Regulation of Fuels and Fuel Additives: Interim Requirements for Deposit Control Gasoline Additives

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

1. Statutory Provisions and Legal Authority

2. 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

1. 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

2. Requirements for Fuel Manufacturers

C. Requirements for Leaded Gasoline

D. Summary and Analysis of Comments

1. 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

2. 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

1. Part 79 Registration Conformity

2. Volume Reconciliation

3. Product Transfer Documents

4. Liability and Defenses

5. Exemptions

B. Analysis of Public Comments and Significant Rule Changes

1. 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

2. Record Maintenance Requirements

a. Five Year Record Retention

b. Place and Manner of Record Retention

3. Transfer Documentation

4. 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

5. California Gasoline

6. Exemptions

7. 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

1. 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 off-

road, 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 chemistry-

based 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).

1. 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. detergent-

active 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 detergent-

active 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 ``re-

registered'' 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 carburetor-

type 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 carburetor-

type 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

1. 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 carburetor-

type 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 flexible-

fueled 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 flexible-

fueled 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.

1. 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.

2. 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 under-

additization 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.

3. 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.

4. 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 non-

conformities. 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 non-

conforming 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.

5. 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

1. 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 per-

batch 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 per-

batch 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 tank-

gauged or metered measurements must be the basis of the detergent

volume figures reported on the VAR record. Since there must be some

numeric measurement as a realistic basis for the reported VAR detergent

volumes, however, today's rule does require that either meters or

gauges must be used.

c. Use of Multiple Concentration Rates in One VAR Record. Arco

Refining Company commented that its additization equipment was capable

of measuring and automatically switching to a variety of set

concentration rates depending on the type of gasoline needing

additization. One detergent package was sometimes used at different

concentration rates, as needed for the different grades of gasoline

being additized. Arco was concerned because the automated formulas

proposed in the NPRM would require the creation of a new VAR

calculation period every time the concentration rate was automatically

altered. EPA agrees that this would be burdensome, and the Agency does

not desire to penalize parties for acquiring newer equipment that can

measure several concentration rates. Therefore, the interim program's

automated formula permits automated parties to utilize different

concentrations in actual usage, provided that only one physical

detergent package is being measured, and provided that each

concentration rate being used is indicated on the VAR record (except as

discussed in the following paragraph). If any of the initial

concentration rates are raised in the reconciliation period, the

blender must follow the procedures described below.

The exception to the general principle that multiple concentration

rates will be permitted to be measured in one VAR record concerns

detergents to be used with leaded product. If a detergent has been

registered with two minimum effective lowest concentrations, and the

lower of the two is to be used solely with leaded gasoline, a single

VAR record cannot be used to calculate compliance for both

concentrations. This is because the actual concentration rate attained

would have to be compared to two different lowest effective rates,

which would make the formula meaningless. In order to determine if a

VAR violation has occurred in the above circumstances, the blender

would have to complete a separate VAR record for each concentration

rate at which the detergent is registered for use. For this record to

be accurate, the blender must separately measure the detergent being

used at the lower rate. The blender could have a separate tank for the

detergent so used, or a separate meter for it, or some other way to

accurately distinguish the use of detergent at the lower concentration.

d. Detergent Concentration Rate Adjustments. The Agency is very

concerned with preventing automated blenders from compensating for

significant under-additization discovered in a compliance period by

altering their concentration rate so as to significantly over-additize

later loads in the compliance period. Additization of any load of

gasoline below the minimum concentration is not acceptable, because the

Agency wants to assure that all gasoline being sold to the consumer is

appropriately additized. Over-additization of later batches of gasoline

as compensation for prior under-additization is also inappropriate

because of concerns that over-additization may contribute to automotive

combustion chamber deposits.

To address this concern, the NPRM proposed that detergent blenders

would not be permitted in a VAR period to alter the concentration rates

that their additization equipment had been set for. In the NPRM

proposal, if any such adjustment occurred, then the VAR period was

terminated, and a new VAR period was required to be initiated.

API presented the results of an industry survey indicating that

industry presently experienced an enormous range in ability to attain a

VAR standard accurately. API suggested that EPA should institute the

use of an enforcement tolerance in determining compliance with the VAR

standard to acknowledge and account for the wide range in equipment

variation in ability to ensure full accuracy.

For reasons discussed below, the Agency has decided that the use of

an enforcement tolerance in the detergent regulatory context is

inappropriate. However, the Agency acknowledges that without an

enforcement tolerance, many detergent blenders would find it extremely

difficult to attain the VAR standard without the ability to adjust

detergent concentration rates throughout the compliance period.

Consequently, the final rule will permit limited adjustment of

concentration rates within the VAR period during the interim period.

Extreme adjustments, however, will be prohibited, so that excessive

swings in additization will not occur. In no event may any

concentration rate be altered in any compliance period higher than 10

percent over the concentration specified as the initially set rate.

The 10 percent figure was chosen because the industry VAR survey

results submitted by API reveal that at least 10 percent VAR monthly

accuracy is already obtained by many automated blending parties (73

percent of company-owned responding parties, and 37 percent of systems

operated by exchange agreement or third party terminals). Since many

detergent blenders already attain a monthly VAR accuracy within 10

percent of target, the interim program reasonably prohibits automated

blenders from altering their concentration rate above 10 percent of the

target. This provides blenders with some flexibility in meeting the

monthly compliance standard, while discouraging excessive fluctuations

from the standard per-batch additization rate.

To assure that adjustments beyond 10 percent of the indicated

concentration will not be made, the final rule requires that any

adjustment beyond the 10 percent cut-off will terminate the VAR period,

necessitating the start of a new VAR calculation. Blenders will be

required to indicate on the VAR record each set concentration rate used

at the beginning of the VAR period, and all changes to each rate that

occurred during the period must be reported on the VAR record or

otherwise be made available.

e. Reconciliation Period. EPA proposed that automated blenders must

perform at least weekly detergent reconciliations. This final rule,

however, permits monthly reconciliation periods. The vast majority of

commenters urged adoption of the longer period. They asserted that a

monthly period was more consistent with the reconciliation period

presently being used by industry and the recordkeeping period required

in the CARB detergent regulation. API presented evidence from its

member survey indicating that none of the 2,199 exchange agreement or

third party systems responding to its survey conducted reconciliation

more frequently than monthly.

The Agency has decided to accept the monthly reconciliation period

already being used by a majority of industry, rather than require a

shift to a shorter period for the interim rule. One goal of choosing

this period was to prevent lead time problems that parties might

experience in implementing a weekly reconciliation period in time for

the January 1, 1995 effective date of this rule.

EPA believes the monthly time frame provides reasonable assurance

that individual loads will be additized properly. Although monthly

averaging includes greater volumes than weekly calculations, and thus

tolerates somewhat greater inaccuracy than weekly reconciliation, the

number of additizations performed by the typical additization terminal

per month is sufficiently small to ensure the results should reasonably

approximate per-batch additization accuracy. In addition, EPA feels

that the prohibition against altering the detergent concentration in

the compliance period above 10 percent of the set concentration rate

will further assure that significant per-batch under-additization will

not occur.

However, EPA is not willing to further lengthen the VAR compliance

period. Some commenters urged adoption of a quarterly reconciliation

period, saying that a quarterly approach would be consistent with some

other EPA record keeping requirements, such as the quarterly lead phase

down and quarterly reformulated gasoline reporting requirements. EPA

does not agree that quarterly reconciliation would be appropriate for

detergent additization. First, the detergent program does not have the

reporting requirements or the exhaustively detailed reconciliation

requirements that exist alongside the quarterly reconciliation

requirements found in the reformulated gasoline program. Second, a

quarterly detergent reconciliation period would involve averaging

approximately 2,500 truckloads for the typical terminal, so that a

quarterly averaging period would not give sufficient guarantee that the

gasoline being sold to the ultimate consumer was adequately additized

as required by section 211(l). Even if the typical number of truckloads

is actually somewhat smaller, as the National Petroleum Refiners

Association argues, the large number of batches being additized over a

quarterly period in the typical terminal is too great to permit

reasonable assurance of adequate per-batch additization.

Although the Agency is promulgating a monthly reconciliation

requirement in this rule, the Agency is still concerned about assuring

as much per-gallon accuracy as possible in the final detergent

certification rule. Some ideas being considered for the certification

rule, in addition to the 10 percent concentration alteration cut off,

involve creating a weekly compliance period and/or establishing a

minimum per-gallon requirement that must be met in addition to meeting

the averaged standard within the compliance period.

f. Transfers of Unadditized Gasoline. As was proposed in the NPRM,

the transfer of unadditized gasoline from detergent blending terminals

is not prohibited under this final rule. Information about such

transfers, however, will be required to be recorded. The NPRM required

transfers of unadditized product to be accounted for within the VAR

formula. The interim program deletes this requirement from the formula

itself. Such information about transfers from inventory is only

significant to the accuracy of formulas based on inventory

measurements. The new automated VAR formula permits measurements based

on metered flow usage as well as on inventory changes. In cases of such

metered measurements, information on inventory transfers is not

relevant to the formula's accuracy. However, information about such

transfers, outside of the formulas, is required to be compiled as a

supporting document to the VAR records of all automated parties, since

such information is vitally important to EPA in ascertaining that all

product has been properly additized. In addition, any hand detergent

blender which is a terminal must also compile this information.

g. Equipment Calibration Requirements. EPA received several

comments about the quarterly calibration requirement for automated

detergent blenders proposed in the NPRM. The National Petroleum

Refiners Association urged EPA to clarify whether the calibration

requirement would pertain only to the detergent equipment meters, or

also to the injectors. The Agency clarifies in this rule that it is the

additization system, i.e., the injector flow as measured by the meters,

that must be regularly calibrated to ensure that the system's

measurements are accurate. It is the additization system's accuracy as

a whole that is important.

EPA is today finalizing the requirement proposed in the NPRM that

the automated equipment be calibrated quarterly, in spite of the

National Petroleum Refiners' request that calibration be required only

annually. The detergent rule continues the quarterly calibration

requirement because such calibration intervals should result in some

realistic compensation for the temperature-related changes in equipment

accuracy resulting from seasonal variations in detergent viscosity.

Since it would be unrealistic and expensive to require continuous

equipment calibration to compensate for every temperature-related

viscosity change, a quarterly calibration requirement would at least

give some assurance of accuracy of the VAR required measurements. It

would also give assurance of timely correction of normal variations in

equipment accuracy that occur over time.

EPA received industry comment that variations in viscosity between

different detergent packages requires calibration of the additization

equipment when detergent packages are changed, in order to maintain

measurement accuracy. In response to this comment, the final rule

requires automated blenders to calibrate their measuring equipment each

time they change the detergent package being measured.

h. VAR Enforcement Tolerance. Many parties commented on the need

for an enforcement tolerance to be used in determining VAR violations.

After reviewing these comments, EPA reaffirms the position taken in the

NPRM that enforcement tolerance for VAR violations would be

inappropriate. The Clean Air Act does not require the Agency to

establish an enforcement tolerance in the detergent program. Absent a

specific directive from Congress, the matter of enforcement tolerance

is left to the Agency's discretion, and EPA considers such a tolerance

in the VAR context to be neither necessary nor environmentally

beneficial.

The Agency has never announced an enforcement tolerance in its

fuels programs for parties with primary control over attaining

standards. Such tolerances have only periodically been established for

downstream parties who have much less ability than primary parties to

control accuracy. Furthermore, EPA fuels programs have never announced

enforcement tolerances for parties with primary control when standards

can be met through averaging, since averaging is a process that has

built-in tolerance of deviations from the standard.

While API has submitted survey data to EPA indicating that many

automated detergent blenders do not presently attain a high degree of

VAR accuracy, this information does not at all confirm that, in the

future, industry would not be able to fulfill an averaged compliance

standard if it were legally required. EPA believes industry should be

able to attain the VAR compliance standard over the reconciliation

period. The interim rule will allow detergent blenders to correct, and

even compensate for, mis-additizations that occur within the VAR

period, provided that they do so within the 10 percent rate alteration

limit. The averaging implicit in this flexibility is sufficient to

permit responsible parties to meet the standard, provided that they

implement reasonable quality control procedures. Therefore, EPA does

not believe that an enforcement tolerance is appropriate here.

An enforcement tolerance is also not needed, nor would it be

beneficial, in the hand blending situation, since hand blenders do not

have to use variable mechanical equipment in their blending.

Industry commented about the need for enforcement tolerances in

other areas involving enforcement standards proposed in the NPRM, such

as in performance testing of detergents. None of these comments pertain

directly to today's rule, since the rule promulgated today does not

require specific detergent performance tests. However, if the presence

of lead in gasoline being additized with a detergent effectively

registered for use only with leaded gasoline should become an issue,

testing of lead and phosphorus to determine the legal identity of

leaded gasoline will be conducted by the Agency according to the

specifications listed in Appendices B and A, respectively, of 40 CFR

Part 80. No enforcement tolerance has been created in the past for lead

or phosphorus testing, and none is being contemplated now.

i. Over-Additization. Under the proposed regulations, over-

additization of gasoline was considered a violation of the VAR

standard, since compliance with the proposed VAR formula only existed

if actual usage of detergent equalled the required usage. In the NPRM,

however, the Agency explained that it did not intend to treat over-

additization as a violation, since data was not available establishing

the point at which over-additization became environmentally harmful.

The final rule promulgated today clarifies this situation, and

specifies that VAR accounting compliance occurs when the actual

detergent concentration equals or exceeds the minimum concentration

specified in the detergent's Part 79 registration. This clarification

codifies EPA's intent that over-additization would not be considered a

violation of the VAR standard. Both API and Amoco had commented that

they did not support a limit on additization over the minimum treat

rate.

Some auto industry commenters expressed fears that over-

additization might result in an increase in combustion chamber

deposits. As discussed in Section I.C, EPA is concerned about this

matter, and intends to re-visit this issue in the near future. For the

duration of this interim program, however, over-additization will not

be considered a violation.

The Agency does not believe that our decision to permit over-

additization in the interim period will result in the occurrence of

significant over-additization. The expense involved with adding

detergents to gasoline should mitigate against any significant overuse

of detergents. However, the fact that over-additization cannot at this

time be considered a violation should not be construed as approval by

EPA of over-additization, since serious concerns do exist about the

potential harmful effects of over-additization.

j. VAR for Hand Blenders. EPA also received comment about the

formula proposed for hand blending detergent facilities. The National

Petroleum Refiners Association informed EPA that, typically, carrier

drivers do not have the information necessary to comply with the VAR

calculation requirements proposed in the NPRM. EPA agrees with this

comment, and has thus modified the formula for hand blending facilities

to include only information that the hand blender must possess in order

to additize properly, i.e., the amount of gasoline or post-refinery

component additized, the amount of detergent actually blended, and the

Part 79 registered minimum recommended detergent concentration rate.

2. Record Maintenance Requirement

a. Five Year Record Retention. The NPRM proposed that all VAR and

transfer documents required to be created under the detergent rule must

be maintained for five years. Many commenters requested that the

proposed five year requirement be reduced because it was considered too

burdensome. Western Independent Refiners Association also asserted that

the proposed retention period violated the Paperwork Reduction Act

(PRA), 44 U.S.C. Sec. 3501 et seq; 5 CFR Sec. 1320. Regulations

promulgated under the PRA state that the Office of Management and

Budget will not approve record retention requirements for periods

greater than three years, unless an Agency can establish substantial

need for a longer required retention period. Alternative retention

periods suggested by commenters included three, two, or even one year.

In this rule, EPA is promulgating the five year record retention

period. EPA is aware of the burden of retaining records for the five

year time period, and has alleviated this burden by deleting the

proposed ``place of creation'' record retention requirements in the

final rule (see next section).

The five year retention period is necessary for several reasons.

The first is the enforcement reality that there are an enormous number

of gasoline facilities subject to enforcement under this rule.

Typically, inspections at particular facilities will therefore be

widely spaced. Under these circumstances, EPA needs to be able to deter

detergent violations by having the ability to review records over a

significant period. Secondly, EPA expects that the detergent program

will be enforced, to a significant extent, through review of records,

as no standardized test has yet been developed to identify detergent in

gasoline. In the absence of the ability to conduct extensive testing,

records become extremely important in determining violations, and the

Agency needs to have extensive record review ability to effectively

enforce the program. Finally, the five year period is reasonable

because it corresponds to the five year statute of limitations typical

for fuels enforcement violations. Pursuant to the regulations

implementing the Paperwork Reduction Act, 5 CFR 1320.6, EPA believes

that these factors demonstrate that there is substantial need for

record maintenance beyond three years.

b. Place and Manner of Record Retention. The NPRM proposed that

records must be retained in the place that they were created. It

further proposed that VAR records must be maintained together with the

transfer documents for the product covered by the VAR records.

Several commenters argued that industry should be able to maintain

records centrally, or in any appropriate place, as long as the records

were made available to EPA when requested. These commenters felt the

proposed requirement that records be maintained at the facility where

created was inconsistent with current business practices and was unduly

burdensome. EPA agrees that the place of record retention should be

left to the discretion of the regulated party, provided that the

records are available for EPA inspection. The final rule reflects this

revision.

National Petroleum Refiners Association disapproved of the proposed

requirement that product transfer documents be maintained together with

the mass balance (VAR) records with which they are associated. The

National Petroleum Refiners argued that this requirement would

necessitate a massive amount of burdensome sorting and collating of

records. The intent of the proposed requirement was to help EPA in its

auditing of the VAR records, by making easily accessible some of the

primary records that support the validity of the VAR calculations. EPA

agrees, however, that this collating requirement would produce

significant space and labor costs for industry. Since other EPA fuels

enforcement programs are effective without such a requirement, EPA has

decided to delete this collating requirement from the interim detergent

program.

3. Transfer Documentation

EPA proposed that product transfer documents be created and

transferred with each transfer of detergent, gasoline, and post-

refinery component. The product transfer documents would identify the

product and provide important information about the product.

Several parties had comments about the proposed product transfer

document requirements. Unocal Corporation argued that product transfer

documents should not be required to be maintained at all, since the

Agency was requiring mass balance (VAR) records to be created and

maintained. Presumably, Unocal believed that VAR records documenting

detergent blending would be sufficient to ascertain detergent program

compliance. Western Independent Refiners Association made a similar

argument that the CARB requirement of monthly compilation of suppliers

and purchasers should be an adequate, less burdensome substitute for

maintaining product transfer documents.

EPA disagrees with these comments. First, EPA has authority to

require that regulated parties provide product transfer documents when

they transfer detergent, gasoline, or detergent- additized gasoline to

another party. Section 211(1) requires EPA to establish specifications

for detergent additives. To ensure that detergents meet the

specifications promulgated today, it is necessary to require transfer

documents that properly identify the product to be provided with each

transfer of the product.

In addition, section 211(c)(1) allows EPA to control the sale of

any fuel or fuel additive if the Administrator determines that

emissions from such fuel or fuel additive cause or contribute to air

pollution that may reasonably be anticipated to harm the public health

or welfare. As stated below in Section IV.B.4.d., this provision allows

EPA to require that gasoline be additized to reduce harmful emissions.

To ensure that gasoline is properly additized, it is necessary for EPA

to require all parties to provide transfer documents that identify the

product whenever the product is transferred to another party. Such

documents are necessary to provide important information to receiving

parties about blending restrictions. Further, transfer documents can

establish the existence of violations that occurred prior to the

detergent blending process, such as improper labelling of gasoline or

detergent. An analysis of VAR records would not indicate such

violations. Product transfer documents are an essential part of the

primary records which can be used to verify the validity of the VAR

records. EPA's experience conducting lead phase down audits confirms

the necessity of assuring the retention of the primary records which

are the basis for figures contained in reconciliation records.

Product transfer documents are also necessary to provide important

information to receiving parties about blending restrictions.

Furthermore, transfer documents can establish the existence of

violations that occurred prior to the detergent blending process, such

as improper labeling of leaded product. An analysis of the later VAR

records would not detect such violations.

Finally, EPA does not expect the transfer document requirement of

this rule to be unduly burdensome to industry. The reformulated

gasoline rule already requires these documents, and transfer documents

are already routinely transferred by industry in many product

transactions. Typically, the added burden of this requirement will only

involve some additional data requirements on already existing

documents. Thus, this rule contains requirements for both product

transfer documents and VAR records.

Western Independent Refiners Association raised another concern

about product transfer documents. The Western Refiners advised the

Agency that fuels and fuel additives sent through pipelines are not

always accompanied by documentation. These products are often fungible

and they are not transported in discrete packages. Western Refiners

argued that requiring the transfer of a product transfer document at

the same time as the physical transfer of such product would be

burdensome to those parties not presently simultaneously transferring

both the product and the document.

EPA agrees that some parties in the gasoline distribution system

may not presently transfer documentation at the same time as they

physically transfer the product to another party. The Agency's position

is that the information required by this rule to be supplied on the

product transfer document is important to proper additization. It thus

must be supplied to the receiving party in such manner, and within such

time, as to give adequate notice of the relevant information. The

Agency therefore believes that contemporaneous transfer may not always

be necessary, although document transfer at or near the same time as

the transfer of the product is expected.

It is important to clarify that the detergent program only requires

the transfer of a product transfer document when custody or title to

product is transferred from one party to another party. Such a document

is not required to be created when product is merely being transferred,

or even commingled, within one party's own organization.

As a further clarification, this final rule does not require

transfer documents to physically accompany the product they cover at

all times, as was a concern of one commenter. Parties who receive

gasoline, detergent, or detergent-additized post-refinery components

from other parties and who have received the transfer documents for

such products, will be expected to produce, for EPA inspection, product

transfer documents for any such product in their possession. The

transfer documents need not, however, be attached to or stored in the

same physical location as the product. Receiving parties must be

prepared to account for product as it passes within their

organizational structures, however, in order to establish that they are

accurately producing the applicable transfer documents when requested.

The product transfer document requirements promulgated in this rule

are much simpler than those proposed in the NPRM, since this rule does

not contain certification restrictions. For example, gasoline transfer

documents in the interim period need not include fuel-specific or PADD-

specific information. Furthermore, product transfer documents for

additized gasoline or post-refinery component are not required to

identify the specific detergent used to additize the product. This

requirement was deleted in response to an industry lead time concern

about being able to implement this requirement in the product document

software in time for the January 1, l995 detergent rule implementation

date.

Several parties commented about the required contents of product

transfer documents. Koch Refining Company was concerned about the need

to identify on a product transfer document each component base gasoline

when several base gasolines have been commingled. EPA agrees that such

multiple identification would be burdensome and unnecessary. In the

interim program, only the type of regulated product, i.e., base

gasoline, detergent-additized gasoline, detergent, or detergent-

additized post-refinery component, will be required to be listed. Thus,

if product contains commingled base gasolines, the transfer document

would only need to identify the product as base gasoline. However, if

different types of covered product, such as base gasoline and

detergent-additized ethanol, are added together, then the transfer

document for the combined product must identify each of the combined

components. It is necessary in the interim program rule promulgated

today for the regulated parties and the Agency to know if unadditized

product has been added to additized product.

The Chemical Manufacturers Association (CMA) urged EPA to clarify

the proposed requirement to list ``identity of product'' on the

transfer document. With this requirement, EPA intended that the generic

type of transferred product regulated under the detergent rule must be

specified, i.e., base gasoline, detergent-additized gasoline,

detergent, etc. See Sec. 80.158(a)(5).

CMA further urged EPA to delete the requirement that time of

transfer be listed on the transfer document. In the interest of

streamlining transfer document contents, the Agency agrees to this

request, especially in light of the fact that the reformulated/

conventional gasoline program has also deleted this requirement. Date

of transfer, however, is still required to be listed on each product

transfer document.

Product transfer documents for leaded gasoline must identify the

product as containing lead or phosphorus. This requirement is necessary

because detergent registered for use only with leaded gasoline cannot

be used with unleaded gasoline, as described earlier in this preamble.

Such detergents can only be blended into gasolines whose transfer

documents identify them as leaded.

Finally, API requested that EPA allow the use of approved product

codes on transfer documents, as a means of compactly presenting the

information required by the regulation. The intent is to streamline the

space requirements for these documents. EPA appreciates industry's

concern about lack of space on commercial documents and will consider

special requests by regulated parties to use product codes on transfer

documents. To be considered, such requests must demonstrate that all

required information items will be included and that the information

can be easily accessed and decoded by EPA.

4. Liability Issues

a. Presumptive Liability. The detergent rule's presumptive

liability scheme is modeled after, and substantially similar to, the

liability scheme already existing in previously-established EPA fuels

programs, such as lead contamination, volatility, and diesel

desulfurization, and in the reformulated/conventional gasoline program

which is soon to be implemented. The rationale for the imposition of a

presumptive liability framework is the same for the detergent rule as

for the other rules. Typically, many parties handle and control

gasoline, detergent, and detergent-additized post-refinery component.

Much of the product is also fungible. It will, therefore, often be

difficult for EPA to determine which party has caused a detergent

program violation.

EPA must have the ability to hold presumptively liable all parties

in the gasoline and detergent distribution networks that are involved

in a particular violation, in order to effectively enforce the rule

when multiple parties may have caused the violation. EPA's previous

experience indicates that this type of enforcement scheme is highly

effective. The comprehensive threat of liability is an incentive to all

parties to comply with the regulation, and once a violation is found,

to cooperate in determining which party actually caused the violation.

Several parties have commented that the detergent program should

not be based on a presumptive liability scheme since this program is

different than the other fuels programs which have this type of scheme.

According to these commenters, detergent is typically blended into

gasoline downstream, prior to transfer of the gasoline to the retail

outlet. These commenters argue that such downstream additization means

that upstream parties, contrary to the situation in other fuels

programs, cannot cause detergent program violations. Therefore, they

assert, upstream parties should not be held presumptively liable for

detergent program violations, and liability should only be imposed if

EPA can establish actual responsibility.

EPA agrees with the commenters that gasoline is typically additized

at a terminal prior to its transfer to the retail outlet. EPA

disagrees, however, with the further assertion that detergent program

violations cannot be caused by upstream parties. Upstream parties may

cause gasoline non-conformity violations in a variety of ways. For

example, they may fail to indicate on a product transfer document that

the subject gasoline is leaded, and they may fail to provide accurate

information about blending restrictions to detergent blending parties.

Upstream parties may also cause gasoline, detergent, or detergent-

additized post-refinery component non-conformity violations by

improperly manufacturing detergent or commingling it.

Upstream parties may thus cause detergent program violations in a

multitude of ways and circumstances, and all the parties in the

gasoline and detergent distribution system have the potential to cause

such violations. Given the multitude of potential causes of detergent

program violations, and given the fact that it is the regulated parties

themselves who have the most knowledge of, and ability to know what

happens in their distribution system, EPA believes that the imposition

of a presumptive liability scheme is as essential in the detergent

program as it is in the other EPA fuels programs. The interim program

rule promulgated today, therefore, continues the NPRM's presumptive

liability scheme.

In the case of VAR violations, however, upstream parties are

relieved of presumptive liability under today's rule, because detergent

blenders will typically be solely responsible for the accuracy of their

own detergent blending and VAR calculations. This issue may be

revisited, however, when the certification program final rule is

issued, since other parties could cause VAR violations in specific

circumstances. These circumstances include the failure of upstream

parties to provide adequate blending instructions, and the

participation and collusion of other parties in intentional mis-

additization by a detergent blender.

(1) Detergent Manufacturers and Detergent Distributors. CMA

commented that, even if EPA has the authority to regulate detergent

manufacturers, they should not be subject to presumptive liability for

violations that are discovered downstream, because they do not retain

sufficient control over the detergent to cause such violations once it

leaves their facility.

EPA does not agree with CMA's argument. The presumptive liability

scheme in today's rule, as is true with similar schemes found in other

EPA fuels programs, is not dependent upon the control upstream parties

may have over downstream parties. Control over the activities of

another is the basis for vicarious liability. Detergent manufacturers

will not be subject to vicarious liability under today's rule.

On the other hand, the basis of presumptive liability in the EPA

fuels programs, including today's rule, is that a multitude of parties

have the ability to cause a fuels program violation, given the fungible

nature of gasoline and the extensive number of parties typically

involved in its distribution. Given the difficulty in establishing

which party actually caused a violation under these circumstances,

presumptive liability needs to be imposed on all parties who could

cause the violation. Detergent manufacturers can cause detergent

program violations discovered downstream in a number of ways. For

example, they may improperly manufacture the detergent. In addition,

they may fail to properly identify the detergent on product transfer

documents, or to provide accurate blending instructions. Therefore, it

is appropriate to include detergent manufacturers in the presumptive

liability scheme of today's rule.

Further, detergent manufacturers will not be required to

demonstrate, as an independent element of an affirmative defense to

liability for a detergent rule violation, that they did not cause the

violation. EPA believes that the demonstration that: (1) The

manufacturer provided proper product transfer documents; (2) testing

when the product left the manufacturer's control indicated compliance

with registration specifications; and (3) the manufacturer provided

accurate written blending instructions about minimum concentration

requirements and, where relevant, leaded gasoline use restrictions, is

sufficient in most situations to effectively establish that the

manufacturer did not cause the violation.

The Agency, however, needs to acknowledge and provide for the fact

that unusual situations will exist in which a detergent manufacturer

could cause a violation even though it has established all the required

elements of an affirmative defense to liability for that violation. For

example, situations could arise in which there was complicity on the

part of the manufacturer in intentional downstream mis-additizations,

or in which the manufacturer provided inaccurate oral instructions.

Therefore, under today's rule, manufacturers will be liable for

violations even when the above affirmative defense documentation

elements are satisfied, if the Agency can establish that the detergent

manufacturer actually caused the violation. This provision is necessary

to ensure that a manufacturer who actually causes a violation does not

escape liability for that violation, which recognizing that most

manufacturers who meet the requirements of the affirmative defense

stated above will not have caused downstream violations. EPA does not

believe that any regulated party who actually causes a violation should

ever escape the imposition of liability for that violation.

In the NPRM, EPA proposed that all parties in the detergent

distribution system, including distributors of detergent, be subject to

presumptive liability for non-conformity violations affecting

detergent, detergent-additized gasoline, and detergent-additized post-

refinery component. EPA received no comments disputing the imposition

of such liability on detergent distributors. Recognizing that detergent

distributors may cause nonconformity violations in a number of ways,

EPA has retained the proposed detergent distributor liability scheme in

the final rule. Examples of such violations include commingling of

mislabeled detergent and transfer of inaccurate blending instructions.

(2) Detergent and Gasoline Carriers. The Truck Carriers correctly

point out that the proposed carrier liability for violations discovered

downstream is different than, and inconsistent with, carrier liability

under the volatility and reformulated/conventional gasoline rules.

Under those programs, carriers are only held liable for violations

discovered downstream when EPA can prove that they caused the

violation. In the proposed detergent program, however, carriers were to

be presumed liable for downstream violations.

EPA agrees that this inconsistency is inappropriate, since

carriers' legal relationship with their products is the same in the

detergent situation as it is in other fuels programs. Therefore,

carrier liability for downstream violations is changed in this final

rule to be consistent with the other programs. Gasoline carrier

liability under the volatility program, which is the model for carrier

liability in today's rule, was upheld in the National Tank Truck

Carriers case, supra.

b. Liability for Failure to Comply with VAR Requirements.

Commenters expressed concern regarding who EPA would hold respon

This text is long and has been trimmed here. Open the source document for the complete record.