Fuels and Fuel Additives: Deposit Control Gasoline Additives; Final
Rule
[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
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