Rule: Air Programs: Fuel and Fuel Additives&#8212 Highway Diesel and Nonroad Diesel Regulations Technical Amendments

Monday,
May 1, 2006
Part III
Environmental
Protection Agency
40 CFR Part 80
Technical Amendments to the Highway
and Nonroad Diesel Regulations; Final
Rule and Proposed Rule
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25706 Federal Register / Vol. 71, No. 83 / Monday, May 1, 2006 / Rules and Regulations
ENVIRONMENTAL PROTECTION • http://www.regulations.gov: Follow able to consider your comment.

AGENCY the on-line instructions for submitting Electronic files should avoid the use of
comments. special characters, any form of
40 CFR Part 80 • E-mail: a-and-r-Docket@epa.gov. encryption, and be free of any defects or
[EPA–HQ–OAR–2006–0224; FRL–8161–9] • Fax: (202) 566–1741. viruses. For additional instructions on
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RIN 2060–AN78 Environmental Protection Agency, of the SUPPLEMENTARY INFORMATION
Mailcode: 6102T, 1200 Pennsylvania section of this document.
Technical Amendments to the Highway Ave., NW., Washington, DC 20460.
and Nonroad Diesel Regulations Docket: All documents in the docket
• Hand Delivery: EPA/DC, EPA West, are listed in the http://
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ACTION: Direct final rule. are only accepted during the Docket’s not publicly available, e.g., CBI or other
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SUMMARY: EPA is taking direct final arrangements should be made for restricted by statute. Certain other
action to correct, amend, and revise deliveries of boxed information. material, such as copyrighted material,
certain provisions of the Highway Diesel Instructions: Direct your comments to will be publicly available only in hard
Rule, and the Nonroad Diesel Rule. This Docket ID No. EPA-HQ-OAR–2006– copy. Publicly available docket
action corrects additional errors and 0224. EPA’s policy is that all comments materials are available either
omissions from the previous rules, and will be included in the public docket electronically in http://
it makes minor changes to the without change and may be made
regulations to assist entities with www.regulations.gov or in hard copy at
available online at http:// the Air Docket, EPA/DC, EPA West,
regulatory compliance. This action also www.regulations.gov, including any
makes technical amendments that Room B102, 1301 Constitution Ave.,
personal information provided, unless NW., Washington, DC. The Public
resulted from discussions with various the comment includes information
diesel stakeholders. These technical Reading Room is open from 8:30 a.m. to
claimed to be Confidential Business 4:30 p.m., Monday through Friday,
amendments will: provide a temporary Information (CBI) or other information
increase in the sulfur testing tolerance, excluding holidays. The Public Reading
whose disclosure is restricted by statute. Room is open from 8:30 a.m. to 4:30
revise the designate and track Do not submit information that you
provisions to account for non-petroleum p.m., Monday through Friday, excluding
consider to be CBI or otherwise holidays. The telephone number for the
diesel fuels (i.e., biodiesel) and fuel that protected through http://
meets the California Air Resources Public Reading Room is (202) 566–1744,
www.regulations.gov or e-mail. The and the telephone number for the
Board’s diesel fuel standards, and http://www.regulations.gov Web site is
amend the alternative defense telephone number for the Air Docket is
an ‘‘anonymous access’’ system, which (202) 566–1742.
provisions to account for conductivity means EPA will not know your identity
additives and red dye. This action is or contact information unless you FOR FURTHER INFORMATION CONTACT: Tia
intended to help facilitate compliance provide it in the body of your comment. Sutton, U.S. EPA, National Vehicle and
with the diesel fuel regulations and If you send an e-mail comment directly Fuels Emission Laboratory, Assessment
ensure a smooth transition to ultra low to EPA without going through http:// and Standards Division, 2000
sulfur diesel fuel. www.regulations.gov your e-mail Traverwood Dr., Ann Arbor MI 48105;
DATES: This direct final rule is effective address will be automatically captured telephone (734) 214–4018, fax (734)
on June 30, 2006 without further notice, and included as part of the comment 214–4816, e-mail sutton.tia@epa.gov.
unless we receive adverse comments by that is placed in the public docket and SUPPLEMENTARY INFORMATION:
May 31, 2006. If adverse comments are made available on the Internet. If you
received, EPA will publish a timely submit an electronic comment, EPA I. General Information
withdrawal in the Federal Register recommends that you include your A. Does This Action Apply to Me?
informing the public that this rule will name and other contact information in
not take effect. the body of your comment and with any This action will affect companies and
ADDRESSES: Submit your comments, disk or CD-ROM you submit. If EPA persons that produce, import, distribute,
identified by Docket ID No. EPA–HQ– cannot read your comment due to or sell highway and/or nonroad diesel
OAR–2006–0224, by one of the technical difficulties and cannot contact fuel. Affected Categories and entities
following methods: you for clarification, EPA may not be include the following:
NAICS
Category Examples of potentially affected entities
code a
Industry ...................................................................................................... 324110 Petroleum refiners.

Industry ...................................................................................................... 422710 Diesel fuel marketers and distributors.
Industry ...................................................................................................... 484220 Diesel fuel carriers.
a North American Industry Classification System (NAICS).
This list is not intended to be examine the regulations. You may direct B. How Can I Get Copies of This
exhaustive, but rather provides a guide questions regarding the applicability of Document?
regarding entities likely to be affected by this action as noted in FOR FURTHER

this action. To determine whether INFORMATION CONTACT. 1. Docket. EPA has established an
particular activities may be affected by official public docket for this action
this action, you should carefully under Air Docket No. EPA–HQ–OAR–
2006–0224. The official public docket
Federal Register / Vol. 71, No. 83 / Monday, May 1, 2006 / Rules and Regulations 25707
consists of the documents specifically final rule based on the proposed rule. at http://www.epa.gov/edocket and
referenced in this action, any public We will not institute a second comment follow the online instructions for
comments received, and other period on this action. Any parties submitting comments. Once in the
information related to this action. interested in commenting must do so at system, select ‘‘search,’’ and then key in
Although a part of the official docket, this time. Any distinct amendment, Docket ID No. EPA–HQ–OAR–2006–
the public docket does not include paragraph, or section of this rulemaking 0224. The system is an ‘‘anonymous
Confidential Business Information (CBI) for which we do not receive adverse access’’ system, which means EPA will
or other information restricted from comment will become effective as not know your identity, e-mail address,
disclosure by statute. The official public indicated in the DATES section above, or other contact information unless you
docket is the collection of materials that notwithstanding any adverse comment provide it in the body of your comment.
is available for public viewing at the Air on any other distinct amendment, ii. Disk or CD ROM. You may submit
Docket in the EPA Docket Center, (EPA/ paragraph, or section of this rule. comments on a disk or CD ROM that
DC) EPA West, Room B102, 1301 you mail to the mailing address
D. How and to Whom Do I Submit identified in ADDRESSES above. These
Constitution Ave., NW, Washington,
Comments? electronic submissions will be accepted
DC. The EPA Docket Center Public
Reading Room is open from 8:30 a.m. to You may submit comments on this in WordPerfect or ASCII file format.
4:30 p.m., Monday through Friday, direct final rule as described in this Avoid the use of special characters and
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number for the Public Reading Room is also publishing a notice of proposed 2. By Mail. Send two copies of your
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2. Electronic Access. This direct final final rule. Your comments on this direct Ave., NW., Washington, DC 20460,
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incurred for internet connectivity. The electronically, by mail, by facsimile, or Deliver your comments to: EPA Docket
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EPA-AIR (either select desired date or EPA is not required to consider these No. EPA–HQ–OAR–2006–0224.
use Search features). late comments. II. Summary of Rule
b. http://www.epa.gov/otaq (look in 1. Electronically. If you submit an
What’s New or under the specific electronic comment as prescribed The Highway Diesel rule, published
rulemaking topic). below, EPA recommends that you on January 18, 2001 (66 FR 5002), is a
Please note that due to differences include your name, mailing address, comprehensive national program that
between the software used to develop and an e-mail address or other contact will greatly reduce emissions from
the documents and the software into information in the body of your diesel engines by integrating engine and
which the document may be comment. Also include this contact fuel controls as a system to gain the
downloaded, format changes may occur. information on the outside of any disk greatest air quality benefits. The
or CD ROM and in any other Nonroad Diesel Rule was subsequently
C. Why Is EPA Proposing a Direct Final accompanying materials to ensure that published on June 29, 2004 (69 FR
Rule? you can be identified as the submitter of 38958). The Nonroad Diesel Rule took a
EPA is publishing this rule without the comment. It is EPA’s policy that we similar approach, covering nonroad
prior proposal because we view this will not edit your comment, and any diesel equipment and fuel to further the
action as noncontroversial and identifying or contact information goal of decreasing harmful emissions. In
anticipate no adverse comment. provided will allow EPA to contact you 2005, we published two additional
However, in the ‘‘Proposed Rules’’ if we cannot read your comment due to direct final rulemakings (70 FR 40889
section of this Federal Register technical difficulties or need further was published on July 15, 2005 and 70
publication, we are publishing a information on the substance of your FR 70498 was published on November
separate document that will serve as the comment. If EPA cannot contact you in 22, 2005) to make technical
proposal for the provisions in this direct these circumstances, we may not be able amendments to those rules. We have
final rule if adverse comments are filed. to consider your comment. Contact chosen to publish a third action to
If EPA receives adverse comment on one information provided in the body of the correct additional errors and omissions
or more distinct amendment, paragraph, comment will be included as part of the from the previous rules, and to make
or section of this rulemaking, or receives comment placed in the official public minor changes to the regulations to
a request for a hearing within the time docket and made available in EPA’s assist entities in complying with our
frame described above, we will publish electronic public docket. diesel fuel rules. In addition,
a timely withdrawal in the Federal i. EPA dockets. Your use of EPA’s discussions with stakeholders
Register indicating which provisions are electronic public docket to submit throughout the diesel fuel industry
being withdrawn due to adverse comments to EPA electronically is identified a need for additional changes
comment. We will address all public EPA’s preferred method for receiving to the regulations such as: (1) Providing
comments received in a subsequent comments. Go directly to EPA Dockets a temporary increase in the sulfur
testing tolerance; (2) revising the time, its temporary nature assures that Standard Reference Materials (SRMs)
designate and track provisions to no one will use it to relax their provided by EPA. The test methods that
account for non-petroleum diesel fuels production targets. were used in the round robin testing
(i.e., biodiesel) and fuel that meets the With the Nonroad Diesel rule (69 FR program were ASTM D 2622, ASTM D
California Air Resources Board’s diesel 38958, June 29, 2004), EPA adopted a 3120, ASTM D 5453, ASTM D 7039, and
fuel standards; and, (3) amending the performance-based test method a non-voluntary consensus standards
alternative defense provisions to approach. For 15 ppm sulfur Nonroad, body (VCSB) Energy Dispersive X-ray
account for conductivity additives and Locomotive, and Marine (NRLM) and Fluorescence method. There were 129
red dye. This action will make all of Motor Vehicle (MV) diesel fuel, under laboratories that participated using 149
these changes and additions to further the performance-based approach, any instruments.
ensure compliance with EPA’s diesel test method could be approved for use Typically, laboratory calibrations for
fuel regulations. in a specific laboratory by meeting measurement of ULSD fuel are done by
certain precision and accuracy criteria either using calibration standards that
III. Final Rulemaking Changes to Sulfur as specified in § 80.584. Qualification or
Test Tolerance are prepared in the laboratory by
approval is maintained as long as that preparing a gravimetric stock solution
This action adopts a temporary laboratory follows the appropriate and then performing serial dilutions or
change to the adjustment factor quality control procedures as specified by purchasing calibration standards
associated with the testing tolerance for in § 80.585(e). from a variety of calibration standard
measurement of diesel fuel sulfur for We included a two ppm downstream suppliers. This provides for a plethora
ULSD. Section 80.580(d) specifies that adjustment to account for the of calibration standards and can bias
an adjustment factor of negative two anticipated reproducibility, or lab-to-lab lab-to-lab variability. During our round
ppm shall be applied to the test results, variability, of the test methods that will robin test program, we wanted to
to account for test variability for testing be used to measure the sulfur content of account for this variability, so in
of motor vehicle diesel fuel or NRLM ULSD. This would allow fuel that addition to having the laboratories
diesel fuel identified as subject to the 15 actually met the 15 ppm standard not to measure the blind fuel samples using
ppm sulfur standard of § 80.510(b) or be inappropriately considered their own in-house calibration curve, we
§ 80.520(a)(1). The temporary change is noncompliant by EPA. Parties could not asked them to measure the blind fuel
to allow an adjustment factor of negative measure above 15 ppm without taking samples using a calibration curve
three ppm for the sulfur tolerance for a on risk that due to test reproducibility
generated from four recently available
period of two years. EPA might consider the fuel to be
The approach being considered leaves NIST SRMs that were provided by EPA
noncompliant.
intact the 2 ppm sulfur adjustment Subsequent to the Nonroad Diesel for the test program. The purpose here
factor for addressing lab-to-lab test rule, concerns continued to be was to determine the contribution of
variability long term; reflecting the very expressed based on testing by the calibration curve bias to reproducibility,
positive results of our round robin American Society of Testing and or lab-to-lab variability, which can be
testing program. It also makes no change Materials (ASTM) that actual determined when all of the labs are
to the 15 ppm fuel sulfur cap for in-use reproducibility might be greater than the using identical, highly accurate,
diesel fuel starting June 1, 2006 at the 2 ppm downstream adjustment. The calibration standards. These SRMs are
refinery, nor the fuel sulfur cap at the concern was that refiners might have to available to the general public for
retail outlet. However, it would allow an reduce the sulfur level of their diesel purchase at a reasonable price and there
additional 1 ppm (3 ppm total) testing fuel production to account for test is a large supply. The results of the test
tolerance for the first 2 years of the reproducibility greater than 2 ppm. program showed that for the most
program; reflecting the results of our While acknowledging the ASTM test widely used method, D 5453 and the
round robin testing program which program results, we also highlighted best performer, D 7039, calibration
indicated that not everyone was yet several shortcomings of the ASTM curve bias accounted for a 0.75 ppm
capable of meeting the 2 ppm program for the purpose of estimating increase in lab-to-lab variability on
requirement. This temporary change to what reproducibility might be once the average when the fuel sulfur content is
the adjustment factor would further ULSD program began. Consequently, we at or near 15 ppm.
help to facilitate the transition to ULSD committed to conduct a round-robin test The results led us to the conclusion
by eliminating concerns associated with program with industry and to adjust the that the 2 ppm adjustment factor is
the impact of test method variability on downstream test tolerance if necessary indeed appropriate. However the results
the sulfur level at the refinery gate based on the result. This rulemaking also indicated that an additional 1 ppm
during the initial implementation of the follows up on that commitment. on a temporary basis could be
ULSD program. This ensures that fuel The round robin testing program appropriate. For the newest test
that is compliant with the 15 ppm sulfur required participating laboratories to methods (ASTM D 5453 and ASTM D
requirement is not inappropriately first qualify their measurement methods 7039) when laboratories used NIST
deemed to be noncompliant simply by meeting the accuracy and precision standards coupled with appropriate test
because of the variability in the test. requirements of § 80.584 for each procedures, reproducibility was less
This specific change ensures that individual test method that it wanted to than 2 ppm for 15 ppm sulfur in diesel
laboratories have the time necessary to use on a lab-specific basis. The round fuel. The conclusions that we drew from
obtain new instrumentation, tighten robin testing program included ten fuel the round robin testing program were
their internal quality assurance/quality samples that were provided to the that:
control (QA/QC) procedures, and train laboratories; five in July 2005 and five • Older methods struggled with
their staff on these new instruments and in August 2005. The laboratories were meeting the reproducibility
procedures. It would also give them required to use two different calibration requirement.
time to establish a track record on curves when measuring the fuel sulfur • Newer test methods are fully
which they can base confidence in both content, their in-house curve and a capable.
their measurements and those of their curve generated from National Institute • Qualification of the test laboratory
customers and suppliers. At the same of Standards and Technology (NIST) is important to the ability of the
laboratories to validate their adjustment factor is simply to ensure diesel, nonroad diesel, heating oil) most,
reproducibility. that fuel actually meeting the 15 ppm if not all, B100 will be designated as 15
• With any method, proper QA/QC cap is not rejected by pipelines or ppm diesel fuel by the manufacturer. As
procedures, including periodic use of otherwise treated as noncompliant due a result of the tax incentives made
calibration check standards are to concerns with testing variability. available for biodiesel blenders by the
important. After the two-year period (through Jobs Act of 2004 and extended by the
The results of the round robin testing October 14, 2008) all entities Energy Policy Act (EPAct) of 2005, the
also indicated that some laboratories are responsible for measuring fuel sulfur interest in blending biodiesel in
still having difficulty. EPA believes that levels and ensuring that the sulfur
this is likely the result of using older growing. Biodiesel blenders are eligible
content of the fuel is at or below 15 ppm
test methods, improper staff training, for a tax credit for the volume of
sulfur will have a maximum sulfur
older test equipment, inadequate testing adjustment factor of negative two biodiesel that is blended into
calibration standards, and improper ppm. This should provide all ULSD petroleum-based diesel for fuel use. The
QA/QC. To the extent that laboratories refiners, distributors and marketers Internal Revenue Service (IRS) requires
were qualified prior to the start of the sufficient time to procure new that to receive the tax credit, the
testing and the quality control practices instrumentation if necessary, improve biodiesel blend must contain at least
were continued, there was a greater their QA/QC procedures, and train one tenth of one percent petroleum
likelihood the testing facilities were able personnel to improve their testing to based diesel fuel (referred to as B99.9).2
to meet the testing tolerance less than the 2 ppm allowed. To become eligible for this tax credit,
requirements. We continue to believe upstream parties sometimes
that with newer equipment coupled IV. Amendments to the Designate and manufacture B99.9 for use downstream
with best practices for quality control, Track Requirements Regarding Non-
to produce finished biodiesel blends.
laboratory-to-laboratory reproducibility Petroleum Diesel Fuel
B100 and B99.9 meet the IRS
can meet the 2 ppm compliance margin Biodiesel blenders recently made us
definition of an ‘‘excluded liquid’’ and
and thus lead to greater assurance that aware of several issues with respect to
in-use compliance will not be a how biodiesel is treated within the thus are not subject to federal fuel
challenge. context of the designate and track (D&T) excise taxes.3 At the point where an
The approach that EPA is finalizing provisions under EPA’s diesel program. excluded liquid is blended with a
today provides greater assurance that They stated that 100 percent biodiesel sufficient quantity of petroleum-based
refineries do not need to expend the (B100) and high concentration biodiesel diesel fuel so that the final fuel blend
resources to produce even lower sulfur blends do not necessarily meet the contains at least 4 percent normal
fuel to compensate for uncertainty specifications for either #1D or #2D paraffins, such liquid ceases to be an
associated with the test variability at the diesel fuel, and requested that EPA excluded liquid, and the volume of
start of the program which will not exist amend the regulations to provide previously excluded liquid becomes
after the transition period. By allowing accurate designations for these fuels. subject to federal fuel excise taxes.
a 3 ppm temporary compliance margin, Similar to the existing provisions for Thus, parties downstream of the
laboratories downstream of the refinery #1D 15 ppm diesel fuel, they stated that terminal where fuel taxes are normally
will have greater assurance that their B100 and high concentration biodiesel assessed such as bulk plant operators,
procedures are adequate without fear of blends designated as 15 ppm highway tank truck operators, centrally fueled
compliance challenges. Without the diesel fuel should be exempted from the fleets, and retail operators could take
appropriate adjustment factor to address anti-downgrading requirements. Finally, custody of B100 or B99.9 on which
test variability, refiners expressed they stated that the regulations as highway taxes have not yet been
concern that they would have had to currently written would compel assessed for use in blending into
lower the sulfur level of the diesel fuel numerous biodiesel blenders petroleum-based diesel fuel. Under
they produced unnecessarily to account downstream of the terminal to comply current EPA regulations, all parties that
for greater test uncertainty. They also with the D&T registration and reporting take custody of diesel fuel on which
stated that this would cause them to requirements. They related that this
operate their refineries in a way that taxes have not been assessed would
would represent a substantial need to comply with the designate and
might constrain fuel supply. The unanticipated burden for these parties
temporary nature of the modified track registration and reporting
and questioned whether it was requirements.
adjustment factor focuses on the fact necessary to meet EPA’s regulatory
that EPA continues to believe that goals. B. Amendments Made by This Rule
improvements in reproducibility are
forthcoming. The two year adjustment A. Background To accommodate B100 and high
factor increase allows time for the Biodiesel is manufactured primarily concentration biodiesel blends that do
industry to transition to the improved for blending into petroleum-based diesel not satisfy the specifications for either
test procedures and instrumentation fuel. Biodiesel blends manufactured for #1D or #2D diesel fuel, this rule amends
while minimizing the potential for use interchangeably with 100 percent the regulations to add a designation for
supply disruptions associated with the petroleum-based diesel fuel typically non-petroleum based diesel fuel and
need to downgrade fuel that could have contain up to 20 percent biodiesel high concentration blends of non-
potentially been noncompliant based on (B20).1 Most biodiesel has inherently petroleum diesel fuel. Any diesel fuel
test method variability. This should not very low sulfur content. Consequently, that is composed of at least 80 percent
lead to an increase in fuel sulfur levels it is anticipated that to facilitate non petroleum diesel fuel (such as
above the 15 ppm cap at any point in distribution of a single grade of B100 biodiesel) can be designated as non-
the distribution system as parties would which can be blended into multiple
risk being found in noncompliance by distillate fuel grades (e.g. highway 2 Internal Revenue Bulletin 2005–35, August 29,
EPA should they release fuel with a 2005.
measured sulfur level greater than 15 1 2 percent biodiesel (B2) and 5 percent biodiesel 3 26 CFR 4081–1(b) states the an excluded liquid
ppm. The purpose of the downstream (B5) are common biodiesel blends. contains less than 4 percent normal paraffins.
petroleum (NP) diesel.4 We have action that would cause them to be which taxes have not been assessed
included 80 percent blends in the included is that they handle a tax- pursuant to IRS code (26 CFR part 48)
definition of NP diesel because we are excluded liquid. The purpose of the is an excluded liquid pursuant to IRS
aware that 20 percent petroleum based D&T requirements is to maintain the code 26 CFR 48.4081–1(b), and (2) the
diesel is sometimes blended into B100 integrity of the distillate sulfur entity does not transfer such excluded
during winter to improve its cold requirements for petroleum refiners. liquid to a facility which delivers or
temperature performance. B99.9 and Once highway taxes have been assessed receives other diesel fuel on which taxes
B80 are used for the same purposes as on such fuels and red dye or marker is have not been assessed. The second
B100, either as a finished fuel or for the added (if required 5), typically before the provision is necessary to ensure that all
later manufacture of biodiesel blends for fuel leaves the terminal, there is no volumes reported under the D&T
use as finished fuel. Similar to #1D fuel, potential for inappropriate shifting from provisions can be accounted for when
we agree that it is not appropriate to one pool to another.6 For most, if not EPA audits compliance with these
apply the anti-downgrading all, of the parties that take custody of an requirements. In most cases, this second
requirements for 15 ppm highway diesel excluded liquid such as B100 or B99.9 provision will be moot since the parties
fuel to NP diesel fuel since this would downstream of the terminal, these are for which this exemption is being
interfere with its intended purpose of the only fuels that they handle on which crafted are biodiesel blenders and
NP diesel as a blend component into all highway diesel taxes have yet to be typically do not further distribute B100.
grades of diesel fuel (including 500 ppm assessed. For such parties, EPA can rely Table IV–1, below, contains a
highway diesel fuel). Consequently, this on the presence or absence of red dye summary of the amendments to the D&T
rule amends the regulations to exempt and marker to evaluate whether any provisions made by this action to
fuel designated as NP diesel from the inappropriate shifting has taken place. accomplish the goals outlined above.
anti-downgrading requirements. This rule exempts parties from the These amendments will reduce the
We agree that it is not necessary to D&T registration and reporting compliance burden for a number of
include facilities downstream of the requirements if: (1) The only diesel fuel required parties while maintaining the
terminal in the D&T system if the only that the entity delivers or receives on environmental benefits of the program.
TABLE IV–1.—SUMMARY OF AMENDMENTS TO THE DESIGNATE AND TRACK REQUIREMENTS REGARDING NON-PETROLEUM
DIESEL FUEL
Section Description
80.2 ...................................... Amended the definition of heating oil to reflect that it can contain NP diesel. Added a definition for NP diesel.
80.520 .................................. Amended the standards and dye requirements to reflect that diesel fuel can be designated as NP diesel.
80.590 .................................. Amended the product transfer document requirements to reflect that diesel fuel can be designated as NP diesel.
80.597 .................................. Amended the D&T provisions to exempt a facility from registration if: (1) The only diesel fuel that the entity deliv-
ers or receives on which taxes have not been assessed pursuant to IRS code (26 CFR part 48) is an excluded
liquid pursuant to IRS code 26 CFR 4081–1(b), and (2) The entity does not transfer such excluded liquid to a
facility which delivers or receives other diesel fuel on which taxes have not been assessed.
80.598 .................................. Amended the diesel fuel designation requirements so that diesel fuel can be designated as NP diesel.
80.599 .................................. Amended the manner in which compliance with the anti-downgrading requirement is evaluated to exempt diesel
fuel designated as NP from the requirements.
80.600 .................................. Amended the recordkeeping requirements under the designate and track provisions to: (1) Reflect that diesel fuel
can be designated as NP diesel, and (2) clarify that facilities that are exempt from the registration requirements
under the D&T provisions (per the amendment to § 80.597) do not need to identify the EPA entity or facility
registration number to which fuel composed entirely of an excluded liquid was distributed.
80.601 .................................. Amended the reporting requirements under the D&T provisions to clarify that facilities that are exempted from the
registration requirements (per the amendments to § 80.597) are not subject to these reporting requirements.
V. Amendments to the Designate and diesel meet a 15 ppm sulfur distributed by tank truck back into the
Track Requirements Regarding specification by June 1, 2006, the D&T State of California.
California Diesel provisions to prevent the inappropriate The State of California’s diesel fuel
shifting of higher sulfur diesel fuel into program does not contain the temporary
California refiners and distributors of the California diesel pool are not needed
diesel fuel requested that EPA consider compliance option for highway diesel
for California diesel while it is in the fuel, or the small refiner and credit
exempting diesel fuel that meets the
State of California. It was stated that provisions that exist under the federal
State of California requirements for
California diesel which enters the 49 program. At the time of its introduction,
highway diesel fuel (known as
California Air Resource Board diesel, or states could be incorporated into the California diesel became mandatory for
‘‘California diesel’’) from the designate D&T system so as to maintain the use in both highway vehicles and
and track requirements under EPA’s integrity of the system. It was also nonroad equipment. Beginning January
diesel program while such California requested that the D&T requirements be 2007, the State of California requires
diesel fuel is in the State of California. amended to accommodate cases where that California diesel meeting a 15 ppm
They stated that because the State of California diesel is shipped via pipeline sulfur specification be used in intrastate
California will require that California to a terminal outside of California to be locomotives and marine engines.
4 It is also likely that non-petroleum diesel fuels oil beginning June 1, 2007 and to locomotive and highway program’s temporary compliance option,
other than biodiesel will not satisfy the marine diesel fuel from June 1, 2010–May 31, 2012 or from the heating oil pool into the high sulfur
specifications for #1D or #2D diesel fuel. before the fuel leaves the terminal. NRLM pool while the NRLM program’s small
5 Outside of the Northeast Mid-Atlantic Area, the 6 For example, from the nonroad diesel pool into
refiner and credit provisions remain effective.
marker solvent yellow 124 must be added to heating the 500 ppm highway diesel pool during the
Consequently, we agree that the except for the volume balance the federal sulfur testing requirements.
concerns which led us to implement the requirements for highway diesel fuel. This rule contains various amendments
D&T requirements do not exist with Such pipeline facilities will not need to (listed below in table V–1) to ensure that
respect to California diesel while it is in identify the specific facilities from the integrity of the D&T system is
the State of California. Therefore, this which they received the California maintained.
action amends the D&T regulations so diesel that enters the 49 states. The
Table V–1, below, contains a
that facilities which handle California terminal within the 49 states that
receives California diesel must summary of the regulatory amendments
diesel while it is within the State of
California are not subject to the redesignate the fuel as federal 15 ppm made by this action to implement the
associated registration, volume balance, sulfur highway diesel fuel (ULSD) or approach outlined above. We expect
and reporting requirements. segregate the California diesel fuel it that these amendments will reduce
Under this amendments, a pipeline receives for redistribution back into the compliance burdens for California
that ships California diesel to a terminal State of California. Refiners and refiners and distributors while
outside of California will continue to be importers of diesel fuel in the State of preserving the environmental benefits of
subject to all of the D&T requirements California will continue to be subject to the clean diesel program.
TABLE V–1.—SUMMARY OF AMENDMENTS TO THE DESIGNATE AND TRACK REQUIREMENTS REGARDING DIESEL FUEL THAT
MEETS CALIFORNIA’S STANDARDS
Section Description
80.597(c)(1)(iv) ................................ Added to clarify that facilities that ship California diesel outside of California are required to register under
the designate and track provisions.
80.598(b)(2)(iii), 80.598(b)(3)(iv) ..... Added new designation for California diesel fuel.
80.598(b)(9)(xvi) .............................. Added new section which specifies that California diesel shipped outside of California must either be re-
designated as 15 ppm MVNRLM of segregated for delivery back into California by tank truck.
80.599(b)(2), 80.599(e)(2) .............. Amended definitions of MV15I and #2MV15I to include CA diesel received pursuant to new section
80.617(b)(1).
80.600(b)(1)(i)(E), 80.600(b)(1)(ii)(I) Added to specify that records must be maintained regarding transfers of California diesel fuel out of the
State of California under § 80.617(b).
80.600(n) ......................................... Added to clarify that records do not need to be maintained re the specific facilities to which taxed or dyed
California diesel fuel (or taxed or dyed 15 ppm MVNRLM) is delivered.
80.601(a)(1)(i), 80.601(a)(2)(i) ........ Amended reporting requirements to include fuel designated as California diesel that is distributed outside
of California.
80.616 ............................................. Added exemption provisions for California diesel within the State of California.
80.617 ............................................. Added provisions on how to handle California diesel distributed outside the State of California.
VI. Amendments to the Alternative significant under these circumstances focused on instances where a tank truck
Defense Provisions Regarding the Use and could discourage the injection of that previously contained gasoline is
of Conductivity Additives and Red Dye additives with a sulfur content that subsequently loaded with diesel fuel.7
With a Sulfur Content That Exceeds 15 exceeds 15 ppm as the fuel is delivered Under such a circumstance, a flammable
ppm into the tank truck. This might force mixture of gasoline and air is likely to
more additization to take place exist in the tank truck compartment.8
Conductivity Additives Static electricity is generated during the
upstream at the refiner when possible or
EPA’s diesel program provides for the in the terminal storage tank. transfer of diesel fuel into the tank truck
use of additives with a sulfur content The final Highway and Nonroad compartment, which unless properly
greater than 15 ppm in diesel fuel that Diesel rules projected that managed, can serve as an ignition
is subject to the 15 ppm sulfur standard. manufacturers of additives for use in source for this flammable mixture. The
Under such circumstances, the party diesel fuel subject to the 15 ppm sulfur risk of fuel fires caused by static electric
that blends the additive is responsible standard would reformulate such discharge can be mitigated by
for ensuring that the finished fuel is additives where needed and practicable employing procedural safeguards and by
compliant with the 15 ppm sulfur to have a sulfur content of less than 15 the use of additives that increase the
standard. If a violation of the 15 ppm ppm. During the rulemaking process, we electrical conductivity of the fuel. Such
standard is discovered, EPA will require learned that important safety additives procedural safeguards include: Bonding
that all parties that had custody of the used to increase the electrical and grounding the tank truck to allow
fuel provide affirmative defenses to conductivity of diesel fuel can not a safe pathway for the discharge of static
presumptive liability to demonstrate currently be reformulated to have a electricity, controlling fuel flow rate and
that they did not cause or contribute to sulfur content of less than 15 ppm. splashing to limit the generation of
the violation. For blenders of additives Conductivity (static dissipater) additives static electricity, and allowing sufficient
with a sulfur content greater than 15 are often injected as the fuel is delivered time for the static charge that does
ppm, such affirmative defenses typically into the tank truck although they are accumulate to dissipate prior to
include a post-additization sulfur test sometimes added to the terminal tank. completing the refueling procedure.
on the fuel batch which shows that the They are typically not added at the Conductivity additives decrease the
finished diesel fuel is compliant with refinery because of concerns that the
the 15 ppm sulfur standard. Certain additives might contaminate jet fuel 7 Such sequential loading is referred to as switch
diesel fuel additives are typically loading.

during shipment by pipeline. 8 Because the flash point of diesel fuel is much
injected as the fuel is being delivered Concerns related to fires caused by higher than that of gasoline, it is much less likely
into a tank truck. The cost of post- the discharge of static electricity during for a flammable diesel/air mixture to exist under
additization sulfur testing could be the transfer of diesel fuel are primarily typical ambient conditions.
extent to which a static charge can was requested that to ensure a smooth Manufacturers of red dye recently
accumulate and the time needed for the transition to ULSD, EPA amend the related that their efforts to reformulate
charge that does accumulate to criteria under which the alternative their additive to reduce the sulfur
dissipate. affirmative defense provisions can be content below 15 ppm have not been
To facilitate the use of conductivity used to allow the use of conductivity fully successful and that it is currently
additives, the Nonroad Diesel final rule additives that contribute up to 0.4 ppm unclear how this can be accomplished.
included alternative affirmative defense sulfur to the finished fuel blend. This Our review of the information which
provisions for over 15 ppm sulfur corresponds to the maximum treatment they provided indicates that
conductivity additives that contribute rate recommended by a manufacturer of reformulating red dye to meet a 15 ppm
no more than 0.05 ppm sulfur to the conductivity additives. specification is currently not feasible.
finished fuel blend (§ 80.614). Under We believe that in order to facilitate
the safe operation of tank truck loading Information provided by additive
these alternative affirmative defense manufactures indicates that the use of
provisions, additive blenders use a facilities, it is appropriate to provide as
much flexibility as possible for blenders red dye to meet IRS requirements
sulfur test prior to additization and should result in a contribution to the
volume accounting reconciliation (VAR) of conductivity additives under the
ULSD program. Thus, this rule provides sulfur content of the finished fuel of no
of the amount of additive injected into
that the alternative affirmative defense more than 0.04 ppm. Based on the above
a volume of diesel over a compliance
provisions may be used by blenders of discussion, we believe that it is
period to demonstrate that the sulfur
conductivity additives that contribute appropriate to allow the use of the
contribution from the additive did not
no more than 0.4 ppm to the finished alternative VAR-based affirmative
cause the finished fuel blend to exceed
fuel. We expect that this change will defense provisions by blenders of red
15 ppm sulfur. We limited the use of
allow the alternative defense provisions dye into diesel fuel subject to the 15
these alternative defense provisions to
to be used under the most extreme ppm sulfur standard provided that the
conductivity additives that contribute
circumstances, when treating diesel fuel use of red dye contributes no more than
no more than 0.05 ppm sulfur to the
finished fuel blend for two reasons. batches during wintertime conditions 0.04 ppm to the finished fuel blend.
First, the information available to us at (when static electricity concerns are This rule amends the regulations to
heightened) that have extremely low make this allowance.
the time indicated that the
conductivity and are also relatively
corresponding additive treatment rate Summary of the Amendments
unresponsive to the effects of
would be adequate to meet the
conductivity improver additives. We The amendments made by this action
conductivity needs for all in-use fuels.
continue to believe that in most cases regarding the use of the alternative
Second, we wished to provide an upper
the treatment rate of conductivity defense provisions by blenders of
limit on the potential sulfur
additive that will be needed will be greater than 15 ppm conductivity
contribution from such additives so that
much lower than that provided for additives and red dye are summarized
their sulfur content could not increase.
under these amended alternative
Certain fuel distributors recently in the following table VI–1. For these
affirmative defense provisions.
related that to maintain safe operation alternative defense provisions to apply,
during the transfer of 500 ppm diesel Red Dye it will continue to be necessary for the
fuel they currently employ both The Internal Revenue Service (IRS) blender to have a sulfur test prior to
procedural safeguards and add requires that red dye be added to additization which shows that the sulfur
conductivity additives at a nonroad diesel fuel prior to leaving the contribution from the additive will not
concentration that results in a sulfur terminal to indicate its non-tax status. cause the sulfur content of the finished
contribution to the finished fuel in The D&T provisions under EPA’s diesel fuel to exceed 15 ppm. Thus, these
excess of the 0.05 ppm. They further program only apply up to the point amendments will not have a negative
stated that the limited number of where taxes are assessed as the fuel impact on the environmental benefits of
conductivity tests on batches of early leaves the terminal. After this point, the ULSD program or on the sulfur
production 15 ppm diesel fuel indicates EPA’s diesel program relies on the sensitive diesel engine emissions
that the processes used to remove sulfur presence/absence of red dye to control equipment on which these
also tends to reduce the natural differentiate highway diesel fuel from benefits depend. We intend to revisit
conductivity of the fuel. This could lead nonroad diesel fuel. The success of both the need for these alternative affirmative
to increased concerns regarding the IRS fuel excise tax program and defenses should it become practical in
protecting against fires caused by static EPA’s clean diesel programs is the future to manufacture conductivity
discharge during the loading of dependant on the continued use of red additives and/or red dye with a sulfur
petroleum tank trucks with ULSD. It dye. content of less than 15 ppm.
TABLE VI–1.—SUMMARY OF AMENDMENTS TO THE ALTERNATIVE DEFENSE PROVISIONS FOR CONDUCTIVITY ADDITIVES
AND RED DYE
Section Description
80.591 ............................................. Amended product transfer document requirements in keeping with applicability of alternative defense provi-
sions for red dye.
80.614 ............................................. Amended alternative defense provisions so that they may be used by blenders of red dye that contributes
no more than 0.04 ppm to the finished fuel and conductivity additives that contribute no more than 0.4
ppm to the finished fuel.
VII. Correction of Errors and Omissions typographical errors, and minor on product transfer documents (with
From the Highway and Nonroad Diesel clarification edits. This action also EPA approval), and the clarification that
Regulations and Other Clarifications includes more substantive amendments approved small refiners who have
that we believe will assist regulated elected to use the ‘‘gas-for-diesel’’ small
Following the publication of the entities in compliance with the diesel refiner option (§§ 80.553 and 80.554)
Highway and Nonroad Diesel rules, as sulfur rules. These include: The may designate 15 ppm diesel fuel as
well as the two subsequent rulemakings, allowance for early motor vehicle diesel motor vehicle diesel fuel or nonroad,
we discovered additional errors and credits to be traded across Credit locomotive, and marine diesel fuel.
clarifications that we are addressing in Trading Areas, the assignment of Puerto The table below details the various
this action. Some of these items are Rico and the U.S. Virgin Islands to CTA clarifications and other corrections that
merely grammar corrections, 1, the allowance of shorter statements are being made through this action:
Section Description
Subpart I ......................................... Revised title to reflect the fact that the provisions of this subpart are applicable to motor vehicle, nonroad,
locomotive and marine diesel fuel.
80.502(b) ......................................... Added definition to allow for the aggregation of refineries with truck loading terminals.
80.502(f) .......................................... Added to clarify that Alaska and Hawaii are in PADD V, and to assign the U.S. Virgin Islands and Puerto
Rico to PADD VI.
80.527(c) ......................................... Amended to clarify that the anti-downgrading provisions begin October 15, 2006.
80527(c)(4), 80.527(e)(2) ................ Revised to clarify the anti-downgrading provisions as they apply to retailers and wholesale purchaser-con-
sumers.
80.531(a)(5)(i)–(ii) and (v) ............... Amended to clarify that Puerto Rico and the U.S. Virgin Islands are assigned to CTA 1.
80.531(c)(5) and (d)(2), and 80.532 Amended to allow cross-CTA trading for early motor vehicle diesel fuel credits.
80.533 section heading, The section heading was revised to better describe the purpose and objectives of this provision. Para-
80.533(d)(2) and (e). graphs were also amended to clarify that calculations of NRLM baselines should only be calculated
using #2D distillates, to state that these provisions apply to ‘‘produced or imported’’ fuel, and for consist-
ency with the revisions made to section 80.554(d).
80.535 ............................................. Revised to state a refiner must submit its NRLM early credit generation intent letter at least 30 days prior
to the date that it begins generating early credits.
80.551(f) .......................................... This provision was inadvertently omitted during the printing of a prior rulemaking.
80.553 ............................................. Amended to state that at least 95 percent of the diesel fuel that a small refiner produces must be produced
to meet the 15 ppm sulfur standard.
80.554(d) ......................................... Amended to better reflect the intent of the small refiner ‘‘gas-for-diesel’’ option.
80.570(e), 80.571(f), 80.572(f), Revised to state ‘‘EPA’’ instead of ‘‘the Administrator.’’
80.573(c), and 80.574(d).
80.590(a)(7) .................................... Amended to allow entities to use shorter statements regarding diesel fuel classifications on PTDs (with
EPA approval).
80.590(i) .......................................... Added to cover the situation where some small amount of potentially off-spec ULSD, or ‘‘interface ULSD’’,
may be transferred by a pipeline due to batch sequencing and pipeline batch cutting methods.
80.592(b)(7)–(b)(7)(i) ...................... Amended to state ‘‘compliance period’’ rather than ‘‘calendar year’’.
80.592(f) .......................................... Added to state recordkeeping requirements for the situation where a refinery is aggregated with a truck
loading terminal.
80.593 ............................................. Amended to reflect the fact that this section is applicable to importers as well as refiners.
80.595 ............................................. Revised the section heading to better describe the purpose and objectives of this provision.
80.597(c)(1) and (c)(2) .................... Revised to clarify that only entities delivering or receiving the fuels in 80.597(c)(1)(i)–(iii) must register.
80.598(a)(3)(iv) ............................... Amended to clarify that small refiners who elect to produce NRLM to meet the 15 ppm standard in 2006
may designate 15 ppm fuel as MV or NRLM fuel beginning June 1, 2006 (as stated in § 80.554(d)).
80.598(b)(9)(iv) & (b)(9)(vii)(A) ....... Amended to state ‘‘2006’’ rather than ‘‘2007’’.
80.600 ............................................. Various sections amended to address recordkeeping for the situation where a refinery is aggregated with a
truck loading terminal.
80.601(a)(iv)–(v) .............................. Amended to clarify volume balance requirements.
80.601(b)(4) and 80.601(f) .............. Added to state reporting requirements for the situation where a refinery is aggregated with a truck loading
terminal.
80.602(g) ......................................... Added to address recordkeeping for the situation where a refinery is aggregated with a truck loading ter-
minal.
VIII. Statutory and Executive Order • Have an annual effect on the or loan programs or the rights and
Reviews economy of $100 million or more or obligations of recipients thereof; or,
A. Executive Order 12866: Regulatory
adversely affect in a material way the • Raise novel legal or policy issues
economy, a sector of the economy, arising out of legal mandates, the
Planning and Review
productivity, competition, jobs, the President’s priorities, or the principles
Under Executive Order 12866 (58 FR environment, public health or safety, or set forth in the Executive Order.
51735 (October 4, 1993), the Agency State, local, or tribal governments or It has been determined that this rule
must determine whether the regulatory communities; is not a ‘‘significant regulatory action’’
action is ‘‘significant’’ and therefore • Create a serious inconsistency or under the terms of Executive Order
subject to OMB review and the otherwise interfere with an action taken 12866 and is therefore not subject to
requirements of the Executive Order. or planned by another agency; OMB review. This final rule simply
The Order defines ‘‘significant corrects errors and omissions, provides
regulatory action’’ as one that is likely • Materially alter the budgetary a temporary increase in the sulfur
to result in a rule that may: impact of entitlements, grants, user fees, testing tolerance, revises the designate
and track provisions to account for non- and systems for the purposes of analysis, for proposed and final rules
petroleum diesel fuels (i.e., biodiesel) collecting, validating, and verifying with ‘‘Federal mandates’’ that may
and fuel that meets the California Air information, processing and result in expenditures to State, local,
Resources Board’s diesel fuel standards, maintaining information, and disclosing and tribal governments, in the aggregate,
and amends the alternative defense and providing information; adjust the or to the private sector, of $100 million
provisions to account for conductivity existing ways to comply with any or more in any one year. Before
additives and red dye. There are no new previously applicable instructions and promulgating an EPA rule for which a
costs associated with this rule. requirements; train personnel to be able written statement is needed, section 205
Therefore, this final rule is not subject to respond to a collection of of the UMRA generally requires EPA to
to the requirements of Executive Order information; search data sources; identify and consider a reasonable
12866. A Final Regulatory Support complete and review the collection of number of regulatory alternatives and
Document was prepared in connection information; and transmit or otherwise adopt the least costly, most cost-
with the original regulations for the disclose the information. effective, or least burdensome
Highway Diesel Rule and the Nonroad An agency may not conduct or alternative that achieves the objectives
Diesel Rule as promulgated on January sponsor, and a person is not required to of the rule. The provisions of section
18, 2001 and June 29, 2004, respond to a collection of information 205 do not apply when they are
respectively, and we have no reason to unless it displays a currently valid OMB inconsistent with applicable law.
believe that our analyses in the original control number. The OMB control Moreover, section 205 allows EPA to
rulemakings were inadequate. The numbers for EPA’s regulations in 40 adopt an alternative other than the least
relevant analyses are available in the CFR are listed in 40 CFR part 9. costly, most cost-effective, or least
docket for the January 18, 2001 C. Regulatory Flexibility Analyses burdensome alternative if the
rulemaking (A–99–061) and the June 29, Administrator publishes with the final
2004 rulemaking (OAR–2003–0012 and EPA has determined that it is not
necessary to prepare a regulatory rule an explanation of why that
A–2001–28) and at the following
flexibility analysis in connection with alternative was not adopted.
internet address: http://www.epa.gov/
cleandiesel. The original action was this direct final rule. For purposes of Before EPA establishes any regulatory
submitted to the Office of Management assessing the impacts of this final rule requirements that may significantly or
and Budget for review under Executive on small entities, a small entity is uniquely affect small governments,
Order 12866. defined as: (1) A small business as including tribal governments, it must
defined by the Small Business have developed under section 203 of the
B. Paperwork Reduction Act Administration’s (SBA) size standards at UMRA a small government agency plan.
This action does not impose any new 13 CFR 121.201; (2) a small The plan must provide for notifying
information collection burden, as it governmental jurisdiction that is a potentially affected small governments,
simply corrects errors and omissions, government of a city, county, town, enabling officials of affected small
provides a temporary increase in the school district or special district with a governments to have meaningful and
sulfur testing tolerance, revises the population of less than 50,000; and (3) timely input in the development of EPA
designate and track provisions to a small organization that is any not-for- regulatory proposals with significant
account for non-petroleum diesel fuels profit enterprise which is independently Federal intergovernmental mandates,
(i.e., biodiesel) and fuel that meets the owned and operated and is not and informing, educating, and advising
California Air Resources Board’s diesel dominant in its field. After considering small governments on compliance with
fuel standards, and amends the the economic impacts of today’s final the regulatory requirements.
alternative defense provisions to rule on small entities, EPA has
This rule contains no Federal
account for conductivity additives and concluded that this action will not have
mandates (under the regulatory
red dye. However, the Office of a significant economic impact on a
provisions of Title II of the UMRA) for
Management and Budget (OMB) has substantial number of small entities.
State, local, or tribal governments or the
previously approved the information This final rule will not impose
private sector. The rule imposes no
collection requirements contained in the additional regulatory burden on small
enforceable duties on any of these
existing regulations of the Highway entities. This direct final rule merely
governmental entities. Nothing in the
Diesel Rule (66 FR 5002, January 18, corrects errors and omissions, provides
rule would significantly or uniquely
2001) and the Nonroad Diesel Rule (69 a temporary increase in the sulfur
affect small governments. EPA has
FR 38958, June 29, 2004) under the testing tolerance, revises the designate
provisions of the Paperwork Reduction determined that this rule contains no
and track provisions to account for non-
Act, 44 U.S.C. 3501 et seq. and has federal mandates that may result in
petroleum diesel fuels (i.e., biodiesel)
assigned OMB control number 2060– expenditures of more than $100 million
and fuel that meets the California Air
0308 (EPA ICR #1718). A copy of the to the private sector in any single year.
Resources Board’s diesel fuel standards,
OMB approved Information Collection This direct final rule merely corrects
and amends the alternative defense
Request (ICR) may be obtained from errors and omissions, provides a
provisions to account for conductivity
Susan Auby, Collection Strategies temporary increase in the sulfur testing
additives and red dye.
Division; U.S. Environmental Protection tolerance, revises the designate and
Agency (2822T), 1200 Pennsylvania D. Unfunded Mandates Reform Act track provisions to account for non-
Avenue, NW., Washington, DC 20460 or Title II of the Unfunded Mandates petroleum diesel fuels (i.e., biodiesel)
by calling (202) 566–1672. Reform Act of 1995 (UMRA), Public and fuel that meets the California Air
Burden means the total time, effort, or Law 104–4, establishes requirements for Resources Board’s diesel fuel standards,
financial resources expended by persons Federal agencies to assess the effects of and amends the alternative defense
to generate, maintain, retain, or disclose their regulatory actions on State, local, provisions to account for conductivity
or provide information to or for a and tribal governments and the private additives and red dye.
Federal agency. This includes the time sector. Under section 202 of the UMRA, Thus, this rule is not subject to the
needed to review instructions; develop, EPA generally must prepare a written requirements of sections 202 and 205 of
acquire, install, and utilize technology statement, including a cost-benefit the UMRA.
E. Executive Order 13132: Federalism rule simply corrects errors and G. Executive Order 13045: Children’s
Executive Order 13132, entitled omissions, provides a temporary Health Protection
‘‘Federalism’’ (64 FR 43255, August 10, increase in the sulfur testing tolerance, Executive Order 13045, ‘‘Protection of
1999), requires EPA to develop an revises the designate and track Children from Environmental Health
accountable process to ensure provisions to account for non-petroleum Risks and Safety Risks’’ (62 FR 19885,
‘‘meaningful and timely input by State diesel fuels (i.e., biodiesel) and fuel that April 23, 1997) applies to any rule that
and local officials in the development of meets the California Air Resources (1) is determined to be ‘‘economically
regulatory policies that have federalism Board’s diesel fuel standards, and significant’’ as defined under Executive
implications.’’ ‘‘Policies that have amends the alternative defense Order 12866, and (2) concerns an
federalism implications’’ are defined in provisions to account for conductivity environmental health or safety risk that
the Executive Order to include additives and red dye. Although Section EPA has reason to believe may have a
regulations that have ‘‘substantial direct 6 of Executive Order 13132 did not disproportionate effect on children. If
effects on the States, on the relationship apply to the Highway Diesel Rule (66 FR the regulatory action meets both criteria,
between the national government and 5002) or the Nonroad Diesel Rule (69 FR the Agency must evaluate the
the States, or on the distribution of 38958), EPA did consult with environmental health or safety effects of
power and responsibilities among the representatives of various State and the planned rule on children, and
various levels of government.’’ local governments in developing these explain why the planned regulation is
Under Section 6 of Executive Order rules. For this direct final action, EPA preferable to other potentially effective
13132, EPA may not issue a regulation consulted with representatives of the and reasonably feasible alternatives
that has federalism implications, California Air Resources Board and the considered by the Agency.
imposes substantial direct compliance Western States Petroleum Association This rule is not subject to the
costs, and is not required by statute. (WSPA) for the amendments made Executive Order because it is not
However, if the Federal government which will affect refiners and economically significant, and does not
provides the funds necessary to pay the distributors in California. involve decisions on environmental
direct compliance costs incurred by health or safety risks that may
State and local governments, or EPA F. Executive Order 13175: Consultation disproportionately affect children.
consults with State and local officials and Coordination With Indian Tribal
early in the process of developing the Governments H. Executive Order 13211: Actions That
regulation, these restrictions do not Significantly Affect Energy Supply,
Executive Order 13175, entitled Distribution, or Use
apply. EPA also may not issue a
‘‘Consultation and Coordination with
regulation that has federalism This rule is not a ‘‘significant energy
Indian Tribal Governments’’ (65 FR
implications and that preempts State action’’ as defined in Executive Order
67249, November 9, 2000), requires EPA 13211, ‘‘Actions Concerning Regulations
law, unless the Agency consults with
State and local officials early in the to develop an accountable process to That Significantly Affect Energy Supply,
process of developing the regulation. ensure ‘‘meaningful and timely input by Distribution, or Use’’ (66 FR 28355, May
Section 4 of the Executive Order tribal officials in the development of 22, 2001) because it is not likely to have
contains additional requirements for regulatory policies that have tribal a significant adverse effect on the
rules that preempt State or local law, implications.’’ This direct final rule supply, distribution or use of energy.
even if those rules do not have does not have tribal implications as This direct final rule simply corrects
federalism implications (i.e., the rules specified in Executive Order 13175. errors and omissions, provides a
will not have substantial direct effects This rule does not have tribal temporary increase in the sulfur testing
on the States, on the relationship implications. It will not have substantial tolerance, revises the designate and
between the national government and direct effects on tribal governments, on track provisions to account for non-
the States, or on the distribution of the relationship between the Federal petroleum diesel fuels (i.e., biodiesel)
power and responsibilities among the government and Indian tribes, or on the and fuel that meets the California Air
various levels of government). Those distribution of power and Resources Board’s diesel fuel standards,
requirements include providing all responsibilities between the Federal and amends the alternative defense
affected State and local officials notice government and Indian tribes, as provisions to account for conductivity
and an opportunity for appropriate specified in Executive Order 13175. additives and red dye.
participation in the development of the This rule does not uniquely affect the
communities of Indian Tribal I. National Technology Transfer and
regulation. If the preemption is not
Governments. Further, no circumstances Advancement Act
based on express or implied statutory
authority, EPA also must consult, to the specific to such communities exist that Section 12(d) of the National
extent practicable, with appropriate would cause an impact on these Technology Transfer and Advancement
State and local officials regarding the communities beyond those discussed in Act of 1995 (‘‘NTTAA’’), Public Law
conflict between State law and the other sections of this rule. This 104–113, section 12(d) (15 U.S.C. 272
Federally protected interests within the direct final rule merely corrects errors note) directs EPA to use voluntary
agency’s area of regulatory and omissions, provides a temporary consensus standards in its regulatory
responsibility. increase in the sulfur testing tolerance, activities unless doing so would be
This rule does not have federalism revises the designate and track inconsistent with applicable law or
implications. It will not have substantial provisions to account for non-petroleum otherwise impractical. Voluntary
direct effects on the States, on the diesel fuels (i.e., biodiesel) and fuel that consensus standards are technical
relationship between the national meets the California Air Resources standards (such as materials
government and the States, or on the Board’s diesel fuel standards, and specifications, test methods, sampling
distribution of power and amends the alternative defense procedures, and business practices) that
responsibilities among the various provisions to account for conductivity are developed or adopted by voluntary
levels of government, as specified in additives and red dye. Thus, Executive consensus standards bodies. NTTAA
Executive Order 13132. This direct final Order 13175 does not apply to this rule. directs EPA to provide Congress,
through OMB, explanations when the of Federal Regulations is amended as designated fuel for which the aggregated
Agency decides not to use available and follows: facility is responsible for all applicable
applicable voluntary consensus balance and downgrade requirements
standards. PART 80—REGULATION OF FUELS under §§ 80.527, 80.598, 80.599 and
This direct final rule does not involve AND FUEL ADDITIVES related recordkeeping and reporting
technical standards. This direct final ■ 1. The authority citation for part 80 requirements like any other distributor
rule merely corrects errors and continues to read as follows: downstream from the refiner or
omissions, provides a temporary importer.
Authority: 42 U.S.C. 7414, 7545 and
increase in the sulfur testing tolerance, * * * * *
7601(a).
revises the designate and track (d) * * *
provisions to account for non-petroleum ■ 2. Section 80.2 is amended by revising (1) In the case of aggregated facilities
diesel fuels (i.e., biodiesel) and fuel that paragraph (ccc) and adding paragraph consisting of a refinery and a truck
meets the California Air Resources (sss) to read as follows: loading terminal, a batch may be
Board’s diesel fuel standards, and defined by one of the following
amends the alternative defense § 80.2 Definitions.
methods:
provisions to account for conductivity * * * * * (i) The sum of the deliveries from the
additives and red dye. Thus, we have (ccc) Heating Oil means any #1, #2, or truck loading terminal rack to trucks for
determined that the requirements of the non-petroleum diesel blend that is sold periods not to exceed 1 month;
NTTAA do not apply. for use in furnaces, boilers, stationary (ii) Each individual truck or truck
diesel engines, and similar applications compartment; or
J. Congressional Review Act and which is commonly or (iii) For refineries with ‘‘certification
The Congressional Review Act, 5 commercially known or sold as heating tanks’’ where testing is performed and
U.S.C. 801, et seq., as amended by the oil, fuel oil, and similar trade names, ‘‘rack tanks’’ that feed the truck loading
Small Business Regulatory Enforcement and that is not jet fuel, kerosene, or terminal rack, each transfer from the
Fairness Act of 1996, generally provides MVNRLM diesel fuel. certification tank to the rack tank. If this
that before a rule may take effect, the * * * * * method of determining a batch is
agency promulgating the rule must (sss) Non-petroleum diesel (NP diesel) selected, it must be the sole method
submit a rule report, which includes a means a diesel fuel that contains at least used and must be performed such that
copy of the rule, to Congress and the 80 percent mono-alkyl esters of long no double-counting or undercounting of
Comptroller General of the United chain fatty acids derived from vegetable volumes occurs.
States. We will submit a report oils or animal fats. (2) [Reserved.]
containing this rule and other required ■ 3. Subpart Heading I is revised to read (f) Definition of PADD. For the
information to the U.S. Senate, the U.S. as follows: purposes of this subpart only, the
House of Representatives, and the following definitions of PADDs apply:
Comptroller General of the United Subpart I—Motor Vehicle, Nonroad, (1) The following States are included
States before publication of the rule in Locomotive, and Marine Diesel Fuel in PADD I:
the Federal Register. A major rule Connecticut
cannot take effect until 60 days after it ■ 4. Section 80.502 is amended by
Delaware
is published in the Federal Register. adding new paragraphs (b)(1)(iii), (d)(1),
District of Columbia
This action is not a ‘‘major rule’’ as (d)(2) and (f), to read as follows:
Florida
defined by 5 U.S.C. 804(2) and will § 80.502 What definitions apply for Georgia
become effective June 30, 2006. purposes of this subpart? Maine
* * * * * Maryland
IX. Statutory Provisions and Legal
(b) * * * Massachusetts
Requirements
(1) * * * New Hampshire
The statutory authority for this action (iii) Situations where a refinery is New Jersey
comes from sections 211(c) and (i) of the aggregated with a truck loading New York
Clean Air Act as amended 42 U.S.C. terminal. North Carolina
7545(c) and (i). This action is a (A) Where a refinery is aggregated Pennsylvania
rulemaking subject to the provisions of with a truck loading terminal, diesel Rhode Island
Clean Air Act section 307(d). See 42 fuel or other product subject to the South Carolina
U.S.C. 7606(d)(1). Additional support requirements of this subpart I produced Vermont
for the procedural and enforcement by such refinery and distributed over Virginia
related aspects of the rule comes from the truck terminal rack must be West Virginia
sections 144(a) and 301(a) of the Clean included in refinery batches that may be (2) The following States are included
Air Act. 42 U.S.C. 7414(a) and 7601(a). based on shipments to a truck terminal in PADD II:
List of Subjects in 40 CFR Part 80 rack tank or on the total volumes Illinois
delivered to tanker trucks for a period Indiana
Environmental protections, Fuel not to exceed 1 calendar month per Iowa
additives, Imports, Labeling, Motor batch. Kansas
vehicle pollution, Penalties, Reporting (B) Where a refinery is aggregated Kentucky
and recordkeeping requirements. with a truck loading terminal, diesel Michigan
Dated: April 20, 2006. fuel or other product subject to the Minnesota
Stephen L. Johnson, requirements of this subpart I that were Missouri

Administrator.
imported or produced by another Nebraska
refinery, and that are distributed North Dakota
■ For the reasons set out in the through the refinery or truck terminal Ohio
preamble, title 40, chapter I, of the Code rack, must be treated as previously Oklahoma
South Dakota October 15, 2006 through May 31, 2007; provided under paragraph (c)(5) of this
Tennessee June 1, 2007 through June 30, 2008; July section.
Wisconsin 1, 2008 through June 30, 2009; July 1, * * * * *
(3) The following States are included 2009 through May 31, 2010. ■ 8. Section 80.532 is amended by
in PADD III: (4) Except as provided in paragraph revising paragraph (d)(1)(i) to read as
Alabama (e) of this section, compliance with the follows:
Arkansas limitation of paragraph (c)(1) of this
Louisiana section shall be as calculated under § 80.532 How are motor vehicle diesel fuel
§ 80.599(e). credits used and transferred?
Mississippi
New Mexico * * * * * * * * * *
Texas (e) * * * (d) * * *
(2) A retailer or wholesale purchaser- (1) * * *
(4) The following States are included
consumer who does not sell, offer for (i) The motor vehicle diesel fuel
in PADD IV:
sale, or dispense motor vehicle diesel credits were generated in the same CTA
Colorado fuel subject to the 15 ppm sulfur as the CTA in which motor vehicle
Idaho diesel fuel credits are used to achieve
standard under § 80.520(a)(1) must
Montana compliance, except as provided in
comply with the downgrading
Utah § 80.531(c)(5);
limitations of paragraph (c) of this
Wyoming
section, such that it may not downgrade * * * * *
(5) The following States are included a volume of motor vehicle diesel fuel, ■ 9. Section 80.533 is amended as
in PADD V: designated as subject to the 15 ppm follows:
Alaska sulfur standard, for more than 20% of ■ a. By revising the section heading.
Arizona the total volume of motor vehicle diesel ■ b. By adding a new paragraph
California fuel that it sells, offers for sale, or (c)(2)(iii).
Hawaii dispenses in any compliance period. ■ c. By revising paragraph (d)(2).
Nevada * * * * * ■ d. By adding introductory text to
Oregon paragraph (e).
■ 7. Section 80.531 is amended by
Washington ■ e. By revising paragraph (e)(1).
revising paragraphs (a)(5)(i), (a)(5)(ii),
(6) The following areas are included ■ f. By revising paragraph (f).
and (d)(2), and by adding paragraphs ■ g. By revising paragraph (g).
in PADD VI: (a)(5)(v) and (c)(5) to read as follows: ■ h. By revising paragraph (h).
U.S. Virgin Islands
§ 80.531 How are motor vehicle diesel fuel ■ i. By adding a new paragraph (i).
Commonwealth of Puerto Rico
credits generated?
■ 5. Section 80.520 is amended by § 80.533 How does a refiner or importer
(a) * * * apply for a motor vehicle or non-highway
revising paragraph (b)(2) introductory (5) * * * baseline for the generation of NRLM credits
text to read as follows: (i) PADDs I, II, III and IV, as described or the use of the NRLM small refiner
§ 80.520 What are the standards and dye in § 80.502(f) except as provided in compliance options?
requirements for motor vehicle diesel fuel? paragraph (a)(5)(iv) of this section. The * * * * *
* * * * * CTAs shall be designated as CTA 1, 2, (c) * * *
(b) * * * 3, and 4, respectively, and correspond to (2) * * *
(2) Until June 1, 2010, any #1D or #2D PADDs I, II, III, and IV, respectively; (iii) For purposes of a total diesel
distillate, or NP diesel fuel that does not (ii) CTA 5 shall correspond to PADD baseline volume for use in determining
show visible evidence of dye solvent red V, as described in § 80.502(f), except as compliance with the provisions of
164 shall be considered to be motor provided in paragraphs (a)(5)(iii) and § 80.554(d), the baseline volumes of
vehicle diesel fuel and subject to all the (iv) of this section; motor vehicle diesel fuel produced
requirements of this subpart for motor * * * * * during the calendar years beginning
vehicle diesel fuel, except for distillate (v) The U.S. territories specified in January 1, 1998 and 1999 (per
fuel designated or classified as any of § 80.502(f)(6) shall be included in CTA §§ 80.595(a) and 80.596(a)); and the
the following: 1. baseline volumes of non-highway diesel
* * * * * fuel produced during the three calendar
* * * * *
(c) * * * years beginning January 1, 2003, 2004,
■ 6. Section 80.527 is amended by and 2005. This shall be calculated as
(5) Credit transfers for early credits.
revising paragraph (c) introductory text, stated under paragraph (f) of this
For early credits generated under
(c)(3), (c)(4), and (e)(2) to read as section.
§ 80.531(c), credits may be used in any
follows:
of the CTAs 1 through 5 that were * * * * *
§ 80.527 Under what conditions may motor generated in any of the CTAs 1 through (d) * * *
vehicle diesel fuel subject to the 15 ppm 7 to achieve compliance with the (2) Under paragraph (c)(2)(ii) of this
sulfur standard be downgraded to motor volume limit in § 80.503(a)(3); section, BMV equals the average annual
vehicle diesel fuel subject to the 500 ppm * * * * * volume of motor vehicle diesel fuel
sulfur standard? produced or imported during the period
(d) * * *
* * * * * (2) Credits generated under from January 1, 2006 through December
(c) Downgrading limitation. The paragraphs (b) and (c) of this section 31, 2008.
provisions of this section apply shall be generated separately by CTA as * * * * *
beginning October 15, 2006. defined in paragraph (a)(5) of this (e) Calculation of the Non-highway
* * * * * section and must be designated by CTA Baseline, BNRLM. For purposes of this
(3) Compliance with the limitation of of generation, and by the refiner and paragraph (e), BMV shall only include
paragraph (c)(1) of this section applies refinery, or by importer and port of the average annual volume of #2D
separately for the compliance periods of import, as applicable, except as distillate fuel.
(1) Under paragraphs (c)(2)(i) and be received by EPA at least 30 calendar of the total MVNRLM diesel fuel
(c)(2)(iii) of this section, BNRLM equals days prior to the date it begins produced by the refiner must be
the average annual volume of all #2D generating credits under this section. accurately designated under § 80.598(a)
distillate produced or imported from * * * * * as meeting the 15 ppm sulfur standard
January 1, 2003 through December 31, ■ 11. Section 80.551 is amended by of § 80.510(b).
2005, less BMV as determined in adding paragraph (f) to read as follows: (ii) The refiner must produce
paragraph (d)(1) of this section. MVNRLM diesel fuel each year or
* * * * * § 80. 551 How does a refiner obtain partial year under paragraph (d)(1)(i) of
approval as a small refiner under this this section at a volume that is equal to
(f) Calculation of the Total Diesel
subpart? or greater than 85 percent of BMVNRLM,
Baseline, BMVNRLM. BMVNRLM equals the
sum of BMV (as calculated under * * * * * as defined in § 80.533, calculated on an
§ 80.596) plus BNRLM (as calculated (f) Approval of small refiner status for annual basis.
under paragraph (e)(1) of this section). refiners who apply under § 80.550(e) * * * * *
(g)(1) Applications submitted under will be based on all information (3)(i) If the refiner fails to produce the
paragraphs (c)(2)(i) and (c)(2)(iii) of this submitted under paragraph (c) of this necessary volume of 15 ppm sulfur
section must be postmarked by February section, except as provided in MVNRLM diesel fuel by June 1, 2006
28, 2006. § 80.550(e). and every year thereafter through the
(2) Applications submitted under * * * * * deadlines specified under paragraph
paragraph (c)(2)(ii) of this section must ■ 12. Section 80.553 is amended by (d)(1)(i) of this section, the refiner must
be postmarked by February 28, 2009. revising paragraphs (b) and (d) to read report this in its annual report under
(h)(1) For applications submitted as follows: § 80.604, and the adjustment of gasoline
under paragraphs (c)(2)(i) and (c)(2)(iii) sulfur standards under paragraph
§ 80.553 Under what conditions may the
of this section, EPA will notify refiners small refiner gasoline sulfur standards be (d)(2)(i) of this section will be
or importers by June 1, 2006 of approval extended for a small refiner of motor considered void as of January 1, 2004.
of the baselines for each of the refiner’s vehicle diesel fuel? * * * * *
refineries or importer’s import facilities * * * * * ■ 14. Section 80.570 is amended by
or of any deficiencies in the refiner’s or (b) As part of its application, the revising paragraph (e) to read as follows:
importer’s application. refiner must submit an application for a
(2) For applications submitted under motor vehicle diesel fuel baseline in § 80.570 What labeling requirements apply
paragraph (c)(2)(ii) of this section, EPA accordance with the provisions of to retailers and wholesale purchaser-
will notify refiners or importers by June consumers of diesel fuel beginning June 1,
§§ 80.595 and 80.596. The application 2006?
1, 2009 regarding approval of the must also include information, as
baselines for each of the refiner’s provided in § 80.594, demonstrating that * * * * *
refineries or importer’s import facilities starting no later than June 1, 2006, 95 (e) Alternative labels to those
of any deficiencies in the refiner’s or percent of the motor vehicle diesel fuel specified in paragraphs (a) through (c) of
importer’s application. produced by the refiner will comply this section may be used as approved by
(i) If at any time the motor vehicle with the 15 ppm sulfur content standard EPA.
baseline or non-highway baseline under § 80.520(a)(1), and that the ■ 15. Section 80.571 is amended by
submitted in accordance with the volume of motor vehicle diesel fuel revising paragraph (f) to read as follows:
requirements of this section is produced will comply with the volume
determined to be incorrect, EPA will § 80.571 What labeling requirements apply
requirements of paragraph (e) of this to retailers and wholesale purchaser-
notify the refiner or importer of the section. consumers of NRLM diesel fuel or heating
corrected baseline and any compliance
* * * * * oil beginning June 1, 2007?
calculations made on the basis of that (d) Beginning June 1, 2006, and
baseline will have to be adjusted * * * * *
continuing through December 31, 2010, (f) Alternative labels to those
retroactively. 95 percent of the motor vehicle diesel specified in paragraphs (a) through (d)
■ 10. Section 80.535 is amended by fuel produced by a refiner that has of this section may be used as approved
revising paragraphs (a)(1)(i) and (c)(1)(i) received an extension of its small refiner by EPA.
to read as follows: gasoline sulfur standards under this ■ 16. Section 80.572 is amended by
§ 80.535 How are NRLM diesel fuel credits section must be accurately designated revising paragraph (f) to read as follows:
generated? under § 80.598 as meeting the 15 ppm
sulfur content standard under § 80.572 What labeling requirements apply
(a) * * *
§ 80.520(a)(1). to retailers and wholesale purchaser-
(1) * * * consumers of NR and NRLM diesel fuel and
(i) The refiner or importer notifies * * * * *
heating oil beginning June 1, 2010?
EPA of its intention to generate credits ■ 13. Section 80.554 is amended by
revising paragraphs (d)(1)(i), (d)(1)(ii), * * * * *
and the period during which it will
and (d)(3)(i) to read as follows: (f) Alternative labels to those
generate credits. This notification must
specified in paragraphs (a) through (d)
be received by EPA at least 30 calendar
§ 80.554 What compliance options are of this section may be used as approved
days prior to the date it begins available to NRLM diesel fuel small by EPA.
generating credits under this section. refiners?
* * * * * * * * * * revising paragraph (c) to read as follows:
(c) * * * (d) * * *
(1) * * * (1) * * * § 80.573 What labeling requirements apply

(i) The refiner or importer notifies (i) From June 1, 2006 until the to retailers and wholesale purchaser-
EPA of its intention to generate credits expiration of the refiner’s small refiner consumers of NRLM diesel fuel and heating
and the period during which it will gasoline sulfur standards (through oil beginning June 1, 2012?
generate credits. This notification must December 31, 2007 or 2010) 95 percent * * * * *
(c) Alternative labels to those identified as subject to the 15 ppm (i) Pipeline Ticketing. For the case
specified in paragraph (a) of this section sulfur standard of § 80.520(a)(1). where a pipeline delivers a batch of
may be used as approved by EPA. * * * * * ULSD to another facility that contains
■ 18. Section 80.574 is amended by ■ 20. Section 80.581 is amended by slight amounts of another type of fuel
revising paragraph (d) to read as revising paragraph (c)(1) to read as from a preceding or following batch, a
follows: follows: clear statement must be included on the
PTD denoting this. When this occurs,
§ 80.574 What labeling requirements apply § 80.581 What are the batch testing and the receiving facility must handle the
to retailers and wholesale purchaser- sample retention requirements for motor fuel appropriately (e.g., redesignate or
consumers of NRLM diesel fuel, or heating vehicle and NRLM diesel fuel? downgrade any amount of fuel in that
oil beginning June 1, 2014? * * * * * batch that does not meet the applicable
* * * * * (c)(1) Any refiner who produces sulfur standard), in accordance with the
(d) Alternative labels to those motor vehicle or NRLM diesel fuel using provisions of §§ 80.527 and 80.599.
specified in paragraphs (a) and (b) of computer-controlled in-line blending ■ 22. Section 80.591 is amended by
this section may be used as approved by equipment, including the use of an on- revising paragraphs (b)(3), (b)(4)(i),
EPA. line analyzer test method that is (b)(4)(ii), and (b)(4)(iii) to read as
approved under the provisions of follows:
§ 80.580, and who, subsequent to the
revising paragraph (d) to read as § 80.591 What are the product transfer
production of the diesel fuel batch tests
follows: document requirements for additives to be
a composited sample of the batch under
the provisions of § 80.580 for purposes used in diesel fuel?
§ 80.580 What are the sampling and
testing methods for sulfur? of designation and reporting, is exempt * * * * *
* * * * * from the requirement of paragraph (b) of (b) * * *
this section to obtain the test result (3) If the additive package contains a
(d) Adjustment factor for downstream static dissipater additive and/or red dye
test results. (1) Except as specified in required under this section prior to the
diesel fuel leaving the refinery, having a sulfur content greater than 15
paragraph (d)(1)(i) of this section, an ppm, a statement must be included
adjustment factor of negative two ppm provided that the refiner obtains
approval from EPA. The requirement of which accurately describes the contents
sulfur shall be applied to the test results of the additive package pursuant to one
from any testing of motor vehicle diesel this paragraph (c)(1) that the in-line
blending equipment must include an of the following choices:
fuel or NRLM diesel fuel downstream of (i) ‘‘This diesel fuel additive contains
the refinery or import facility, to on-line analyzer test method that is
approved under the provisions of a static dissipater additive having a
account for test variability, but only for sulfur content greater than 15 ppm.’’
testing of motor vehicle diesel fuel or § 80.580 is effective beginning June 1,
2006. (ii) ‘‘This diesel fuel additive contains
NRLM diesel fuel identified as subject red dye having a sulfur content greater
to the 15 ppm sulfur standard of * * * * * than 15 ppm.’’
§ 80.510(b) or § 80.520(a)(1). ■ 21. Section 80.590 is amended by (iii) ‘‘This diesel fuel additive
(i) Prior to October 15, 2008 an revising paragraphs (a)(7) introductory contains a static dissipater additive and
adjustment factor of negative three ppm text and (a)(7)(i), and by adding red dye having a sulfur content greater
sulfur shall be applied to the test paragraph (i) to read as follows: than 15 ppm.’’
results, to account for test variability, (4) * * *
§ 80.590 What are the product transfer
but only for testing of motor vehicle document requirements for motor vehicle
(i) The additive package’s maximum
diesel fuel or NRLM diesel fuel diesel fuel, NRLM diesel fuel, heating oil sulfur concentration.
identified as subject to the 15 ppm and other distillates? (ii) The maximum recommended
sulfur standard of § 80.510(b) or concentration in volume percent for use
(a) * * *
§ 80.520(a)(1). (7) For transfers of title or custody of the additive package in diesel fuel.
(ii) [Reserved.] (iii) The contribution to the sulfur
from one facility to another in the
level of the fuel, in ppm, that would
(2) In addition to the adjustment distribution system where diesel fuel or
result if the additive package is used at
factor provided in paragraph (d)(1)(i) of distillates are taxed, dyed or marked,
the maximum recommended
this section, prior to September 1, 2006, and for any subsequent transfers (except
concentration.
an adjustment factor of negative 7 ppm when such fuel is dispensed into motor
shall be applied to the test results from vehicles or nonroad, locomotive, or * * * * *
any testing of motor vehicle diesel fuel marine equipment), an accurate ■ 23. Section 80.592 is amended by
downstream of the refinery or import statement on the product transfer adding a new paragraph (f) to read as
facility, to facilitate the transition to document of the applicable fuel uses follows:
ULSD fuel, but only for testing of motor and classifications, as follows (however, § 80.592 What records must be kept by
vehicle diesel fuel identified as subject in instances where space is constrained, entities in the motor vehicle diesel fuel and
to the 15 ppm sulfur standard of substantially similar language may be diesel fuel additive distribution systems?
§ 80.520(a)(1). used following approval from EPA): * * * * *
(3) In addition to the adjustment (i) Undyed 15 ppm sulfur diesel fuel. (f) Additional records to be kept by
factor provided in paragraph (d)(1)(i) of For the period from June 1, 2006 and aggregated facilities consisting of a
this section, prior to October 15, 2006, beyond, ‘‘15 ppm sulfur (maximum) refinery and a truck loading terminal. In
an adjustment factor of negative 7 ppm Undyed Ultra-Low Sulfur Diesel Fuel. addition to the records required by
shall be applied to the test results from For use in all diesel vehicles and paragraph (a) of this section, such
any testing of motor vehicle diesel fuel engines.’’ From June 1, 2006 through aggregated facilities must also keep the
at any retail outlet or wholesale May 31, 2010, the product transfer following records beginning June 1,
purchaser-consumer facility, to facilitate document must also state whether the 2006:
the transition to ULSD fuel, but only for diesel fuel is #1D or #2D, or NP diesel. (1) The following information for each
testing of motor vehicle diesel fuel * * * * * batch of motor vehicle diesel fuel
produced by the refinery and sent over any distillate listed in paragraph (c)(1) Such fuel must subsequently be
the aggregated facility’s truck rack: of this section: redesignated by the receiving terminal
(i) The batch volume; * * * * * as either #1D or #2D 15 ppm motor
(ii) The batch number, assigned under (5) Exceptions for Excluded Liquids. vehicle diesel fuel, or segregated for
the batch numbering procedures under An entity that would otherwise be delivery by tank truck to a retail or
§§ 80.65(d)(3) and 80.502(d)(1); required to register pursuant to the wholesale purchaser consumer facility
(iii) The date of receipt or import; requirements of paragraphs (c)(1) and inside the State of California pursuant to
(iv) A record designating the batch as (c)(2) of this section is exempted from § 80.617(b)(2).
motor vehicle diesel fuel meeting the the registration requirements under this (iv) NP 15 ppm sulfur motor vehicle
500 ppm sulfur standard or as motor section provided that: diesel fuel.
vehicle diesel fuel meeting the 15 ppm (i) The only diesel fuel or heating oil (3) * * *
sulfur standard; and, that the entity delivers or receives on (iv) Fuel that meets the requirements
(v) A record indicating the volumes specified in § 80.616 that is transferred
which taxes have not been assessed or
that were either taxed, dyed, or dyed by a pipeline facility to a terminal
which is not received dyed pursuant to
and marked. facility outside of the State of California
Internal Revenue Service (IRS) code 26
(2) Volume reports for all motor pursuant to § 80.617(b) may be
CFR part 48 is an excluded liquid as
vehicle diesel fuel from external sources designated as California diesel fuel.
defined pursuant to IRS code 26 CFR
(i.e., from another refiner or importer), Such fuel must either be redesignated
4081–1(b).
as described in § 80.601(f)(2), sent over by the receiving terminal as either #1D
(ii) The entity does not transfer the
the aggregated facility’s truck rack. or #2D 15 ppm motor vehicle diesel fuel
excluded liquid to a facility which
■ 24. Section 80.595 is amended by as prescribed in paragraph (b)(9)(xvi) of
delivers or receives diesel fuel other
revising the section heading to read as than an excluded liquid on which taxes this section, or segregated for delivery
follows: have not been assessed pursuant to IRS by tank truck to a retail or wholesale
code (26 CFR part 48). purchaser consumer facility inside the
§ 80.595 How does a small or GPA refiner
apply for a motor vehicle diesel fuel volume * * * * * State of California pursuant to
baseline for the purpose of extending their § 80.617(b)(2).
■ 26. Section 80.598 is amended as
gasoline sulfur standards? (v) NP 15 ppm sulfur motor vehicle
follows: diesel fuel.
* * * * * ■ a. By adding paragraph (a)(2)(v)(C). (4) * * *
■ 25. Section 80.597 is amended by ■ b. By revising paragraph (a)(3)(iv). (iv) NP 500 ppm sulfur motor vehicle
revising paragraphs (c)(1) introductory ■ c. By revising paragraph (a)(3)(vi). diesel fuel.
text, and (c)(2) introductory text, and ■ d. By adding paragraphs (b)(2)(iii) and
adding paragraphs (c)(1)(iv) and (c)(5) to (b)(2)(iv). * * * * *
read as follows: (9) * * *
■ e. By adding paragraphs (b)(3)(iv) and
(xvi) Fuel designated as California
(b)(3)(v).
§ 80.597 What are the registration diesel fuel under paragraph (b)(3)(iv) of
■ f. By adding paragraph (b)(4)(iv).
requirements? this section that is received by a
■ g. By adding paragraph (b)(9)(xvi).
* * * * * terminal facility pursuant to the
(c) Entity registration. (1) Except as § 80.598 What are the designation provisions of § 80.617(b)(1) must be
prescribed in paragraph (c)(5) of this requirements for refiners, importers, and redesignated as either #1D or #2D 15
section, each entity as defined in distributors? ppm motor vehicle diesel fuel as
§ 80.502 that intends to deliver or (a) * * * prescribed in paragraph (b)(9)(xvi) of
receive custody of any of the following (2) * * * this section, or segregated for delivery
fuels from June 1, 2006 through May 31, (v) * * * by tank truck to a retail or wholesale
2010 must register with EPA by (C) NP diesel (NP). purchaser consumer facility inside the
December 31, 2005 or six months prior (3) * * * State of California pursuant to
to commencement of producing, (iv) Prior to June 1, 2009 all 15 ppm § 80.617(b)(2).
importing, or distributing any distillate sulfur MVNRLM diesel fuel must be * * * * *
listed in paragraphs (c)(1)(i) through designated as motor vehicle diesel fuel. ■ 27. Section 80.599 is amended as
(c)(1)(iii) of this section: A refiner that has been approved as a follows:
* * * * * NRLM diesel fuel small refiner under ■ a. By revising paragraph (b)(2).
(iv) Fuel designated as California § 80.551(g) and has elected to use the ■ b. By revising paragraph (e)(2).
Diesel fuel under § 80.598 on which compliance option specified under ■ c. By revising paragraph (e)(4).
taxes have not been assessed and red § 80.554(d) may also designate 15 ppm ■ d. By revising paragraph (e)(5).
dye has not been added (if required) sulfur MVNRLM fuel as NRLM diesel ■ e. By adding a new paragraph (h).
pursuant to IRS code (26 CFR part 48) fuel beginning June 1, 2006.
and that is delivered by pipeline to a * * * * * § 80.599 How do I calculate volume
(vi) Beginning June 1, 2014, any balances for designation purposes?
terminal outside of the State of
California pursuant to the provisions of distillate fuel having a sulfur content * * * * *
§ 80.617(b). greater than 15 ppm may not be (b) * * *
(2) Except as prescribed in paragraph designated as MVNRLM diesel fuel. (2) Calculate the motor vehicle diesel
(c)(5) of this section, each entity as (b) * * * fuel received, as follows:
defined in § 80.502 that intends to (2) * * * MVI = MV15I + MV500I
deliver or receive custody of any of the (iii) Fuel that meets the requirements Where:
following fuels from June 1, 2007 specified in § 80.616 which is MV15I = the total volume of all the batches
through May 31, 2014 must register with transferred by a pipeline facility to a of fuel designated as 15 ppm sulfur
EPA by December 31, 2005 or six terminal facility outside of the State of motor vehicle diesel fuel received for the
months prior to commencement of California pursuant to § 80.617(b) may compliance period. Any motor vehicle
producing, importing, or distributing be designated as California diesel fuel. diesel fuel produced by or imported into
the facility shall also be included in this designated as #1D 15 ppm sulfur motor ■ c. By revising paragraphs (a)(3)(ii) and
volume. Any untaxed and undyed vehicle diesel fuel when it was (a)(3)(iii).
California diesel fuel received by a delivered. ■ d. By adding a new paragraph
terminal pursuant to § 80.617 (b)(1) shall (a)(3)(iv).
(5) The following calculation may be
be included in this volume. ■ e. By revising paragraphs (a)(4)(i) and
MV500I = the total volume of all batches of
used to account for wintertime blending
fuel designated as 500 ppm sulfur motor of kerosene, the blending of non- (a)(4)(ii).
petroleum diesel, and/or changes in the ■ f. By adding a new paragraph
vehicle diesel fuel received for the
compliance period. Any motor vehicle facility’s volume balance of motor (a)(4)(iii).
diesel fuel produced by or imported into vehicle diesel fuel resulting from a ■ g. By revising paragraph (b)(1)(i)(D).
the facility shall also be included in this temporary shift of 500 ppm sulfur ■ h. By adding new paragraphs
volume. NRLM diesel fuel to 500 ppm sulfur (b)(1)(i)(E), (b)(1)(i)(F), (b)(1)(i)(G), and
motor vehicle diesel fuel during the (b)(1)(i)(H).
* * * * * ■ i. By revising paragraphs (b)(1)(ii)(G)
(e) * * * compliance period:
and (b)(1)(ii)(H).
(2) The volume of #2D 15 ppm sulfur #2MV500O < #2MV500I + #2MV500P ¥
■ j. By adding new paragraphs
motor vehicle delivered must meet the #2MV500INVCHG + 0.2 * #2MV15I +
(b)(1)(ii)(I), (b)(1)(ii)(J), (b)(1)(ii)(K), and
following requirement: #1MV15B + #2NRLM500S + NPB
(b)(1)(ii)(L).
(#2MV15O + #2MV15INVCHG) ≥ 0.8 * Where: ■ k. By revising paragraphs (b)(1)(iii)(B)
#2MV15I #1MV15B = the total volume of fuel received and (b)(1)(iii)(C).
during the compliance period that is ■ l. By adding a new paragraph
Where:
designated as #1D 15 ppm sulfur motor (b)(1)(iii)(D).
#2MV15O = the total volume of fuel delivered vehicle diesel fuel and that the facility ■ m. By revising paragraphs (b)(1)(iv)(A)
during the compliance period that is can demonstrate they blended into #2D
designated as #2D 15 ppm sulfur motor and (b)(1)(iv)(B).
500 ppm sulfur motor vehicle diesel fuel. ■ n. By adding a new paragraph
vehicle diesel fuel. Any motor vehicle diesel fuel produced
#2MV15INVCHG = the total volume of diesel by or imported into the facility shall not
(b)(1)(iv)(C).
fuel designated as #2D 15 ppm sulfur ■ o. By revising paragraphs (b)(1)(v)(A)
be included in this volume.
motor vehicle diesel fuel in inventory at #2MV500P = the total volume of fuel and (b)(1)(v)(B).
the end of the compliance period minus produced by or imported into the facility ■ p. By adding a new paragraph
the total volume of #2D 15 ppm sulfur during the compliance period that was (b)(1)(v)(C).
motor vehicle diesel fuel in inventory at designated as #2MV 500 ppm sulfur ■ q. By revising paragraphs (b)(1)(vi)(A)
the beginning of the compliance period, motor vehicle diesel fuel when it was and (b)(1)(vi)(B).
and accounting for any corrections in delivered. ■ r. By adding a new paragraph
inventory due to volume swell or #2NRLM500S = the total volume of #2D 500 (b)(1)(vi)(C).
shrinkage, difference in measurement ppm sulfur NRLM diesel fuel that the ■ s. By revising paragraphs (b)(1)(vii)(B)
calibration between receiving and facility can demonstrate they
delivering meters, and similar matters, and (b)(1)(vii)(C).
redesignated as #2D 500 ppm sulfur ■ t. By adding a new paragraph
where corrections that increase motor vehicle diesel fuel during the
inventory are defined as positive. compliance period.
(b)(1)(vii)(D).
#2MV15I = the total volume of fuel received ■ u. By revising paragraphs
NPB = the total volume of fuel received
during the compliance period that is during the compliance period that is (b)(1)(viii)(A) and (b)(1)(viii)(B).
designated as #2D 15 ppm sulfur motor designated as NP15 ppm sulfur motor ■ v. By adding a new paragraph
vehicle diesel fuel. Any untaxed and vehicle diesel fuel, and/or NP500 ppm (b)(1)(viii)(C).
undyed California diesel fuel received by sulfur motor vehicle diesel fuel which ■ w. By adding new paragraphs (n) and
a terminal pursuant to § 80.617(b)(1) the facility can demonstrate they (o).
shall be included in this volume. blended into #2D 500 ppm sulfur motor
vehicle diesel fuel. § 80.600 What records must be kept for
* * * * * purposes of the designate and track
(4) The following calculation may be * * * * * provisions?
used to account for wintertime blending (h) Additional requirements for (a) * * *
of kerosene and the blending of non- aggregated facilities consisting of a (1) * * *
petroleum diesel: refinery and a truck loading terminal. In (v) #2D 500 ppm sulfur motor vehicle
#2MV500O < = #2MV500I + #2MV500P addition to the volume balance diesel fuel;
¥ #2MV500INVCHG + 0.2 * requirements required by paragraphs (a) (vi) 500 ppm sulfur NRLM diesel fuel;
(#1MV15I + #2MV15I + NPMV15I) through (g) of this section, aggregated (vii) NP 15 ppm sulfur motor vehicle
facilities consisting of a refinery and a diesel fuel;
Where:
truck loading terminal are responsible (viii) NP 500 ppm sulfur motor
#1MV15I the total volume of fuel received
for balance calculations on the volume vehicle diesel fuel; or,
during the compliance period that is
designated as #1D 15 ppm sulfur motor difference between the total volume of (ix) Exempt distillate fuels such as
vehicle diesel fuel. Any motor vehicle diesel fuel sold over the truck loading fuels that are covered by a national
diesel fuel produced by or imported into terminal rack and the production security exemption under § 80.606, fuels
the facility shall not be included in this volume from the batch reports. that are used for purposes of research
volume. Mathematically, the difference will be and development pursuant to § 80.607,
NPMV15I is the total volume of fuel received the volume of fuel received from and fuels used in the U.S. Territories
during the compliance period that is external sources and passed through to pursuant to § 80.608 (including
designated as NP15 ppm sulfur motor another facility. additional identifying information).
vehicle diesel fuel. Any motor vehicle
diesel fuel produced by or imported into ■ 28. Section 80.600 is amended as * * * * *
the facility shall not be included in this follows: (3) * * *

volume. ■ a. By revising paragraphs (a)(1)(v) and (ii) 500 ppm sulfur LM diesel fuel;
#1MV15P = the total volume of fuel produced (a)(1)(vi). (iii) Heating oil; or
by or imported into the facility during ■ b. By adding new paragraphs (iv) Exempt distillate fuels such as
the compliance period that was (a)(1)(vii), (a)(1)(viii), and (a)(1)(ix). fuels that are covered by a national
security exemption under § 80.606, fuels (iv) * * * are not required to be maintained
that are used for purposes of research (A) 500 ppm sulfur NRLM diesel fuel; separately for each entity or facility to
and development pursuant to § 80.607, (B) Heating oil; or whom fuel was delivered.
and fuels used in the U.S. Territories (C) Exempt distillate fuels such as (o) In addition to the requirements of
pursuant to § 80.608 (including fuels that are covered by a national §§ 80.592 and 80.602, the following
additional identifying information). security exemption under § 80.606, fuels recordkeeping requirements shall apply
(4) * * * that are used for purposes of research to aggregated facilities consisting of a
(i) 500 ppm sulfur NRLM diesel fuel; and development pursuant to § 80.607, refinery and truck loading terminal:
(ii) Heating oil; or and fuels used in the U.S. Territories (1) Any aggregated facility consisting
(iii) Exempt distillate fuels such as pursuant to § 80.608 (including of a refinery and truck loading terminal
fuels that are covered by a national additional identifying information). shall maintain records of the following
security exemption under § 80.606, fuels (v) * * * information for each batch of distillate
that are used for purposes of research (A) 500 ppm sulfur LM diesel fuel; fuel produced by the refinery and sent
and development pursuant to § 80.607, (B) Heating oil; or over the aggregated facility’s truck
and fuels used in the U.S. Territories (C) Exempt distillate fuels such as loading terminal rack:
pursuant to § 80.608 (including fuels that are covered by a national (i) The batch volume;
additional identifying information). security exemption under § 80.606, fuels (ii) The batch number, assigned under
* * * * * that are used for purposes of research the batch numbering procedures under
(b) * * * and development pursuant to § 80.607, §§ 80.65(d)(3) and 80.502(d)(1);
(1) * * * and fuels used in the U.S. Territories (iii) The date of production;
(i) * * * pursuant to § 80.608 (including (iv) A record designating the batch as
(D) #2D 500 ppm sulfur motor vehicle additional identifying information). distillate fuel meeting either the 500
diesel fuel; (vi) * * * ppm or 15 ppm sulfur standard; and,
(E) California diesel fuel as defined in (A) High sulfur NRLM diesel fuel; (v) A record indicating the volumes
§ 80.616 which is transferred out of the (B) Heating oil; or that were either taxed, dyed, or dyed
State of California pursuant to the (C) Exempt distillate fuels such as and marked.
provisions of § 80.617(b); fuels that are covered by a national (2) Volume reports for all distillate
(F) NP 15 ppm sulfur motor vehicle security exemption under § 80.606, fuels fuel from external sources (i.e., from
diesel fuel; that are used for purposes of research another refiner or importer), as
(G) NP 500 ppm sulfur motor vehicle and development pursuant to § 80.607, described in § 80.601(f)(2), sent over the
diesel fuel; or and fuels used in the U.S. Territories aggregated facility’s truck rack.
(H) Exempt distillate fuels such as pursuant to § 80.608 (including ■ 29. Section 80.601 is amended as
fuels that are covered by a national additional identifying information). follows:
security exemption under § 80.606, fuels (vii) * * * ■ a. By revising paragraph (a)
that are used for purposes of research (B) 500 ppm sulfur LM diesel fuel; introductory text.
and development pursuant to § 80.607, (C) Heating oil; or ■ b. By revising paragraph (a)(1)(i).
and fuels used in the U.S. Territories (D) Exempt distillate fuels such as ■ c. By revising paragraph (a)(2)(i).
pursuant to § 80.608 (including fuels that are covered by a national ■ d. By revising paragraphs (a)(4)(v) and
additional identifying information). security exemption under § 80.606, fuels (a)(4)(vi).
(ii) * * * that are used for purposes of research ■ e. By revising paragraph (b)
(G) High sulfur NRLM diesel fuel; and development pursuant to § 80.607, introductory text.
(H) Heating oil; ■ f. By adding a new paragraph (b)(4).
and fuels used in the U.S. Territories
(I) California diesel fuel as defined in ■ g. By adding a new paragraph (f).
pursuant to § 80.608 (including
§ 80.616 which is transferred out of the
additional identifying information). § 80.601 What are the reporting
State of California pursuant to the
(viii) * * * requirements for purposes of the designate
provisions of § 80.617(b);
(J) NP 15 ppm sulfur motor vehicle (A) 500 ppm sulfur NRLM diesel fuel; and track provisions?
diesel fuel; (B) Heating oil; or (a) Quarterly compliance period
(K) NP 500 ppm sulfur motor vehicle (C) Exempt distillate fuels such as reports. Beginning February 28, 2007
diesel fuel; or fuels that are covered by a national and continuing through August 31,
(L) Exempt distillate fuels such as security exemption under § 80.606, fuels 2010, each entity required to register
fuels that are covered by a national that are used for purposes of research under § 80.597 and to maintain records
security exemption under § 80.606, fuels and development pursuant to § 80.607, under § 80.600 must report the
that are used for purposes of research and fuels used in the U.S. Territories following information separately for
and development pursuant to § 80.607, pursuant to § 80.608 (including each of its facilities to the Administrator
and fuels used in the U.S. Territories additional identifying information). as specified in paragraph (d)(1) of this
pursuant to § 80.608 (including * * * * * section except as provided in paragraph
additional identifying information). (n) Notwithstanding the provisions of (e) of this section.
(iii) * * * paragraphs (b)(2) and (b)(3) of this (1) * * *
(B) 500 ppm sulfur LM diesel fuel; section, for batches of 15 ppm sulfur (i) Beginning with the first
(C) Heating oil; or motor vehicle diesel fuel or California compliance period and continuing up to
(D) Exempt distillate fuels such as diesel fuel under § 80.617(b) on which and including the compliance period
fuels that are covered by a national taxes have been paid per Section 4082 that starts April 1, 2007, fuel designated
security exemption under § 80.606, fuels of the Internal Revenue Code (26 U.S.C. as 15 ppm or 500 ppm motor vehicle
that are used for purposes of research 4082), and 15 ppm sulfur NRLM diesel diesel fuel, or California diesel fuel as
and development pursuant to § 80.607, fuel or California diesel fuel under defined in § 80.616 which is distributed
and fuels used in the U.S. Territories § 80.617(b) into which red dye has been outside the State of California pursuant
pursuant to § 80.608 (including added per Section 4082 of the Internal to § 80.617(b).
additional identifying information). Revenue Code (26 U.S.C. 4082), records * * * * *
(2) * * * (ii) Reports detailing the quarterly ■ m. By revising paragraphs (f)(7)

(i) Beginning with the first totals of all undesignated fuel received introductory text and (f)(7)(i), (f)(7)(ii),
compliance period and continuing up to from external refiner/importer sources and (f)(7)(iii).
and including the compliance period that entered the designate and track
that starts April 1, 2007, fuel designated system. § 80.614 What are the alternative defense
requirements in lieu of § 80.613(a)(1)(vi)?
as 15 ppm or 500 ppm motor vehicle ■ 30. Section 80.602 is amended by
diesel fuel, or California diesel fuel as adding a new paragraph (g) to read as Any person who blends a MVNRLM
defined in § 80.616 which is distributed follows: diesel fuel additive package into
outside the State of California pursuant MVNRLM diesel fuel subject to the 15
to § 80.617(b). § 80.602 What records must be kept by ppm sulfur standards of § 80.510(b) or
* * * * * entities in the NRLM diesel fuel and diesel (c) or § 80.520(a) which contains a static
fuel additive production, importation, and dissipater additive that has a sulfur
(4) * * * distribution systems?
(v) The volume balance under content greater than 15 ppm but whose
§§ 80.599(b)(4) and 80.598(b)(9)(vi). * * * * * contribution to the sulfur content of the
(vi) Beginning with the compliance (g) Additional records to be kept by MVNRLM diesel fuel is less than 0.4
period starting June 1, 2007, the volume aggregated facilities consisting of a ppm at its maximum recommended
balance under §§ 80.599(c)(2) and refinery and a truck loading terminal. In concentration, and/or red dye that has a
80.598(b)(9)(viii)(A). addition to the applicable records sulfur content greater than 15 ppm but
(b) Annual reports. Beginning August required by paragraphs (a) through (f) of whose contribution to the sulfur content
31, 2007, all entities required to register this section, such aggregated facilities of the MVNRLM diesel fuel is less than
under § 80.597 and to maintain records must also keep the following records: 0.04 ppm at its maximum recommended
for batches of fuel under § 80.600 must (1) The following information for each concentration, and which contains no
report the following information batch of motor vehicle diesel fuel other additives with a sulfur content
separately for each of its facilities to the produced by the refinery and sent over greater than 15 ppm must establish all
Administrator on an annual basis, as the aggregated facility’s truck rack: the following in order to use this section
specified in paragraph (d)(2) of this (i) The batch volume; as an alternative to the defense element
section except as provided in paragraph (ii) The batch number, assigned under under § 80.613(a)(1)(vi):
(e) of this section. the batch numbering procedures under (a)(1) The blender of the additive
* * * * * §§ 80.65(d)(3) and 80.502(d)(1); package has a sulfur content test result
(4) In the case of aggregated facilities (iii) The date of production; for the MVNRLM diesel fuel prior to
consisting of a refinery and truck (iv) A record designating the batch as blending of the additive package that
loading terminal, the results of annual one of the following: indicates that the additive package,
compliance calculations under § 80.598 (A) NRLM diesel fuel, NR diesel fuel, when added, will not cause the
for any distillate fuel received from an LM diesel fuel, or heating oil, as MVNRLM diesel fuel sulfur content to
external source on which taxes have not applicable. exceed 15 ppm sulfur.
been assessed and is not dyed and/or (B) Meeting the 500 ppm sulfur (2) In cases where the storage tank
marked that the refinery will be handing standard of § 80.510(a) or the 15 ppm that contains MVNRLM diesel fuel prior
off to another party, rather than selling sulfur standard of § 80.510(b) and (c) or to additization contains multiple fuel
over the truck loading terminal rack. other applicable standard. batches, the blender of the additive
(C) Dyed or undyed with visible package must have sulfur test results on
* * * * *
evidence of solvent red 164. each batch of MVNRLM diesel fuel that
(f) Additional requirements for
(D) Marked or unmarked with solvent was added to the storage tank during the
aggregated facilities consisting of a
yellow 124. current and previous volumetric
refinery and a truck loading terminal. In
(2) Hand-off reports for all distillate accounting reconciliation (VAR)
addition to the reporting requirements
fuel from external sources (i.e., from periods, which indicates that the
listed by paragraphs (a) through (e) of
another refiner or importer), as additive package, when added to the
this section, as applicable, such
described in § 80.601(f)(2). component MVNRLM diesel fuel batch
aggregated facilities are also subject to
the following requirements: ■ 31. Section 80.614 is amended as in the storage tank with the highest
(1) Batch reports. Reports containing follows: sulfur level would not cause that
the requirements detailed in §§ 80.592(f) ■ a. By revising the section heading. component batch to exceed 15 ppm
and 80.600(m), must be submitted for all ■ b. By revising the introductory text. sulfur.
distillate produced by the refinery and ■ c. By revising paragraph (a). (b) The VAR standard is attained as
sent over the truck loading terminal ■ d. By revising paragraph (b). determined under the provisions of this
rack. ■ e. By revising paragraph (d). section. The VAR reconciliation
(2) Quarterly volume reports. Reports ■ f. By revising paragraph (e). standard is attained when the actual
detailing the quarterly totals of all ■ g. By revising paragraphs (f)(1) concentration of the additive package
designations, including whether the fuel introductory text and (f)(1)(i). used per the VAR formula record under
was taxed or contained red dye (or red ■ h. By revising paragraph (f)(1)(ii). paragraph (f) of this section is less than
dye and the yellow marker), that left the ■ i. By revising paragraphs (f)(1)(iii), the concentration that would have
truck loading terminal rack must be (f)(1)(iv), (f)(1)(v), (f)(1)(vi), (f)(1)(vii) caused any batch of MVNRLM diesel
submitted for all distillate received from introductory text, (f)(1)(vii)(D), and fuel to exceed a sulfur content of 15
an external source or produced by the (f)(1)(iii). ppm given the maximum sulfur test
refinery. ■ j. By revising paragraphs (f)(2) result on any MVNRLM diesel fuel
(3) Quarterly hand-off reports. introductory text and (f)(2)(i). batch described in paragraph (a) of this
(i) Reports detailing the quarterly ■ k. By revising paragraphs (f)(2)(iii), section that is additized with the
totals of all designations of fuel received (f)(2)(iv), (f)(2)(vi), and (f)(2)(vii). additive package during the VAR
from external refiner/importer sources, ■ l. By revising paragraphs (f)(5) and period.
if any. (f)(6)(i), (f)(6)(ii), (f)(6)(iii), and (f)(6)(iv). * * * * *
(d) If more than one additive package volume of additive package measured, concentration adjustment information
containing a static dissipater additive together with supporting data which may be supplied on the VAR formula
and/or red dye is used during a VAR includes one of the following: the record or in the form of computer
period, then a separate VAR formula beginning and ending meter readings for printouts or other comparable VAR
record must be created for MVNRLM each meter being measured, the metered supporting documentation. No
diesel fuel additized for each of the batch volume measurements for each concentration setting is permitted above
additive packages used. In such cases, meter being measured, or other the maximum recommended
the amount of the each additive package comparable metered measurements. The concentration supplied by the additive
used must be accurately and separately supporting data may be supplied on the manufacturer, except as described in
measured, either through the use of a VAR formula record or in the form of paragraph (f)(1)(vii) of this section.
separate storage tank, a separate meter, computer printouts or other comparable (vi) The dates of the VAR period,
or some other measurement system that VAR supporting documentation. which shall be no longer than thirty-one
is able to accurately distinguish its use. (B) For a facility which uses a gauge days. If the VAR period is
(e) Recorded volumes of MVNRLM to measure the inventory of the additive contemporaneous with a calendar
diesel fuel and the additive package package storage tank, the total volume of month, then specifying the month will
must be expressed to the nearest gallon additive package shall be calculated fulfill this requirement; if not, then the
(or smaller units), except that additive from the following equation: beginning and ending dates and times of
package volumes of five gallons or less Additive package volume = (A) ¥ (B) + the VAR period must be listed. The
must be expressed to the nearest tenth (C) ¥ (D) times may be supplied on the VAR
of a gallon (or smaller units). However, Where: formula record or in supporting
if the blender’s equipment cannot documentation. Any adjustment to any
A = Initial additive package inventory of the
accurately measure to the nearest tenth tank additive package concentration rate
of a gallon, then such volumes must be B = Final additive package inventory of the initially set in the VAR period shall
rounded upward to the next higher tank terminate that VAR period and initiate
gallon for purposes of determining C = Sum of any additions to additive package a new VAR period, except as provided
compliance with this section. inventory in paragraph (f)(1)(vii) of this section.
(f) * * * D = Sum of any withdrawals from additive
package inventory for purposes other
(vii) The concentration setting for the
(1) Automated blending facilities. In
than the additization of MVNRLM diesel additive package injector may be
the case of an automated additive
fuel. changed from the concentration initially
package blending facility, for each VAR
set in the VAR period without
period, for each storage system for an (C) The value of each variable in the
terminating that VAR period, provided
additive package containing a static equation in paragraph (f)(1)(ii)(B) of this
that:
dissipater additive and/or red dye, and section must be separately recorded on
each additive package in that storage the VAR formula record. In addition, a * * * * *
system, the following must be recorded: list of each additive package addition (D) If the correction is initiated only
(i)(A) The manufacturer and included in variable C and a list of each to rectify an equipment malfunction,
commercial identifying name of the additive package withdrawal included and the amount of additive package
package being reconciled, the maximum in variable D must be provided, either used in this procedure is not added to
recommended treatment level, the on the formula record or as VAR MVNRLM diesel fuel within the
potential contribution to the sulfur supporting documentation. compliance period, then this amount is
content of the finished fuel that might (iii) The total volume of MVNRLM subtracted from the additive package
result when the additive package is used diesel fuel to which the additive volume listed on the VAR formula
at its maximum recommended treatment package has been added, together with record. In such a case, the addition of
level, the intended treatment level, and supporting data which includes one of this amount of additive must be
the contribution to the sulfur content of the following: the beginning and ending reflected in the following VAR period.
the finished fuel that would result when meter measurements for each meter (viii) The measured sulfur level for
the additive package is used at its being measured, the metered batch each batch of MVNRLM diesel fuel to
intended treatment level. The intended volume measurements for each meter which the additive package is added
treatment level is the treatment level being measured, or other comparable during each VAR period. In cases where
that the additive injection equipment is metered measurements. The supporting the storage tank that contains MVNRLM
set to. data may be supplied on the VAR diesel fuel prior to additization contains
(B) The maximum recommended formula record or in the form of multiple fuel batches, a measured sulfur
treatment level and the intended computer printouts or other comparable level on each batch added to the storage
treatment level must be expressed in VAR supporting documentation. tank during the current and previous
terms of gallons of the additive package (iv) The actual concentration of the VAR periods must be recorded.
per thousand gallons of MVNRLM additive package, calculated as the total (2) Non-automated facilities. In the
diesel fuel, and expressed to four volume of the additive package added case of a facility in which hand
significant figures. If the additive (pursuant to paragraph (f)(1)(ii) of this blending or any other non-automated
package storage system which is the section), divided by the total volume of method is used to blend the additive
subject of the VAR formula record is a MVNRLM diesel fuel (pursuant to packages, for each additive package and
proprietary system under the control of paragraph (f)(1)(iii) of this section). The for each batch of MVNRLM diesel fuel
a customer, this fact must be indicated concentration must be calculated and to which the additive package is being
on the record. recorded to 4 significant figures. added, the following shall be recorded:
(ii) The total volume of the additive (v) A list of each additive package (i) The manufacturer and commercial
package blended into MVNRLM diesel concentration rate set for the additive identifying name of the additive
fuel, in accordance with one of the package that is the subject of the VAR package being reconciled, the maximum
following methods, as applicable. record, together with the date and recommended treatment level, the
(A) For a facility which uses in-line description of each adjustment to any potential contribution to the sulfur
meters to measure usage, the total initially set concentration. The content of the finished fuel that might
result when the additive package is used provided that the calibrations occur in available to EPA, upon request, the
at its maximum recommended treatment the appropriate half calendar year and preceding two months of VAR formula
level, the intended treatment level, and are no less than one hundred twenty records and VAR supporting
the contribution to the sulfur content of days apart. documentation.
the finished fuel that would result when (6) * * * (iii) Facilities which have centrally
the additive package is used at its (i) For all automated additive package maintained records at other locations, or
intended treatment level. blending facilities, documentation have customers who maintain their own
(A) The maximum recommended reflecting performance of the records at other locations for their
treatment level and the intended calibrations required by paragraph (f)(5) proprietary additive package injection
treatment level must be expressed in of this section, and any associated systems, and which can document this
terms of gallons of additive package per adjustments of the automated additive fact to the Agency, may have until the
thousand gallons of MVNRLM diesel package injection equipment; start of the next business day after the
fuel, and expressed to four significant (ii) For all blending facilities that EPA request to supply VAR supporting
figures. blend an additive package containing a documentation, or longer if approved by
(B) If the additive package storage static dissipater additive and/or red dye, the Agency.
system which is the subject of the VAR product transfer documents for all such
* * * * *
formula record is a proprietary system additive packages, and MVNRLM diesel
■ 32. A new § 80.616 is added to subpart
under the control of a customer, this fact fuel transferred into or out of the facility
that is additized with an additive I to read as follows:
must be indicated on the record.
package containing a static dissipater § 80.616 What are the enforcement
* * * * *
(iii) The volume of added additive additive and/or red dye; exemptions for California diesel distributed
(iii) For all automated additive within the State of California?
package.
(iv) The volume of the MVNRLM package blending facilities that use an (a) For the purpose of this section,
diesel fuel to which the additive additive package containing a static ‘‘California diesel fuel’’ is defined as
package has been added. dissipater additive and/or red dye, any diesel fuel physically within the
documentation establishing the brands State of California that satisfies all
* * * * * (if known) of the MVNRLM diesel fuel
(vi) The actual additive package requirements of Title 13, California
which is the subject of the VAR formula Code of Regulations, Sections 2281–
concentration, calculated as the volume record; and
of added additive package (pursuant to 2285, and is sold, intended for sale, or
(iv) For all hand blenders of an made available for sale as a motor fuel
paragraph (f)(1)(ii)(B) of this section), additive package that contains a static
divided by the volume of MVNRLM in the State of California, subsequent to
dissipater additive and/or red dye, the May 31, 2006.
diesel fuel (pursuant to paragraph documentation, if in the party’s
(f)(1)(iii) of this section). The (b) Any retailer or wholesale
possession, supporting the volumes of purchaser-consumer of California diesel
concentration must be calculated and MVNRLM diesel fuel and additive
recorded to four significant figures. fuel is, with regard to such diesel fuel,
package reported on the VAR formula exempt from the labeling requirements
(vii) The measured sulfur level for record.
each batch of MVNRLM diesel fuel to contained in §§ 80.570, 80.571, 80.572,
(7) Document retention and 80.573, and 80.574.
which the additive package is added availability. All blenders of an additive
during each VAR period. In cases where (c)(1) Any refiner, importer, or
package that contains a static dissipater distributor of California diesel fuel is,
the storage tanks that contains additive and/or red dye shall retain the
MVNRLM diesel fuel prior to with regard to such diesel fuel, exempt
documents required under this section from the product transfer requirements
additization contains multiple fuel for a period of five years from the date
batches, a measured sulfur level on each of § 80.590, provided that the product
the VAR formula records and transfer document contains the
batch added to the storage tank during supporting documentation are created,
the current and previous VAR periods following statement:
and shall deliver them upon request to ‘‘California diesel fuel. Maximum 15
must be recorded. the EPA Administrator or the ppm sulfur.’’
* * * * * Administrator’s authorized (2) Product codes may be used to
(5) Calibration requirements for representative. satisfy this product transfer document
automated blending facilities. (i) Except as provided in paragraph requirement.
Automated static dissipater additive (f)(7)(iii) of this section, automated (d) Any refiner, importer, or
package blenders must calibrate their additive package blender facilities and distributor of California diesel fuel is,
additive package equipment at least hand-blender facilities which are with regard to such diesel fuel, exempt
once in each calendar half year, with the terminals, which physically blend an from the designation requirements of
acceptable calibrations being no less additive packages that contains a static § 80.598, provided that:
than one hundred twenty days apart, dissipater additive and/or red dye into (1) The refiner, importer, or
except that calibrations may be closer in MVNRLM diesel fuel, must make distributor does not transfer custody of
time so long as at least two calibrations immediately available to EPA, upon the California diesel fuel to facility
meet the requirements to be in separate request, the preceding twelve months of outside the State of California;
halves of the calendar year and no less VAR formula records plus the preceding (2) The fuel is intended to be sold or
than 120 days apart. Equipment two months of VAR supporting made available for sale in the State of
recalibration is also required each time documentation. California; and
the static dissipater additive package is (ii) Except as provided in paragraph (3) The PTD requirements in
changed, unless written documentation (f)(7)(iii) of this section, other hand- paragraph (f) of the section are satisfied.
indicates that the new additive package blending additive package facilities (e) Any refiner, importer, or
has the same viscosity as the previous which physically blend additive distributor of California diesel fuel is,
additive package. Additive package package that contains a static dissipater with regard to such diesel fuel, exempt
change calibrations may be used to additive and/or red dye into MVNRLM from the volume balance requirements
satisfy the semiannual requirement diesel fuel must make immediately of § 80.599.
(f) Any refiner, importer, or fuel that is distributed from a truck vehicle diesel meeting the 15 ppm
distributor of California diesel fuel is, loading terminal after such diesel has sulfur standard; and
with regard to such diesel fuel, exempt been taxed or dyed may be distributed (vi) The terminal includes the
from the recordkeeping requirements or sold outside of the State of California, volumes of California diesel fuel
under designate and track provisions of provided that it is accompanied by a redesignated as motor vehicle diesel
§ 80.600. Product Transfer Document that states: fuel in the total volume of motor vehicle
(g) Any refiner, importer, or ‘‘California diesel fuel. Maximum 15 diesel designated meeting the 15 ppm
distributor of California diesel fuel is, ppm sulfur.’’; or sulfur standard received by the
with regard to such diesel fuel, exempt (b) Distribution of untaxed and terminal, per the volume balance and
from the reporting requirements for the undyed diesel California diesel fuel. anti-downgrading equations for motor
purposes of the designate and track California diesel may be distributed or vehicle diesel fuel found in § 80.599(b)
provisions of § 80.601. sold outside of the State of California and (e).
(h) Any refiner, importer, or without having been dyed or taxed
(2)(i) The California diesel fuel is
distributor of California diesel fuel is, provided that the requirements of either
delivered via pipeline to a terminal
with regard to such diesel fuel, exempt paragraph (b)(1) or (b)(2) of this section
outside the State of California that has
from the recordkeeping requirements for are satisfied. (Note that the requirements
a tank dedicated to the receipt of
entities in the MV or NRLM diesel fuel of IRS code 26 CFR part 48 along with
California diesel fuel and which intends
and diesel fuel additive production, other applicable requirements outside of
to distribute the diesel fuel from the
importation, and distribution systems of this 40 CFR part 80 subpart I must also
dedicated tank back into the State of
§§ 80.592 and 80.602 except those be satisfied.)
(1)(i) Prior to shipment outside the California;
relating to sampling and testing, under
§§ 80.581, 80.584, 80.585, and 80.586. State of California, the California diesel (ii) The terminal must maintain the
(i) Any refiner or importer of fuel meets all requirements of § 80.616 designation of the diesel fuel as
California diesel fuel is, with regard to and meets all of the requirements of 40 ‘‘California diesel fuel’’ and not
such diesel fuel, exempt from the CFR part 80, subpart I that are not redesignate it to another product;
annual reporting requirements for exempted under this section; (iii) The product transfer documents
NRLM diesel under § 80.604. (ii) The California diesel fuel is for California diesel fuel distributed by
■ 33. A new § 80.617 is added to subpart shipped out of the state via pipeline; a terminal outside of the state of
I to read as follows: (iii) The pipeline shipping the California must indicate ‘‘California
California diesel out of state maintains diesel fuel. Maximum 15 ppm sulfur.’’;
§ 80.617 How may California diesel fuel be the California diesel fuel designation and,
distributed or sold outside of the State of while the product is in the pipeline’s
California?
(iv) Any volume of California diesel
custody; fuel distributed by a terminal outside
California diesel may be distributed or (iv) The pipeline provides a product the state of California must be taxed or
sold outside of the State of California transfer document that clearly indicates dyed and must be excluded from the
provided the provisions of either that the product is designated as terminal’s volume balance equations
paragraph (a) or (b) of this section are California diesel fuel; under § 80.599.
satisfied: (v) Upon delivery into the terminal,
(a) Distribution of taxed or dyed the terminal receiving the California [FR Doc. 06–3930 Filed 4–28–06; 8:45 am]
California diesel fuel. California diesel diesel fuel redesignates it as motor BILLING CODE 6560–50–P

Rule: Air Programs: Fuel and Fuel Additives&#8212 Highway Diesel and Nonroad Diesel Regulations Technical Amendments

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Rule: Air Programs: Fuel and Fuel Additives&#8212 Highway Diesel and Nonroad Diesel Regulations Technical Amendments

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ENVIRONMENTAL PROTECTION • http://www.regulations.gov: Follow able to consider your comment.

Industry ...................................................................................................... 324110 Petroleum refiners.

regarding entities likely to be affected by this action as noted in FOR FURTHER

diesel fuel additives are typically loading.

Stephen L. Johnson, requirements of this subpart I that were Missouri

(1) * * * (1) * * * § 80.573 What labeling requirements apply

the facility shall not be included in this follows: (3) * * *

(2) * * * (ii) Reports detailing the quarterly ■ m. By revising paragraphs (f)(7)

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