, distributor, or blender, who refined, imported,
manufactured, sold, offered for sale, dispensed, supplied, offered for
supply, stored, transported, or caused the transportation of the
detergent-additized gasoline, the base gasoline component, the
detergent component, or the detergent-additized post-refinery
component, of the gasoline that is in violation; and
(iii) Each gasoline carrier who dispensed, supplied, stored, or
transported any gasoline in the storage tank containing gasoline found
to be in violation, and each detergent carrier who dispensed, supplied,
stored, or transported the detergent component of any post-refinery
component or gasoline in the storage tank containing gasoline found to
be in violation, provided that the EPA demonstrates, by reasonably
specific showings by direct or circumstantial evidence, that the
gasoline or detergent carrier caused the violation.
(2) Post-refinery component non-conformity. Where detergentadditized
post-refinery component contained in any storage tank at any
facility owned, leased, operated, controlled or supervised by any
gasoline refiner, importer, carrier, distributor, reseller, retailer,
wholesale purchaser-consumer, oxygenate blender, detergent
manufacturer, carrier, distributor, or blender, is found in violation
of the prohibitions specified in Sec. 80.155(e), the following persons
shall be violation:
(i) Each gasoline refiner, importer, carrier, distributor,
reseller, retailer, wholesale-purchaser consumer, oxygenate blender,
detergent manufacturer, carrier, distributor, or blender, who owns,
leases, operates, controls or supervises the facility (including, but
not limited to, a truck or individual storage tank) where the violation
is found;
(ii) Each gasoline refiner, importer, distributor, reseller,
retailer, wholesale-purchaser consumer, oxygenate blender, detergent
manufacturer, distributor, or blender, who sold, offered for sale,
dispensed, supplied, offered for supply, stored, transported, or caused
the transportation of the detergent-additized post-refinery component,
or the detergent component of the post-refinery component, in
violation; and
(iii) Each carrier who dispensed, supplied, stored, or transported
any detergent-additized post-refinery component in the storage tank
containing post-refinery component in violation, and each detergent
carrier who dispensed, supplied, stored, or transported the detergent
component of any detergent-additized post-refinery component which is
in the storage tank containing detergent-additized post-refinery
component found to be in violation, provided that the EPA demonstrates
by reasonably specific showings by direct or circumstantial evidence,
that the gasoline or detergent carrier caused the violation.
(3) Detergent non-conformity. Where the detergent (prior to
additization) contained in any storage tank or container found at any
facility owned, leased, operated, controlled or supervised by any
gasoline refiner, importer, carrier, distributor, reseller, retailer,
wholesale-purchaser consumer, oxygenate blender, detergent
manufacturer, carrier, distributor, or blender, is found in violation
of the prohibitions specified in Sec. 80.155(d), the following persons
shall be in violation:
(i) Each gasoline refiner, importer, carrier, distributor,
reseller, retailer, wholesale-purchaser consumer, oxygenate blender,
detergent manufacturer, carrier, distributor, or blender, who owns,
leases, operates, controls or supervises the facility (including, but
not limited to, a truck or individual storage tank) where the violation
is found;
(ii) Each gasoline refiner, importer, distributor, reseller,
retailer, wholesale-purchaser consumer, oxygenate blender, detergent
manufacturer, distributor, or blender, who sold, offered for sale,
dispensed, supplied, offered for supply, stored, transported, or caused
the transportation of the detergent that is in violation; and
(iii) Each gasoline or detergent carrier who dispensed, supplied,
stored, or transported any detergent which is in the storage tank or
container containing detergent found to be in violation, providing that
EPA demonstrates, by reasonably specific showings by direct or
circumstantial evidence, that the gasoline or detergent carrier caused
the violation.
(4) Volumetric additive reconciliation. Where a violation of the
volumetric additive reconciliation requirements established by
Sec. 80.155(b) has occurred, each detergent blender who owns, leases,
operates, controls or supervises the facility (including, but not
limited to, a truck or individual storage tank) where the violation has
occurred, shall be in violation.
(5) Product transfer document. Where a violation of Sec. 80.155(c)
is found at a facility owned, leased, operated, controlled, or
supervised by any gasoline refiner, importer, carrier, distributor,
reseller, retailer, wholesale-purchaser consumer, oxygenate blender,
detergent manufacturer, carrier, distributor, or blender, the following
persons shall be in violation: each gasoline refiner, importer,
carrier, distributor, reseller, retailer, wholesale-purchaser consumer,
oxygenate blender, detergent manufacturer, carrier, distributor, or
blender, who owns, leases, operates, control or supervises the facility
(including, but not limited to, a truck or individual storage tank)
where the violation is found.
(b) Branded refiner vicarious liability. Where any violation of the
prohibitions specified in Sec. 80.155 has occurred, with the exception
of violations of Sec. 80.155(c), a refiner will also be deemed liable
for violations occurring at a facility operating under such refiner's
corporate, trade, or brand name or that of any of its marketing
subsidiaries. For purposes of this section, the word facility includes,
but is not limited to, a truck or individual storage tank.
(c) Defenses. (1) In any case in which a gasoline refiner,
importer, distributor, carrier, reseller, retailer, wholesale-purchaser
consumer, oxygenate blender, detergent distributor, carrier, or
blender, is in violation of any of the prohibitions of Sec. 80.155, the
regulated party shall be deemed not in violation if it can demonstrate:
(i) That the violation was not caused by the regulated party or its
employee or agent;
(ii) That product transfer documents account for the gasoline,
detergent, or detergent-additized post-refinery component in violation
and indicate that the gasoline, detergent, or detergent-additized postrefinery
component satisfied relevant requirements when it left their
control; and
(iii) That the party has fulfilled the requirements of paragraphs
(c) (2) or (3) of this section, as applicable.
(2) Branded refiner. (i) Where a branded refiner, pursuant to
paragraph (b) of this section, is in violation of any of the
prohibitions of Sec. 80.155 as a result of violations occurring at a
facility (including, but not limited to, a truck or individual storage
tank) which is operating under the corporate, trade or brand name of a
refiner or that of any of its marketing subsidiaries, the refiner shall
be deemed not in violation if it can demonstrate, in addition to the
defense requirements stated in paragraph (c)(1) of this section, that
the violation was caused by:
(A) An act in violation of law (other than these regulations), or
an act of sabotage or vandalism, whether or not such acts are
violations of law in the jurisdiction where the violation of the
prohibitions of Sec. 80.155 occurred; or
(B) The action of any gasoline refiner, importer, reseller,
distributor, oxygenate blender, detergent manufacturer, distributor,
blender, or retailer or wholesale purchaser-consumer supplied by any of
these persons, in violation of a contractual undertaking imposed by the
refiner designed to prevent such action, and despite the implementation
of an oversight program, including, but not limited to, periodic review
of product transfer documents by the refiner to ensure compliance with
such contractual obligation; or
(C) The action of any gasoline or detergent carrier, or other
gasoline or detergent distributor not subject to a contract with the
refiner but engaged by the refiner for transportation of gasoline,
post-refinery component, or detergent, to a gasoline or detergent
distributor, oxygenate blender, detergent blender, gasoline retailer or
wholesale purchaser consumer, despite specification or inspection of
procedures or equipment by the refiner which are reasonably calculated
to prevent such action.
(ii) In this paragraph (c)(2), to show that the violation ``was
caused'' by any of the specified actions, the party must demonstrate by
reasonably specific showings, by direct or circumstantial evidence,
that the violation was caused or must have been caused by another.
(3) Detergent blender. In any case in which a detergent blender is
liable for violating any of the prohibitions of Sec. 80.155, the
detergent blender shall not be deemed in violation if it can
demonstrate, in addition to the defense requirements stated in
paragraph (c)(1) of this section, the following:
(i) That it obtained or supplied, as appropriate, prior to the
detergent blending, written instructions from the detergent
manufacturer or other party with knowledge of such instructions,
specifying the detergent's minimum recommended concentration as found
in the 40 CFR part 79 registration and, where appropriate, the
detergent's use limitations in regard to leaded product; and
(ii) That it has implemented a quality assurance program that
includes, but is not limited to, a periodic review of supporting
product transfer and volume measurement documents to confirm the
correctness of the product transfer and volumetric additive
reconciliation documents created for the additized product.
(4) Detergent manufacturer. In any case in which a detergent
manufacturer would be liable for violating any of the prohibitions of
Sec. 80.155 pursuant to paragraph (a) of this section, the detergent
manufacturer shall not be in violation if it can demonstrate the
following:
(i) Product transfer documents which account for the detergent
component of the product in violation and which indicate that such
detergent satisfied relevant requirements when it left the detergent
manufacturer's control;
(ii) Test results performed in accordance with the detergent
testing analysis submitted, or available for submission, by the
manufacturer to EPA as part of the interim detergent program
requirements. The test results must accurately establish that the
detergent component of the product determined to be in violation was in
conformity with the composition and concentration specifications of the
detergent's 40 CFR part 79 registration when the detergent left the
manufacturer's control; and
(iii) Written blending instructions that were supplied by the
detergent manufacturer to its customer who purchased or obtained from
the manufacturer the detergent component of the product determined to
be in violation. The written blending instructions, which must have
been supplied by the manufacturer to the customer prior to the
customer's use or sale of the detergent, must accurately identify the
minimum recommended concentration of the detergent necessary to control
deposits, as specified in the detergent's 40 CFR part 79 registration,
and must also accurately identify if the detergent, at that
concentration, is only registered as effective for use in leaded
gasoline.
(d) Detergent manufacturer causation liability. In any case in
which a detergent manufacturer is liable for a violation of Sec. 80.155
pursuant to paragraph (a) of this section, and the manufacturer
establishes affirmative defense to such liability pursuant to paragraph
(c) of this section, the detergent manufacturer will be liable for the
violation of Sec. 80.155 pursuant to this paragraph (d) of this
section, provided that EPA can demonstrate, by reasonably specific
showings by direct or circumstantial evidence, that the detergent
manufacturer caused the violation.
Sec. 80.157 Volumetric additive reconciliation (``VAR''), equipment
calibration, and recordkeeping requirements.
This section contains requirements for automated detergent blending
facilities and hand-blending detergent facilities. All gasolines and
all post-refinery components (PRC) intended for use in gasoline must be
additized, unless otherwise noted in supporting VAR records, and must
be accounted for in VAR records. The VAR reconciliation standard is
attained under this section when the actual concentration of detergent
used per VAR record equals or exceeds the lowest additive concentration
(LAC) specified for that detergent in its 40 CFR part 79 registration,
except as may be modified pursuant to Sec. 80.141(d)(2). Each VAR
record must identify the brands and grades of gasoline, and the types
of PRC, being measured on that record. There must be a separate VAR
record for leaded gasoline being additized with a detergent registered
as effective for use with leaded gasoline only, or used at a
concentration that is registered as effective for leaded gasoline only.
Detergent being so used must be accurately and separately measured,
either through the use of a separate storage tank for it, or a separate
meter, or the use of some other measurement system that is able to
accurately distinguish its use from that of other detergents.
Measurements of detergent and gasoline must be precise to at least the
nearest gallon.
(a) For an automated detergent blending facility, for each VAR
period, for each detergent storage tank and each detergent in that
storage tank, the following must be recorded:
(1) The manufacturer and commercial identifying name of the
detergent additive package being reconciled, and the LAC specified for
that detergent in its 40 CFR part 79 registration for use with the
applicable type of gasoline (i.e., unleaded or leaded). The LAC must be
expressed in terms of gallons of detergent per gallons of gasoline. The
record must indicate if the specified LAC is only effective for use
with leaded gasoline.
(2) The total volume of detergent blended into gasoline and PRC, in
accordance with either paragraph (a)(2)(i) or paragraph (a)(2)(ii) of
this section, as applicable.
(i) For a facility which uses in-line meters to measure detergent
usage, the total volume of detergent measured, together with supporting
data which includes one of the following: the beginning and ending
meter readings for each meter being measured, the metered batch volume
measurements for each meter being measured, or other comparable metered
measurements. The supporting data may be supplied in the form of
computer printouts or other comparable documentation.
(ii) (A) For a facility which uses a gauge to measure the inventory
of the detergent storage tank, the total volume of detergent shall be
calculated from the following equation:
Detergent Volume = (A)-(B)+(C)-(D)
where:
A = initial detergent inventory of the tank
B = final detergent inventory of the tank
C = sum of any additions to detergent inventory
D = sum of any withdrawals from detergent inventory for purposes other
than the additization of gasoline or PRC.
(B) The value of each of the variables in the equation in paragraph
(a)(2)(ii)(A) of this section must be separately recorded. In addition,
a list of each detergent addition included in variable C and a list of
each detergent withdrawal included in variable D must be provided.
(3) The total volume of gasoline plus PRC to which detergent has
been added, together with supporting data which includes one of the
following: the beginning and ending meter measurements for each meter
being measured, the metered batch volume measurements for each meter
being measured, or other comparable metered measurements. The
supporting data may be supplied in the form of computer printouts or
other comparable data.
(4) The actual detergent concentration, calculated as the total
volume of detergent added (pursuant to paragraph (a)(2) of this
section), divided by the total volume of gasoline plus PRC (pursuant to
paragraph (a)(3) of this section).
(5) A list of each concentration rate initially set for the
detergent that is the subject of the VAR record, together with the date
and description of each adjustment to any initially set concentration.
The concentration adjustment information may be supplied in the form of
computer printouts or other comparable documentation. No concentration
setting is permitted below the applicable LAC specified in the
detergent's 40 CFR part 79 registration, except as may be modified
pursuant to Sec. 80.141(d)(2).
(6) The dates of the VAR period, which shall be no greater than a
calendar month, and which shall in no event terminate beyond the end of
the calendar month in which that VAR period began. Any adjustment to
any detergent concentration rate more than 10 percent over the
concentration rate initially set in the VAR period shall terminate that
VAR period and initiate a new VAR period.
(b) For a hand-blending detergent facility where any non-automated
method is used to blend detergent, for each detergent and for each
batch of gasoline and each batch of PRC to which the detergent is being
added, the following shall be recorded:
(1) The manufacturer and commercial identifying name of the
detergent additive package being reconciled, and the LAC specified for
that detergent in its 40 CFR part 79 registration for use with the
applicable type of gasoline (i.e., unleaded or leaded). The LAC must be
expressed in terms of gallons of detergent per gallons of gasoline. The
record must indicate if the specified LAC is only effective for use
with leaded gasoline.
(2) The date of the additization that is the subject of the VAR
record.
(3) The volume of added detergent.
(4) The volume of the batch of gasoline and/or PRC to which the
detergent has been added.
(5) The brand, grade, and leaded/unleaded status of gasoline, and/
or the type of PRC.
(6) The actual detergent concentration, calculated as the volume of
added detergent (pursuant to paragraph (b)(3) of this section), divided
by the volume of gasoline and/or PRC (pursuant to paragraph (b)(4) of
this section).
(c) Every VAR formula record created pursuant to paragraphs (a) and
(b) of this section shall contain the following:
(1) The signature of the creator of the VAR record;
(2) The date of the creation of the VAR record; and
(3) A certification of correctness by the creator of the VAR
record.
(d) Automated detergent blenders must calibrate their detergent
equipment each calendar quarter, in January, April, July, and October
and each time the detergent package is changed.
(e) The following VAR supporting documentation must also be created
and maintained; all volume measurements must be to at least the nearest
gallon in accuracy:
(1) For all automated detergent blending facilities, documentation
reflecting performance of the calibrations required by paragraph (d) of
this section, and any associated adjustments of the automated detergent
equipment;
(2) For all automated detergent blending facilities, a record
specifying, for each VAR period, the volume in gallons of each transfer
from the facility of unadditized base gasoline, identifying its date of
transfer and the name of the recipient;
(3) For all hand blending facilities which are terminals, a monthly
record specifying the volume in gallons of each transfer from the
facility of unadditized base gasoline, identifying its date of transfer
and the name of the recipient; and
(4) For all detergent blending facilities, product transfer
documents for all gasoline, detergent and detergent-additized postrefinery
component transferred into or out of the facility; in
addition, bills of lading, transfer, or sale for all unadditized postrefinery
component transferred into the facility.
(f) All detergent blenders shall retain the documents required to
be created by this section for a period of five years from the date the
VAR calculation records and VAR supporting documentation are created
pursuant to this section, and shall deliver them to the EPA
Administrator, or the Administrator's authorized representative, upon
the Administrator's or the Administrator's authorized representative's
request.
Sec. 80.158 Product transfer documents.
(a) Contents. For each occasion when any gasoline refiner,
importer, reseller, distributor, carrier, retailer, wholesale
purchaser-consumer, oxygenate blender, detergent manufacturer,
distributor, carrier, or blender, transfers custody or title to any
gasoline, detergent, or detergent-additized post-refinery component
other than when detergent-additized gasoline is sold or dispensed at a
retail outlet or wholesale purchaser-consumer facility to the ultimate
consumer for use in motor vehicles, the transferor shall provide to the
transferee, and the transferee shall acquire from the transferor,
documents which accurately include the following information:
(1) The name and address of the transferee;
(2) The name and address of the transferor;
(3) The date of the transfer;
(4) The volume of product transferred;
(5)(i) The identity of the product being transferred (i.e., its
identity as base gasoline, detergent, detergent-additized gasoline, or
a specifically named detergent-additized oxygenate or detergentadditized
gasoline blending stock that comprises a detergent-additized
post-refinery component);
(ii) If the product being transferred consists of two or more
different types of product subject to this regulation, i.e., base
gasoline, detergent-additized gasoline; or specified detergentadditized
post-refinery component, then the product transfer document
for the commingled product must identify each such type of component
contained in the commingled product;
(6) If the product being transferred is base gasoline, the
following must be stated on the product transfer document: ``Base
gasoline--Not for sale to the ultimate consumer'';
(7) The name of the detergent as specified in its 40 CFR part 79
registration must be used to identify the detergent on its product
transfer document;
(8) If the product being transferred is a leaded gasoline as
defined in Sec. 80.2(f), then the product transfer document must
identify the product as leaded base gasoline or leaded detergentadditized
gasoline, as applicable;
(9) If the product being transferred is detergent that is only
authorized for the control of carburetor deposits, then the following
must be stated on the detergent's transfer document: ``For use with
leaded gasoline only'';
(10) If the product being transferred is detergent-additized
gasoline that has been over-additized in anticipation of the later (or
earlier) addition of post-refinery component, a statement that the
product has been over-additized to account for a specified volume in
gallons of additional, specified post-refinery component.
(b) Gasoline cannot be additized with a detergent authorized only
for the control of carburetor deposits and whose product transfer
document states ``For use with leaded gasoline only'', and gasoline
cannot be additized at the lower concentration specified for a
detergent authorized at a lower concentration for the control of
carburetor deposits only, unless the product transfer document for the
gasoline to be additized identifies it as leaded gasoline.
(c) Recordkeeping period. Any person creating, providing or
acquiring product transfer documentation for gasoline, detergent, or
detergent-additized post-refinery component shall retain the documents
required by this section for a period of five years from the date the
product transfer documentation was created, received or transferred,
and shall deliver such documents to EPA upon request.
Sec. 80.159 Penalties.
(a) General. Any person who violates any prohibition or affirmative
requirement of Sec. 80.155 shall be liable to the United States for a
civil penalty of not more than the sum of $25,000 for every day of such
violation and the amount of economic benefit or savings resulting from
the violation.
(b) Gasoline non-conformity. Any violation of Sec. 80.155(a) shall
constitute a separate day of violation for each and every day the
gasoline in violation remains at any place in the gasoline distribution
system, beginning on the day that the gasoline is in violation of the
respective prohibition and ending on the last day that such gasoline is
offered for sale or is dispensed to any ultimate consumer.
(c) Detergent non-conformity. Any violation of Sec. 80.155(d) shall
constitute a separate day of violation for each and every day the
detergent in violation remains at any place in the gasoline or
detergent distribution system, beginning on the day that the detergent
is in violation of the prohibition and ending on the last day that
detergent-additized gasoline, containing the subject detergent as a
component thereof, is offered for sale or is dispensed to any ultimate
consumer.
(d) Post-refinery component non-conformity. Any violation of
Sec. 80.155(e) shall constitute a separate day of violation for each
and every day the post-refinery component in violation remains at any
place in the post-refinery component or gasoline distribution system,
beginning on the day that the post-refinery component is in violation
of the respective prohibition and ending on the last day that
detergent-additized gasoline containing the post-refinery component is
offered for sale or is dispensed to any ultimate consumer.
(e) Product transfer document non-conformity. Any violation of
Sec. 80.155(c) shall constitute a separate day of violation for every
day the product transfer document is not fully in compliance. This is
to begin on the day that the product transfer document is created or
should have been created and to end at the later of the following
dates: Either the day that the document is corrected and comes into
compliance, or the day that gasoline not additized in conformity with
interim detergent program requirements, as a result of the product
transfer document non-conformity, is offered for sale or is dispensed
to the ultimate consumer.
(f) Volumetric additive reconciliation (VAR) record keeping nonconformity.
Any VAR recordkeeping violation of Sec. 80.155(b) shall
constitute a separate day of violation for every day that VAR
recordkeeping is not fully in compliance. Each element of the VAR
record keeping program that is not in compliance shall constitute a
separate violation for purposes of this section.
(g) Volumetric additive reconciliation (VAR) compliance standard
non-conformity. Any violation of the VAR compliance standard
established in Sec. 80.157 shall constitute a separate day of violation
for each and every day of the VAR compliance period in which the
standard was violated.
(h) Volumetric additive reconciliation (VAR) equipment calibration
non-conformity. Any VAR equipment calibration violation of
Sec. 80.155(b) shall constitute a separate day of violation for every
day a VAR equipment calibration requirement is not met.
Sec. 80.160 Exemptions.
(a) Research, development, and testing exemptions. Any detergent
that is either in a research, development, or test status, or is sold
to petroleum, automobile, engine, or component manufacturers for
research, development, or test purposes, is exempted from the
provisions of the interim detergent program, provided that:
(1) The detergent (or fuel containing the detergent) is kept
segregated from non-exempt product, and the party possessing the
product maintains documentation identifying the product as research,
development, or testing detergent or fuel, as applicable, and stating
that it is to be used only for research, development, or testing
purposes; and
(2) The detergent (or fuel containing the detergent) is not sold,
offered for sale, transferred, or offered for transfer from a retail
outlet. It shall also not be transferred or offered for transfer from a
wholesale purchaser-consumer facility, unless such facility is
associated with detergent or fuel research, development or testing; and
(3) The party using the product for research, development, or
testing purposes notifies the EPA, on at least an annual basis and
prior to the use of the product, of the purpose(s) of the program(s) in
which the product will be used and the volume of the product to be
used. This information must be submitted to the following EPA address:
Director (6406J), Field Operations and Support Division, U.S.
Environmental Protection Agency, 401 M Street SW., Washington, DC
20460.
(b) Racing fuel and aviation fuel exemptions. Any fuel that is
refined, sold, offered for sale, transferred, or offered for transfer
as automotive racing fuel or as aircraft engine fuel, is exempted from
the provisions of the interim detergent program, provided that:
(1) The fuel is kept segregated from non-exempt fuel, and the party
possessing the fuel for the purposes of refining, selling, offering for
sale, transferring, or offering for transfer the fuel as automotive
racing fuel or as aircraft engine fuel, maintains documentation
identifying the product as racing fuel or aviation fuel, as applicable,
and stating that is it not for street or highway use in motor vehicles;
and
(2) The fuel is not sold, offered for sale, transferred, or offered
for transfer for highway use in a motor vehicle; and
(3) In the case of racing fuel, the fuel is sold, offered for sale,
transferred, or offered for transfer to the ultimate consumer only at a
racing facility.
Sec. 80.161-80.169 [Reserved]
[FR Doc. 94-26515 Filed 10-31-94; 8:45 am]
BILLING CODE 6560-50-P