[[pp. 35529-35559]] Control of Air Pollution From New Motor Vehicles: Proposed Heavy-

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: June 2, 2000 (Volume 65, Number 107)]
[Proposed Rules]
[Page 35529-35559]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02jn00-28]

[[pp. 35529-35559]] Control of Air Pollution From New Motor Vehicles: Proposed Heavy-
Duty Engine and Vehicle Standards and Highway Diesel Fuel Sulfur
Control Requirements

[[Continued from page 35528]]

[[Page 35529]]

pollutants based on changing ambient conditions. This issue was also
discussed in the October 29, 1999 proposal (64 FR 58472). You should
read that discussion and the comments that we received in response to
that proposal.

VIII. Requirements for Refiners, Importers, and Fuel Distributors

A. Compliance and Enforcement

1. Overview
The proposed rule would create a national, industry-wide sulfur cap
standard for highway diesel fuel of 15 ppm. This standard could be
enforced through sampling and testing at all points in the distribution
system, combined with inspection of fuel delivery records and other
commercial documents. The compliance requirements of this proposed rule
would thus be very similar to the current diesel sulfur rule, except
that the sulfur standard would be substantially more stringent.\169\
Since the 15 ppm cap would be the maximum acceptable sulfur level at
the retail level, pipelines might set more stringent refiner
specifications to account for test variability and contamination. See
section VIII.A.2 for a discussion of the refinery level standard and
enforcement testing.
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\169\ 40 CFR 80.29-80.30.
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Under the proposed rule, all parties in the distribution system
would continue to be subject to the current diesel fuel requirements
and prohibitions concerning aromatics and cetane (40 CFR 80.29(a)).
Furthermore, until the proposed implementation dates, all of the
requirements and prohibitions of the presently effective diesel fuel
control rule will remain in effect with the limited modification
concerning sulfur test methods as discussed in section VIII.A.4.
Diesel fuel not covered by today's proposed rule includes that used
for off-highway mobile source purposes such as aircraft, off-road
machinery and equipment, locomotives, boats and marine vessels, and for
stationary source purposes such as utilities (electrical power
generation), portable generators, air compressors, steam boilers, etc.
Also excluded is highway diesel fuel exported for sale outside the
United States and its territories, and that specified for research and
development subject to certain restrictions. Today's proposal would
allow the use of used motor oil in pre-2007 model year and specially
certified 2007 and later model year highway engines subject to certain
restrictions (see section VIII.A.3.b).
It should be noted that, while this preamble uses the common
vernacular ``highway diesel fuel,'' the terminology used in the
proposed regulations refers to ``motor vehicle diesel fuel'' in order
to be consistent with the definitions and authorities under the Clean
Air Act (see sections 202(a), 211(c), and 216(2)). The definition of
``motor vehicle diesel fuel'' clarifies that nonroad engines and
nonroad vehicles are not motor vehicles or motor vehicle engines. This
is intended to clarify the definition. Diesel fuel that is available
for use by both motor vehicles and engines and nonroad vehicles and
engines would be treated as motor vehicle diesel fuel and still subject
to the low sulfur diesel standard. For example, a diesel fuel pump used
by nonroad equipment and motor vehicles must carry diesel fuel meeting
the low sulfur diesel fuel requirements for motor vehicles.
2. What Are the Requirements for Refiners and Importers?

a. General Requirements

The sulfur sensitivity of emission controls on model year 2007 and
later vehicles requires that the sulfur content of diesel fuel at the
retail pump must not exceed 15 ppm (see section III). Thus, the
proposed rule would require refiners and importers, and all other
parties in the distribution system, to comply with the industry-wide
sulfur cap standard of 15 ppm for all highway diesel fuel, unless
specifically exempted (see sections VIII.A.6 and 7).
Under the proposed approach, there would be no published
enforcement test tolerance. If an enforcement test tolerance were
allowed, a more stringent refinery level sulfur standard would be
required to ensure the proposed 15 ppm retail level cap is attained. We
expect that the diesel fuel refining and distribution industry would
establish appropriate upstream commercial specifications to ensure the
15 ppm standard is met downstream. These parties are in the best
position to determine what the refinery level commercial specifications
need to be, and they are in control of the means to achieve those
specifications. Further, they may take advantage of improvements over
time in testing precision and contamination prevention measures to
adjust their operations to minimize costs. However, we recognize that
because of concerns about test variability and contamination in the
fuel distribution system, pipelines may set sulfur specifications that
would be more stringent than the regulatory standard.\170\
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\170\ See section IV.D. regarding the anticipated sulfur level
at the refinery gate necessary to accommodate variability in
production, variability in the proposed sulfur measurement procedure
(discussed in detail in section VII.A.), and contamination in the
distribution system.
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As discussed below, we are not proposing that refiners or importers
engage in mandatory sampling and testing of every batch of diesel fuel
they produce or import under the proposed industry-wide sulfur cap
program. However, if some approach is finalized other than what has
been proposed, then every-batch testing by refiners and importers, and
associated recordkeeping and reporting requirements, may be necessary.

b. Dyes and Markers

Under the federal tax code requirements and the current EPA diesel
fuel rule, diesel fuel intended for highway use can generally be
distinguished by its color from fuel intended for off-highway use.\171\
The current EPA diesel fuel regulations, at 40 CFR 80.29(b), provides
that any diesel fuel that does not show visible evidence of dye solvent
red 164 (which has a characteristic red color in fuel) is considered to
be available for use as diesel highway fuel and is subject to the
requirements and prohibitions associated with diesel highway fuel.
However, under the tax code, highway diesel fuel sold for certain tax
exempt uses may also be dyed red. Therefore, some red-dyed diesel fuel
is legal highway fuel under the EPA diesel fuel rule.
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\171\ See section 4082 of the Internal Revenue Code.
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Diesel fuel for off-highway use would continue to be dyed red under
today's proposal, except in Alaska (see section VI.C). We do not
believe that any additional dye requirement is needed to enhance
compliance or enforcement effectiveness of the proposed rule.
3. What Requirements Apply Downstream?

a. General Requirements

Due to the adverse effects of diesel fuel containing more than 15
ppm sulfur on model year 2007 and later vehicles, as discussed in
section III, diesel fuel at all levels of the distribution system would
be required to meet the 15 ppm standard. The proposed rule would
stagger the implementation dates for compliance with the standard,
based on a facility's position in the distribution system as a refiner,
distributor, or retailer. As with other fuels programs, EPA enforcement
personnel would sample and test for compliance with

[[Page 35530]]

this downstream standard at all points in the distribution system.
Under the proposed presumptive liability scheme, if a violation is
found at any point in the distribution system, all parties in the
distribution system for the fuel in violation are responsible unless
they can establish a defense. See section VIII.A.8 regarding liability,
penalty and defense provisions.
Under the proposed diesel sulfur program, it is imperative that
distribution systems segregate highway diesel fuel from high sulfur
distillate products such as home heating oil and nonroad diesel fuel.
The sulfur content of those products is frequently as high as 3,000
ppm. Our concern extends to potential misfueling at retail outlets and
wholesale purchaser-consumer facilities, even if segregation of the
different grades of diesel fuel has been maintained in the distribution
system.
Misfueling model year 2007 and later diesel vehicles with higher
sulfur fuel could severely damage their emission controls and cause
driveability problems. In order to discourage accidental misfueling of
highway vehicles with higher sulfur distillates such as nonroad diesel
fuel we are proposing that these fuel pumps be labeled. The proposed
rule would require that retailers and wholesale purchaser-consumers
selling or dispensing nonroad diesel fuel or other high sulfur
distillates in addition to highway diesel fuel must label any
dispensers of this higher sulfur fuel. The label would have to indicate
that the fuel is high sulfur and state that the fuel is illegal for use
in motor vehicles.
All parties in the distribution system would be subject to
prohibitions against selling, transporting, storing, or introducing or
causing or allowing the introduction of diesel fuel having a sulfur
content exceeding 15 ppm into highway diesel vehicles. Certain product
transfer document (PTD) information requirements would apply to all
parties in the distribution system. See section VIII.A.5.

b. Use of Used Motor Oil in Diesel-Fueled New Technology Vehicles

We are aware of the practice of disposing of used motor oil by
blending it with diesel fuel for use as fuel in diesel vehicles. Such
practices range from dumping used motor oil directly into the vehicle
fuel tank, to dumping it into the fuel storage tanks, to blending small
amounts of motor oil from the vehicle crank case into the fuel system
as the vehicle is being operated. To the extent such practices could
cause vehicles to exceed their emissions standards, the person blending
the oil, or causing or permitting such blending, could be considered to
be rendering emission controls inoperative in violation of section 203
of the CAA and potentially liable for a civil penalty.\172\
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\172\ Section 203(a)(3) of the Act, 42 U.S.C. 7522(a)(3).
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With today's proposal our concerns with this practice are increased
considerably. Today's formulations of motor oil contain very high
levels of sulfur. Depending on how the oil is blended, it could
increase the sulfur content of the fuel burned in the vehicle by as
much as 200 ppm. As discussed elsewhere in this notice, we believe this
practice would render inoperative not only the emission control
technology on the vehicle, but potentially render the vehicle
undriveable as well. Therefore, in today's notice we are proposing to
prohibit any person from introducing or causing or allowing the
introduction of used motor oil, or diesel fuel containing used motor
oil, into the fuel delivery systems of vehicles manufactured in model
year 2007 and later. The only exception to this would be where the
engine is explicitly certified to the emission standard with oil added,
the oil is added in a manner consistent with the certification, and the
sulfur level of the oil is representative of commercially available
oils. Today's proposal would not change existing requirements regarding
the use of used motor oil in pre-2007 model year engines. However, the
proposal would prevent the addition of used oil to diesel fuel prior to
its introduction into the vehicle fuel tank. We request comment on this
proposal, and in particular on whether an additional constraint can or
should be placed on the sulfur content of motor oil to preclude the
possibility that vehicle exhaust emission control technology would not
be adversely impacted should used motor oil be added to a vehicle's
fuel tank.

c. Use of Kerosene and Other Additives in Diesel Fuel

We are aware that kerosene is commonly added to diesel fuel to
reduce fuel viscosity in cold weather. Other additives are added to
diesel fuel for various purposes, including viscosity, lubricity, and
pour point. We are not proposing to limit this practice. However under
today's proposal, additives used in highway diesel fuel would be
required to meet the same 15 ppm standard proposed for highway diesel
fuel. To help ensure this, we are proposing that kerosene or other
additives meeting the 15 ppm standard, and distributed for use in motor
vehicles would be required to be accompanied by PTDs accurately stating
that the additive meets the 15 ppm standard. As an alternative for such
additives sold in cans or other containers, the required sulfur content
identification could be posted on the container itself. This
identification would be necessary to allow downstream parties to be
able to determine if additives such as kerosene meet the required 15
ppm sulfur limit. Any party who blends high sulfur additives into
highway diesel fuel, uses such additives as highway diesel fuel, or who
causes highway diesel fuel to exceed the standard due to the addition
of kerosene or other additives, would be subject to liability for
violating the rule. We are requesting comment on this proposal and any
alternative that would inform transferees of diesel fuel additives of
the appropriateness of their use in highway diesel fuel.
We are not proposing that refiners or importers of kerosene or
other additives which could be used in highway diesel fuel, would have
an affirmative duty to produce additives that meet the proposed 15 ppm
sulfur standard. This is because we believe that refiners will produce
low sulfur kerosene, for example, in the same refinery processes that
produce low sulfur diesel fuel, and that the market will drive supply
of low sulfur kerosene for those areas and seasons where the product is
needed for blending with highway diesel fuel. We request comment on
whether there should be an affirmative requirement for refiners or
terminals to supply low sulfur kerosene or whether all number one
kerosene should be required to meet the 15 ppm sulfur standard.
We also request comment on whether additives not meeting the 15 ppm
sulfur cap should be allowed to be added to diesel fuel downstream in
de minimis amounts, and if so, how such a program could be structured
to ensure that the additives would not cause the 15 ppm sulfur cap to
be exceeded. In addition we request comment on whether any regulatory
constraint at all need be placed on the sulfur level of diesel
additives, and whether instead the liability mechanisms contained in
this proposal are sufficient to protect against downstream parties
adding additives to diesel fuel that would cause the fuel delivered to
consumers to exceed the cap.
4. What Are the Proposed Testing and Sampling Methods and Requirements?

a. Testing Requirements and Test Methods

We do not believe an every-batch testing requirement for refiners
and

[[Page 35531]]

importers is necessary under the proposed rule. This is primarily
because refiners will likely voluntarily test every batch of fuel
produced to ensure it meets the 15 ppm sulfur standard, and because
pipeline operators will require test results before agreeing to ship
low sulfur highway diesel fuel. However, we are proposing to designate
a test method that would be used as the benchmark for all compliance
testing. We are requesting comment on whether every-batch testing
should be required in light of the requirement (discussed in section
VIII.A.5) for refiners to issue PTDs stating that the product meets the
applicable sulfur standard.
We propose to designate ASTM D 2622-98 with the minor modification
discussed below as the benchmark test method for quantifying the sulfur
content of diesel fuel for compliance determination. We are also
proposing that this test method would be the benchmark method to
determine compliance under the current sulfur control regulations. This
method is an updated version of the designated method under the current
highway diesel fuel rule. This test method is currently in wide use by
refiners and laboratories both for gasoline and diesel testing. This
method does not currently include test repeatability or reproducibility
information for diesel fuel having a sulfur content below 60 ppm.\173\
Nevertheless, in EPA's review of the test method, we believe that when
applied to low sulfur diesel fuel with the proposed modification, the
method has acceptable precision at sulfur levels below 15 ppm.
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\173\ Repeatability is defined by ASTM as the difference between
two test results, obtained by the same operator with the same
apparatus under constant operating conditions on identical test
material, that would, in the long run, in the normal and correct
operation of the test method, be exceeded only in one case in
twenty. Reproducibility is defined by ASTM as the difference between
two single and independent results obtained by different operators
working in different laboratories on identical test materials that
would, in the long run, in the normal and correct operation of the
test method, be exceeded only in one case in twenty.
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We have had success in improving the precision of the ASTM D 2622-
98 procedure in measuring low levels of diesel fuel sulfur through a
simple modification of the calibration method. This modification
includes two small changes. The first is the substitution of a
measurement blank that more closely resembles the boiling point range
and density of diesel fuel. The second is a change to the calibration
line to ensure that it goes through zero. This modification is detailed
in the proposed regulatory text. Using this modification, we have had
success in the correlation of test results with industry laboratories
on samples with sulfur content in the range of 1 to 20 ppm. We will
continue to investigate the proposed modification to the ASTM D 2622-98
procedure. Based on current information, we believe that lab-to-lab
reproducibility can be limited to a maximum of +/-4 ppm at sulfur
levels in the 1-20 ppm range. We do not anticipate that this
modification will add appreciably to the cost of sulfur testing.
We are requesting comments on performance data for diesel fuel
analysis using ASTM D 2622 at sulfur levels below 60 ppm, on additional
modifications to the procedure which might be needed to limit
variability, and on the cost of such modifications. Specifically,
comment is requested on whether only end-window type scanning
instruments should be used because additional variability is introduced
through the use side-window type instruments. \174\ If the use of side-
window type scanning instruments must be disallowed, comment is
requested on the extent such instruments are used and on the cost of
changing them to an end-window configuration.
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\174\ Side-window vs end-window refers to the location of the
sample cup.
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While we are proposing to designate the modified ASTM D 2622-98
procedure as the designated test method, we do not believe that such
designation should preclude regulated parties from using alternative
methods that afford them sufficient confidence that they are
demonstrably in compliance. Therefore, we are proposing that
alternative methods may be used for quality assurance purposes provided
that the proper correlation is established between the alternative
method and the benchmark method.\175\ Since EPA enforcement testing
would be conducted using the modified ASTM D 2622 procedure, parties
would need to have considerable confidence in any alternative methods
they may use. We believe that for quality assurance testing, an
approach that could provide more flexibility and potentially save costs
for industry would be to allow other appropriate ASTM test methods, so
long as they are conducted properly and the results correlate to the
designated method. Although these test results could be used by the
government to demonstrate noncompliance, this should not be a
substantial concern since any test result that demonstrates
noncompliance should lead to appropriate action on the part of the
regulated party, as would a test result from the use of the designated
method. We seek comment on this approach.
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\175\ EPA is preparing to propose, in another action, a set of
criteria by which alternative methods for measuring fuel parameters
may be evaluated and controlled in practice. We are not proposing to
prescribe these criteria and statistical quality control methods in
this rulemaking, but suggest that their use will enhance the
credibility of measurements made with alternative methods and
offered in situations where testing is necessary to establish a
defense.
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EPA's proposed designation of the modified ASTM D 2622-98 procedure
is based on a review of currently available methods. Should superior
methods be developed in the future, EPA will certainly consider an
orderly process of redesignation to take advantage of newer
technologies.
One commenter to the ANPRM stated that ASTM D 2622 may not be
suitable for determining the sulfur content of biodiesel. We request
comment on whether ASTM D 2622-98 is appropriate for determining the
sulfur content of biodiesel, or mixtures of biodiesel and conventional
diesel fuel, and if not, what test methods are appropriate, and any
data supporting these conclusions.
We are also proposing a test method for the determination of sulfur
in motor oil, since that may be relevant if any engine manufacturers
choose to certify engines with the addition of motor oil to the fuel.
The test method we are proposing is ASTM D 4927-96, Standard Test
Methods for Elemental Analysis of Lubricant and Additive Components--
Barium, Calcium, Phosphorus, Sulfur, and Zinc by Wavelength-Dispersive
Fluorescence Spectroscopy. This method uses the same apparatus as D
2622-998, but includes specific methodology to compensate for
interferences caused by the additives present in motor oil. We request
comment on this test method.

b. Sampling Methods

We are proposing the use of sampling methods that were proposed for
use in the Tier 2/gasoline sulfur rule. \176\ These proposed sampling
methods are ASTM D 4057-95 (manual sampling) and D 4177-95 (automatic
sampling from pipelines/in-line blending). We are proposing to require
the use of these ASTM methods instead of the methods currently provided
in 40 CFR part 80, appendix G, for determining compliance under both
the newly proposed 15 ppm sulfur standard, and the 500 ppm standard
currently in place. That is because the proposed methods have been
updated by ASTM, and the

[[Page 35532]]

updates have provided clarification and have eliminated certain
requirements that are not necessary for sampling petroleum products
such as diesel fuel.
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\176\ 64 FR 26004, at 26098 (May 13, 1999). These methods are
also proposed for use under the RFG and CG rules. See 62 FR 37337
(July 11, 1997).
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5. What Are the Proposed Recordkeeping Requirements?
We are proposing that refiners and importers provide information on
commercial PTDs that identify diesel fuel for highway use and that it
complies with the 15 ppm sulfur standard (unless exempted). We believe
this additional information on commercial PTDs is necessary because of
the importance of avoiding commingling of high sulfur distillate
products with highway diesel fuel. It is proposed that all parties in
the distribution chain, from the refiner or importer to the retailer or
wholesale purchaser-consumer would be required to retain copies of
these PTDs for a period of 5 years. This is the same period of time
required in other fuels rules, and it coincides with the applicable
statute of limitations. We believe that for other reasons, most parties
in the distribution system would maintain such records for this length
of time even without the requirement.
We are proposing that the current diesel rule's PTD requirement
regarding the identification of dyed, tax-exempt highway diesel fuel
would be retained. This provision is useful for wholesale purchaser-
consumers who need to know that the tax exempt highway diesel fuel is
appropriate for highway use despite the presence of red dye. We are
also proposing that product codes may be used to convey the information
required to be included in PTD's, for all parties except for transfers
to truck carriers, retailers or wholesale purchaser-consumers. This
provision is consistent with other fuel programs. However, we are
seeking comment on also allowing product codes to be used for transfers
to truck carriers, retailers or wholesale purchaser-consumers.
We are proposing that records of any test results performed by any
regulated party for quality assurance purposes or otherwise, must be
maintained for 5 years, along with supporting documentation such as
date of sampling and testing, batch number, tank number, and volume of
product. Also, business records regarding actions taken in response to
any violations discovered would be required to be maintained.
As noted above, we are also proposing that commercial PTDs for
kerosene or other products sold for blending into highway diesel fuel
must indicate that the product meets the 15 ppm federal sulfur standard
for use in diesel motor vehicles. We believe that such PTDs are already
a part of normal business practices and therefore such a requirement
would add little if any burden. We invite comment on this proposal.
Given the importance of avoiding highway diesel fuel sulfur
contamination under today's proposed rule, we are also concerned that
additional measures may be needed to assure off-highway distillates are
not commingled with, or used as, highway diesel fuel. Such high sulfur
products could easily raise the sulfur level of low sulfur highway
diesel fuel, and damage emission controls on new vehicles and cause
driveability problems. Therefore, we request comment on whether
shipment of distillate products such as nonroad diesel fuel and home
heating oil should be required to be accompanied by PTDs stating that
the products do not meet highway diesel standards and are illegal for
use in highway vehicles.
6. Are There Any Proposed Exemptions Under This Subpart?
We are proposing to exempt from the sulfur requirements diesel fuel
used for research, development, and testing purposes. We recognize that
there may be legitimate research programs that require the use of
diesel fuel with higher sulfur levels than allowed under today's
proposed rule. As a result, today's proposal contains provisions for
obtaining an exemption from the prohibitions for persons distributing,
transporting, storing, selling, or dispensing diesel fuel that exceeds
the standards, where such diesel fuel is necessary to conduct a
research, development, or testing program.
Under the proposal, parties would be required to submit to EPA an
application for exemption that would describe the purpose and scope of
the program and the reasons why the use of the higher-sulfur diesel
fuel is necessary. Upon presentation of the required information, the
exemption would be granted at the discretion of the Administrator, with
the condition that EPA could withdraw the exemption ab initio in the
event the Agency determines the exemption is not justified. Fuel
subject to this exemption would be exempt from the other provisions of
this subpart, provided certain requirements are met. These requirements
include such conditions as the segregation of the exempt fuel from non-
exempt highway diesel fuel, identification of the exempt fuel on
product transfer documents, and the replacement, repair, or removal
from service of emission systems damaged by the use of the high sulfur
fuel.
We believe that the proposal includes the least onerous
requirements for industry that also would ensure that higher-sulfur
diesel fuel would be used only for legitimate research purposes. We
request comment on these proposed provisions.
We are requesting comment on the need to provide an exemption from
the sulfur content and other requirements of this proposal for diesel
fuel used in racing vehicles. We see no advantage to racing vehicles
for having fuel with higher sulfur levels (or lower cetane or higher
aromatic levels) than would be required by today's proposal.
Conversely, we are concerned about the potential for misfueling that
could result from having a racing fuel with higher sulfur in the
marketplace that would be intended for use only in racing or
competition versions of highway vehicles. Consequently, we are not
proposing that diesel fuel used in racing vehicles be exempted from the
diesel fuel requirements proposed today. We request comment on this
decision and whether an exemption should be allowed for racing diesel
fuel.
7. Would California Be Exempt From the Rule?
Although California is currently considering diesel fuel
regulations, we do not propose to exempt California from the federal
rule at this time.\177\ California has received an exemption from
certain compliance related provisions under the Federal reformulated
gasoline (RFG) program, on the grounds that California has implemented
a program in covered areas that meets or exceeds Federal RFG standards
and because the California ARB has sufficient resources and authority
to enforce the program to ensure equivalent environmental benefits are
realized. These exemptions cover such enforcement provisions as
recordkeeping, reporting, and test methods. California gasoline is not
exempted from the standards for Federal RFG or conventional gasoline.
See 40 CFR 80.81. We have also proposed full exemption for California
from the proposed gasoline sulfur standards and other provisions of
that rule because California has an effective gasoline sulfur program
that is different from the

[[Page 35533]]

proposed federal rule. Although it would be premature to grant similar
exemptions to the California low-sulfur diesel program at this time,
EPA may revisit the issue of enforcement exemptions when such action is
timely, and we invite public comment on this approach. Exemptions for
other states and territories are discussed in section VI.C.
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\177\ On November 10, 1998, The California ARB held a workshop
to comply with the Governor's Executive Order W-144-97. At that
workshop the ARB discussed the possibility of amending Title 13 of
the California Code of Regulations, Section 2281, ``Sulfur Content
of Diesel Fuel.'' Under that section, California currently enforces
a 500 ppm sulfur standard for highway diesel fuel. The ARB is
considering a diesel fuel standard that may be as stringent as, or
more stringent than, the standard we are proposing today.
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8. What Are the Proposed Liability and Penalty Provisions for
Noncompliance?
Today's proposed rule contains provisions for liability and
penalties that are similar to the liability and penalty provisions of
the other EPA fuels regulations. Under the proposed rule, regulated
parties would be liable for committing certain prohibited acts, such as
selling or distributing diesel fuel that does not meet the sulfur
standards, or causing others to commit prohibited acts. In addition,
parties would be liable for a failure to meet certain affirmative
requirements, or causing others to fail to meet affirmative
requirements. All parties in the diesel fuel distribution system,
including refiners, importers, distributors, carriers, retailers, and
wholesale purchaser-consumers, would be liable for a failure to fulfill
the recordkeeping requirements and the PTD requirements.

a. Presumptive Liability Scheme of Current EPA Fuels Programs

All EPA fuels programs include a presumptive liability scheme for
violations of prohibited acts. Under this approach, liability is
imposed on two types of parties: (1) The party in the fuel distribution
system that controls the facility where the violation was found or had
occurred; and (2) those parties, typically upstream in the fuel
distribution system from the initially listed party, (such as the
refiner, reseller, and any distributor of the fuel), whose prohibited
activities could have caused the program non-conformity to exist.\178\
This presumptive liability scheme has worked well in enabling us to
enforce our fuels programs, since it creates comprehensive liability
for substantially all the potentially responsible parties. The
presumptions of liability may be rebutted by establishing an
affirmative defense.
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\178\ An additional type of liability, vicarious liability, is
also imposed on branded refiners under these fuels programs.
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To clarify the inclusive nature of these presumptive liability
schemes, today's proposed rule would explicitly include causing another
person to commit a prohibited act and causing the presence of non-
conforming diesel fuel (or kerosene or other additives for motor
vehicle use) to be in the distribution system as prohibitions. This is
consistent with the provisions and implementation of other fuels
programs.
Today's proposed rule, therefore, provides that most parties
involved in the chain of distribution would be subject to a presumption
of liability for actions prohibited, including causing non-conforming
diesel fuel to be in the distribution system and causing violations by
other parties. Like the other fuels regulations, a refiner also would
be subject to a presumption of vicarious liability for violations by
any downstream facility that displays the refiner's brand name, based
on the refiner's ability to exercise control at these facilities.
Carriers, however, would be liable only for violations arising from
product under their control or custody, and not for causing non-
conforming diesel fuel to be in the distribution system, except where
specific evidence of causation exists.

b. Affirmative Defenses for Liable Parties

The proposal includes affirmative defenses for each party that is
deemed liable for a violation, and all presumptions of liability are
refutable. The proposed defenses are similar to the defenses available
to parties for violations of the RFG regulations. We believe that these
defense elements set forth reasonably attainable criteria to rebut a
presumption of liability. The defenses include a demonstration that:
(1) The party did not cause the violation; (2) the party has PTDs
indicating that the fuel was in compliance at its facility; and (3)
except for retailers and wholesale purchaser-consumers, the party
conducted a quality assurance program. For parties other than tank
truck carriers, the quality assurance program would be required to
include periodic sampling and testing of the diesel fuel. For tank
truck carriers, the quality assurance program would not need to include
periodic sampling and testing, but in lieu of sampling and testing, the
carrier would be required to demonstrate evidence of an oversight
program for monitoring compliance, such as appropriate guidance to
drivers on compliance with applicable requirements and the periodic
review of records concerning diesel fuel quality and delivery.
As in the other fuels regulations, branded refiners would be
subject to more stringent standards for establishing a defense because
of the control such refiners have over branded downstream parties.
Under today's rule, in addition to the other presumptive liability
defense elements, branded refiners would be required to show that the
violation was caused by an action by another person in violation of
law, an action by another person in violation of a contractual
agreement with the refiner, or the action of a distributor not subject
to a contract with the refiner but engaged by the refiner for the
transportation of the diesel fuel.
Based on experience with other fuels programs, we believe that a
presumptive liability approach would increase the likelihood of
identifying persons who cause violations of the sulfur standards. We
normally do not have the information necessary to establish the cause
of a violation found at a facility downstream of the refiner or
importer. We believe that those persons who actually handle the fuel
are in the best position to identify the cause of the violation, and
that a refutable presumption of liability would provide an incentive
for parties to be forthcoming with information regarding the cause of
the violation. In addition to identifying the party that caused the
violation, providing evidence to rebut a presumption of liability would
serve to establish a defense for the parties who are not responsible.
Presumptive liability is familiar to both industry and to EPA, and we
believe that this approach would make the most efficient use of EPA's
enforcement resources. For these reasons, we are proposing a liability
scheme for the diesel fuel sulfur program based on a presumption of
liability. We request comment on the proposed liability provisions.

c. Penalties for Violations

Section 211(d)(1) of the CAA provides for penalties for violations
of the fuels regulations.\179\ Today's rule proposes penalty provisions
that would apply this CAA penalty provision to the diesel fuel sulfur
rule. The proposal would subject any person who violates any
requirement or prohibition of the diesel fuel sulfur rule to a civil
penalty of up

[[Page 35534]]

to $27,500 for every day of each such violation and the amount of
economic benefit or savings resulting from the violation. A violation
of a sulfur cap standard would constitute a separate day of violation
for each day the diesel fuel giving rise to the violation remains in
the diesel fuel distribution system. The length of time the diesel fuel
in question remains in the distribution system would be deemed to be
twenty-five days unless there is evidence that the diesel fuel remained
in the diesel fuel distribution system for fewer than or more than
twenty-five days. The penalty provisions proposed in today's rule are
similar to the penalty provisions for violations of the RFG regulations
and the Tier 2 gasoline sulfur rule. EPA requests comment on these
provisions.
---------------------------------------------------------------------------

\179\ Section 211(d)(1) reads, in pertinent part: ``(d)(1) Civil
Penalties.--Any person who violates . . the regulations prescribed
under subsection (c) . . of this section . . shall be liable to the
United States for a civil penalty of not more than the sum of
$25,000 for every day of such violation and the amount of economic
benefit or saving resulting from the violation. . . . Any violation
with respect to a regulation prescribed under subsection (c). . . of
this section which establishes a regulatory standard based upon a
multi-day averaging period shall constitute a separate day of
violation for each and every day in the averaging period. . . . ''
Pursuant to the Debt Collection Improvement Act of 1996 (31 U.S.C.
3701 note), the maximum penalty amount prescribed in section
211(d)(1) of the CAA was increased to $27,500. (See 40 CFR part 19.)
---------------------------------------------------------------------------

9. How Would Compliance with the Diesel Sulfur Standards Be Determined?

We have often used a variety of evidence to establish non-
compliance with the requirements imposed under our current fuels
regulations. Test results of the content of diesel fuel or gasoline
have been used to establish violations, both in situations where the
sample has been taken from the facility at which the violation
occurred, and where the sample has been obtained from other parties'
facilities when such test results have had probative value of the
fuel's characteristics at points upstream or downstream. The Agency has
also commonly used documentary evidence to establish non-compliance or
a party's liability for non-compliance. Typical documentary evidence
has included PTDs identifying the fuel as inappropriate for the
facility it is being delivered to, or identifying parties having
connection with the non-complying fuel.
We propose that compliance with the sulfur standards would be
determined based on the sulfur level of the diesel fuel, as measured
using the regulatory testing method. We further propose that any
evidence from any source or location could be used to establish the
diesel fuel sulfur level, provided that such evidence is relevant to
whether the sulfur level would have been in compliance if the
regulatory sampling and testing methodology had been correctly
performed.
Compliance with the standard would be determined using the
specified sampling and test methodologies. While other information
could be used, including test results using different test methods,
such other information may only be used if it is relevant to
determining whether the sulfur level would meet the standard had
compliance been properly measured using the specified test method. The
proposal would establish the regulatory test method as the benchmark
against which other evidence is measured. EPA intends to use the
regulatory test method for enforcement testing purposes.
Today's proposal is consistent with the approach adopted in the
Tier 2 gasoline sulfur rule (65 FR 6698, February 10, 2000). EPA
intends to undertake rulemaking in the near future to revise the
current fuels regulations to include the same language for the use of
other evidence as is proposed today. We seek comment on this approach.
The proposed rule would also clarify that any probative evidence
obtained from any source or location may be used to establish non-
compliance with requirements other than the sulfur standard, such as
recordkeeping requirements, as well as to establish which parties have
facility control or some other basis for liability for sulfur rule
noncompliance. Since proof of these elements is not predicated on
establishing sulfur levels, whether or not regulatory test methods are
used is not significant. EPA is seeking comment on this approach for
monitoring and determining compliance with the applicable requirements.
To ensure the effectiveness and the ability to adequately enforce
the sulfur standards, it is reasonable for EPA to consider evidence
other than actual test results using the regulatory test method, where
such evidence can be related to the test results. As described above,
test results using the regulatory test method are often not available.
In such circumstances, it is reasonable to consider other evidence of
compliance, such as test results using other methods or commercial
documents, if such evidence can be shown to be relevant to determining
whether the diesel fuel would meet the standard if tested using the
regulatory methods. The proposal would only permit the use of other
evidence that is relevant to such a determination, and is therefore
reasonably limited to allow for effective enforcement, without creating
uncertainty about compliance.

B. Lubricity

We strongly encourage, but do not believe it necessary to require,
fuel producers and distributors to voluntarily monitor and provide
diesel fuel with lubricity characteristics at least as good as those of
current fuel. We believe this voluntary action is reasonable and has a
high likelihood of success, because the issues surrounding the impact
of sulfur reduction on lubricity are well established. Refiners and
distributors have an incentive to supply fuel products that will not
damage or create problems with consumer equipment. For a further
discussion of diesel fuel lubricity, and why we believe a voluntary
approach will be effective, please refer to the earlier discussion in
section IV.D.6. We request comment on this approach, on whether or not
a regulatory requirement is needed, and on whether there are concerns
unique to the military.

C. Would States Be Preempted from Adopting Their Own Sulfur Control
Programs for Highway Diesel Fuel?

When we adopt federal fuel standards, states are preempted from
adopting state-level controls with respect to the same fuel
characteristics or components. Section 211(c)(4)(A) of the CAA
prohibits states from prescribing or attempting to enforce controls or
prohibitions respecting any fuel characteristic or component if EPA has
prescribed a control or prohibition applicable to such fuel
characteristic or component under section 211(c)(1) of the Act. This
preemption applies to all states except California, as explained in
section 211(c)(4)(B) of the Act. For states other than California, the
Act provides two mechanisms for avoiding preemption. First, section
211(c)(4)(A)(ii) creates an exception to preemption for a state
prohibition or control that is identical to a prohibition or control
adopted by EPA. Second, a state may seek EPA approval of a SIP revision
containing a fuel control measure, as described in section 211(c)(4)(C)
of the Act. EPA may approve such a SIP revision, and thereby ``waive''
preemption, only if it finds the state control or prohibition ``is
necessary to achieve the national primary or secondary ambient air
quality standard which the plan implements.''
When we adopted the current diesel fuel sulfur standards pursuant
to our authority under section 211(c)(1) of the Act in 1990, States
were preempted from also doing so under the provisions of section
211(c)(4)(A). The diesel sulfur standards proposed today merely modify
the existing standards and as a result do not initiate any new
preemption of State authority. The provisions of this proposal would
merely continue the already existing State preemption provisions with
respect to highway diesel fuel sulfur.

D. Refinery Air Permitting

Prior to making diesel desulfurization changes, some refineries
could be required to obtain a preconstruction

[[Page 35535]]

permit, under the New Source Review (NSR) program, from the applicable
state/local air pollution control agency.\180\ We believe that today's
proposal provides sufficient lead time for refiners to obtain any
necessary NSR permits well in advance of the proposed compliance date.
For the recently promulgated gasoline sulfur control program, refiners
had expressed concerns that permit delays might impede their ability to
meet compliance dates. EPA committed to undertake several actions to
minimize the possibility of any delays for refineries obtaining major
NSR permits for gasoline desulfurization projects. These actions
include providing federal guidance on emission control technologies and
the appropriate use of motor vehicle emission reductions (resulting
from the use of low sulfur fuel), where available, as emission offsets,
as well as forming EPA permit teams to assist states in quickly
resolving issues, where needed. These three items are discussed in more
detail in the Tier 2 final rule and interested parties should refer to
that discussion for additional details regarding permitting
considerations in the gasoline sulfur program (see 65 FR 6773, Feb. 10,
2000).
---------------------------------------------------------------------------

\180\ Hydrotreating diesel fuel involves the use of process
heaters, which have the potential to emit pollutants associated with
combustion, such as NO_X, PM, CO and SO2. In addition,
reconfiguring refinery processes to add desulfurization equipment
could increase fugitive VOC emissions. The emissions increases
associated with diesel desulfurization will vary widely from
refinery to refinery, depending on many source-specific factors,
such as crude oil supply, refinery configuration, type of
desulfurization technology, amount of diesel fuel produced, and type
of fuel used to fire the process heaters.
---------------------------------------------------------------------------

However, given that the proposed diesel sulfur program would
provide several more years of lead time than was provided under the
gasoline sulfur program, refiners should have ample time to obtain any
necessary preconstruction permits. As we learned in finalizing the
gasoline sulfur program, state/local permitting agencies are prepared
to process refinery permits within the needed time frames, so long as
refiners begin discussing potential permit issues with them early in
the process and submit their permit applications in a timely manner.
EPA believes that this will be the case for diesel fuel. We request
comment on the interaction of this proposed rule and the permitting
process and whether the permitting approaches discussed in the Tier 2
final rule should be continued, and if necessary updated, to assist
refineries in obtaining any necessary permits for refinery diesel
desulfurization changes.

E. Provisions for Qualifying Refiners

As explained in the Regulatory Flexibility Analysis discussion in
section XI.B of this document, we have considered the impacts of these
proposed regulations on small businesses. As part of this process, we
convened a Small Business Advocacy Review Panel (Panel) for this
proposed rulemaking, as required under the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA). The Panel was charged with
reporting on the comments of small business representatives regarding
the likely implications of possible control programs, and to make
findings on a number of issues, including:
A description and estimate of the number of small entities
to which the proposed rule would apply;
A description of the projected reporting, recordkeeping,
and other compliance requirements of the proposed rule;
An identification of other relevant federal rules that may
duplicate, overlap, or conflict with the proposed rule; and
A description of any significant alternatives to the
proposed rule that accomplish the objectives of the proposal and that
may minimize any significant economic impact of the proposed rule on
small entities.
The Panel's final report is available in the docket. In summary,
the Panel concluded that small refiners would likely be directly
affected by the proposed program.
In addition, the Panel concluded that small diesel distributors and
retailers also would likely be directly affected by the fuel program's
compliance requirements, but that under the approach we are proposing
today these requirements would pose minimal burden. Therefore, the
Panel did not recommend any regulatory relief for this group of small
businesses under the program proposed today.
We understand that the proposed low sulfur standards will require
significant economic investment by the refining industry. We also
recognize that refineries owned by small businesses could experience
more difficulty in complying with the proposed standards on time
because, as a group, they have less ability to raise capital necessary
for desulfurization investments, face proportionately higher costs due
to economies of scale, and may be less successful in competing for
limited construction and engineering resources. Some of the small
refiners with whom we and the Panel met indicated their belief that,
because of the extreme level of economic hardship their businesses
would face in meeting the new standards, their businesses might close
without additional time to comply or certain flexibility alternatives.
The Panel recommended that EPA seek comment on various flexibilities
that potentially could alleviate the burden on small refiners.
Upon evaluating the potential impacts of our proposed diesel sulfur
requirements on small refiners and careful review of the Panel's
recommendations, we are seeking comment on three approaches that could
provide flexibility for small refiners. We believe that these
approaches could provide meaningful flexibility for small refiners in
meeting the proposed standards, although we do have concerns that
certain approaches, to varying extents, may compromise the
environmental benefits of the program (as discussed below), while still
ensuring that the vast majority of the program is implemented as
expeditiously as practical in order to achieve the air quality benefits
sooner. Therefore, we invite comment on the appropriateness of any or
all of these approaches in light of the environmental goals, the
relative usefulness in allowing additional time and flexibility for
small refiners to comply with the proposed low sulfur targets, and
information and ideas on appropriate implementation mechanisms. These
approaches are summarized in subsection 1 below.
Elsewhere, in section VI, we seek comment on various alternatives
for phasing in the fuel program. Some small refiners have commented
that some form of a phase-in approach could potentially mitigate the
hardship they would experience under the proposed fuel standards. (See
the discussion in section VI for a discussion of the potential impacts
of a phase-in approach on entities in the distribution system).
In addition to considering the following flexibility approaches for
small refiners, we are interested in exploring appropriate flexibility
options for farmer cooperatives. There are currently four refiner co-
ops, yet only one meets SBA's definition of a small business. The
farmer cooperatives have expressed concern that they have the same
difficulty as small refiners in obtaining access to capital for
desulfurization investments. Farmers are both the customer and the
member owner of their cooperatives. Because cooperatives do not have an
investor/stockholder form of ownership, they are

[[Page 35536]]

not able to access equity markets that provide capital to larger
refiners. The added costs of financing projects through traditional
loans is eventually borne by farmers. The refiner co-ops have also
expressed concern that the highway diesel sulfur program could result
in higher fuel prices for farmers, and could potentially reduce
refining capacity and diesel fuel supply in rural America. To help
address these concerns, we are requesting comment on the following
flexibility approaches for farmer cooperatives as well. We also seek
comment on other appropriate flexibility approaches for farmer
cooperatives that may have merit.
1. Allow Small Refiners to Continue Selling 500 ppm Highway Diesel
First, we are seeking comment on an option for small refiner
flexibility that would allow small refiners to continue selling their
current 500 ppm highway diesel, provided there are adequate safeguards
to prevent contamination and misfueling. This option would effectively
delay the ultra-low sulfur compliance date for small refiners, and
allow them to continue selling their current fuel to the highway diesel
market. Under this approach, retailers would not have an availability
requirement; rather, retailers would be free to choose to sell only 500
ppm fuel (from small refiners), only ultra-low sulfur fuel, or both.
During the Panel process, small refiners expressed varying views on
this flexibility approach. At least one small refiner supported this
option, while others expressed the concern that they would not be able
to find markets for the 500 ppm fuel once large refiners begin
producing exclusively ultra-low sulfur highway diesel (i.e., as soon as
the rule were implemented). Those small refiners doubtful of continued
500 ppm markets think it is unlikely that retailers would either
continue to sell only 500 ppm diesel instead of ultra-low sulfur, or
that retailers would make the investments to market both grades. Their
key assumption is that there would be no price differential between the
ultra-low sulfur fuel and the 500 ppm fuel and, thus, no incentive for
marketers to want the ``old'' fuel. Small refiners noted that, although
ultra-low sulfur fuel would be more costly to produce than the current
grade, vertically integrated refiners with control over the marketing
of their refinery products would have incentives to price below cost in
order to eliminate the potential for niche markets that would be of
value to any small refiners seeking to avail themselves of this
flexibility option. Small diesel distributors and retailers commented
that marketers also don't anticipate a price differential, but
acknowledged that a market for small refiner's 500 ppm likely would
last as long as there were a price differential. Nevertheless, most
small refiners with whom we and the Panel met strongly supported this
option, largely because it potentially could benefit at least a few
small refiners. At the same time, they believed it should not be the
only flexibility option provided for small refiners. We believe that
seeking public comment on this option will give all small refiners an
opportunity to continue exploring the extent of potential markets for
the 500 ppm fuel, and thus, the potential viability of this flexibility
option.
We also request comment on an appropriate duration for this option.
We seek comment on the need for, and appropriateness of, an unlimited
exemption, as well as whether such an exemption should be limited to a
specific timeframe (e.g., two years, ten years, etc.). We note that by
limiting this flexibility to two years, for example, during which time
the new vehicle fleet would still be relatively small, the potential
for misfueling would be minimized. We also question how long this
flexibility option may remain viable, since many small refiners
commented during the Panel process that they do not expect markets for
the 500 ppm fuel to remain after larger refiners begin producing
exclusively ultra-low sulfur fuel. Nevertheless, we request comment on
the need for, and potential impacts of, a longer exemption. A longer
duration for this flexibility option would give participating refiners
more time to stagger their diesel desulfurization investments. The
number of vehicles potentially affected by misfueling or contamination
would still be fairly limited under this approach, since small refiners
produce only approximately four percent of all the highway diesel fuel
produced in the U.S. Moreover, the potential for misfueling would be
further limited because most small refiners distribute highway diesel
in a fairly local area. (Some small refiners, however, distribute a
portion of their diesel fuel outside their local area via pipeline or
barge. See further discussion below about the potential need to
prohibit pipeline/barge shipments of 500 ppm highway diesel under this
option). An unlimited exemption would allow the market to determine the
duration of flexibility provided to small refiners. There would be
diminishing returns to small refiners from such an option over time, as
a growing portion of the vehicle miles traveled would be from vehicles
with emission control devices requiring ultra-low sulfur, and so small
refiners would eventually switch over to producing low sulfur highway
diesel fuel.
To ensure that this flexibility option would not compromise the
expected environmental benefits of today's proposal, there would have
to be certain safeguards with refiners as well as downstream parties to
prevent contamination of the ultra-low sulfur fuel, and to prevent
misfueling of new vehicles. We seek comment on how best to prevent
misfueling and contamination of the ultra-low sulfur fuel under this
approach for small refiner flexibility. Specifically, we request
comment on the following measures to prevent misfueling and
contamination:
Small refiners could make an initial demonstration to EPA
of how they would ensure the fuel remains segregated through the
distribution system to its end use.
Small refiners could be prohibited from distributing 500
ppm highway diesel via pipeline or barge. As the fuel is piped or
barged to locations further from the refinery, it would likely become
more difficult to ensure proper segregation and labeling. We have
learned through the Panel process that most small refiners distribute
highway diesel in a fairly local area; it appears that only a few small
refiners distribute highway diesel via pipeline or barge. All small
refiners (even those that distribute highway diesel via pipeline or
barge) also distribute fuel to the local area, which should provide
adequate potential markets for the 500 ppm fuel. This provision may be
less necessary in the context of a broader program, such as the
approaches discussed in section VI.A.
There could be some general requirements on any entities
carrying the fuel downstream of the refiner, such as a condition to
keep the fuel segregated and maintain records (e.g., product transfer
documents).
Retailers who choose to sell the 500 ppm fuel could be
required to label pumps, clearly indicating that the fuel is higher
sulfur and should not be used in new (e.g., 2007 model year or later)
diesel vehicles.
We also seek comment on how to best prevent small refiners from
increasing the refinery's production capacity (selling 500 ppm highway
diesel under such a program) without also increasing the refinery's
desulfurization capacity. Specifically, we request comment on whether
it would be appropriate and necessary to limit the volume of 500

[[Page 35537]]

ppm highway fuel produced by a refinery owned by a small refiner to the
lesser of: (1) 105 percent of the highway volume it produced on average
in 1998 and 1999; or (2) the volume of highway diesel fuel produced
from crude oil on average in the calendar year. Such limits to a small
refiner's 500 ppm production expansion could also serve to limit the
potential for fuel shortages of the ``new'' fuel in local areas where
small refiners have or will gain significant market share as a result
being allowed to continue producing and selling 500 ppm highway diesel
fuel. This issue is discussed further below.
We believe that safeguards such as these would add minimal burden
on small refiners or any party choosing to distribute or sell small
refiner highway diesel, but would be critical to preventing misfueling
and potential damage to new vehicles--and thus critical to preserving
the environmental benefits of the program. These types of safeguards
are typical of EPA fuel programs where more than one fuel is introduced
into commerce.
We also would need to ensure that this type of flexibility would
not result in lack of availability of low sulfur highway diesel in
markets served primarily by small refiners. We seek comment on whether
there is a potential for lack of availability of the low sulfur fuel
under this approach and, if so, how to prevent this.
Finally, we seek comment on the appropriate definition of a small
refiner under such a program. If such a flexibility option is
promulgated under the final rule, EPA would envision considering a
refiner as a small refiner if both of the following criteria are met:
No more than 1500 employees corporate-wide, based on the
average number of employees for all pay periods from January 1, 1999 to
January 1, 2000.
A corporate crude capacity less than or equal to 155,000
barrels per calendar day (bpcd) for 1999.
In determining the total number of employees and crude capacity, a
refiner would include the employees and crude capacity of any
subsidiary companies, any parent company and subsidiaries of the parent
company, and any joint venture partners. This definition of small
refiner mirrors the one recently promulgated under the Tier 2/gasoline
sulfur program, except that the time period used to determine the
employee number and crude capacity criteria has been updated to reflect
the most recent calendar year. This is consistent with the Small
Business Administration's regulations, which specify that, where the
number of employees is used as a size standard, the size determination
is based on the average number of employees for all pay periods during
the preceding 12 months (13 CFR 121.106). However, because the gasoline
sulfur standards and the proposed diesel sulfur standards would impact
small refiners in relatively the same timeframes, we believe it is
reasonable to consider any small refiner approved by EPA as meeting the
small refiner definition under the gasoline sulfur program (40 CFR
80.235) as a small refiner under the highway diesel sulfur rule as
well. We request comment on this provision.
2. Temporary Waivers Based on Extreme Hardship Circumstances
We are also seeking comment on a case-by-case approach to
flexibility that would provide a process for all domestic and foreign
refiners, including small refiners, to seek case-by-case approval of
applications for temporary waivers to the diesel sulfur standards,
based on a demonstration of extreme hardship circumstances. Small
refiners have expressed their belief that there may be no ``one size
fits all'' approach to flexibility--given the wide variety of refinery
circumstances and configurations. Although this option was first raised
in the context of small refiner flexibility during the Panel process,
we believe that it could be extended to any qualifying refiner meeting
the criteria described below. We recognize that there may be case-by-
case flexibilities that are feasible, environmentally neutral, and
warranted to meet the unique needs of an individual refiner, but that,
if applied across the board, might jeopardize the environmental
benefits of the program. This provision would further our overall
environmental goals of achieving low sulfur highway diesel fuel as soon
as possible. By providing short-term relief to those refiners that need
additional time because they face hardship circumstances, we can adopt
a program that reduces diesel sulfur beginning in 2006 for the majority
of the industry that can comply by then. We envision that this option
would be modeled after a similar provision in the recently-promulgated
gasoline sulfur program. This case-by-case provision could be in
addition to or in place of the small refiner option discussed above.
We understand that the ultra-low sulfur standards for highway
diesel fuel will require significant economic investments by the
refining industry. We recognize that refineries owned by small
businesses could experience more difficulty in complying with the
standards on time because, as a group, they have less ability to raise
capital necessary for desulfurization investments, face proportionately
higher costs due to economies of scale, and may be less successful in
competing for limited construction and engineering resources. However,
because the refining industry encompasses a wide variety of individual
circumstances, it is possible that other refiners also may face
particular difficulty in complying with the proposed sulfur standards
on time. For example, as discussed above the farmer cooperatives have
expressed concern that they would face considerable difficulty in
obtaining access to capital for desulfurization investments. Because
farmer cooperatives do not have an investor/stockholder form of
ownership, they are not able to access equity markets that provide
capital to larger refiners; thus, the added costs of financing projects
through traditional loans is eventually borne by farmers.This option
would allow any refiner to request additional flexibility based on a
showing of unusual circumstances that result in extreme hardship and
significantly affect the refiner's ability to comply by the applicable
date, despite its best efforts. However, we would not intend for this
waiver provision to encourage refiners to delay planning and
investments they would otherwise make in anticipation of receiving
relief from the applicable requirements.
An example of case-by-case flexibility under this approach might be
to allow a refiner to continue selling 500 ppm highway diesel fuel for
an extended time period, so long as that fuel were properly segregated
and labeled at pump stands (see the discussion of possible compliance
measures in section E.1. above).
To further preserve the environmental benefits of the program,
recognizing the constraints it places on any flexibility, we currently
believe that it would be necessary to segregate the fuel pool for any
highway diesel fuel sold under an approved hardship waiver.
Consequently, any additional compliance flexibilities would carry with
them certain safeguards for preventing contamination and misfueling. We
welcome comment on these compliance measures and any other
alternatives. These provisions would be analogous to those discussed
above under section E.1. Further, as part of such a flexibility, we
would need to ensure that there was not a significant potential for
lack of availability of the low sulfur fuel for those refiners that are
the primary supplier of highway diesel fuel in a given area (as
discussed in section E.1 above). We seek comment on whether there is a
significant potential

[[Page 35538]]

for lack of availability of the low sulfur fuel under this approach
and, if so, how to prevent this situation.
During the Panel process, several small refiners that produce both
gasoline and highway diesel expressed concern about the difficulty in
obtaining financing for the significant capital costs of desulfurizing
both these fuels in relatively the same timeframes. Similar concerns
have been expressed by farmer cooperatives and other refiners. Small
refiners suggested that they might be able to desulfurize highway
diesel fuel under the schedule proposed today, if additional
flexibility could be provided in meeting the gasoline sulfur standards,
which would allow them to stagger their investments. We estimate that
approximately nine small refiners (owning 11 refineries) would be
subject to both the gasoline and highway diesel sulfur standards. As
another example of case-by-case flexibility under the hardship
approach, we request comment on whether and to what extent we should
consider additional flexibilities in meeting the gasoline sulfur
standards, for those refiners that produce both gasoline and highway
diesel fuel, and meet the highway diesel fuel standards on time. For
example, we invite comment on whether it would be necessary and
appropriate to take into consideration compliance with the diesel
sulfur rule as part of a small refiner's application demonstrating
significant economic hardship under the gasoline sulfur program's small
refiner hardship extension provision (40 CFR 80.260). In evaluating
applications for any case-by-case consideration of additional
flexibility under the gasoline sulfur program, we would fully consider
the environmental consequences of such an approach. For example, we
would consider such factors as the relative volumes of gasoline and
highway diesel fuel produced by the refiner, where these fuels are
sold, and the projected emission impacts of vehicles using the
refiner's gasoline and diesel fuels. If we were to consider such a
case-by-case approach to compliance under the gasoline and diesel
sulfur programs, we believe the gasoline sulfur program requirements
may have to be changed to allow for the consideration of appropriate
criteria related to compliance with the highway diesel sulfur rule. We
seek comment on how such an approach could be accommodated under the
gasoline sulfur program and the environmental implications of this
approach. We also seek comment on the criteria that should be
considered in granting gasoline hardship relief based on early diesel
compliance.
Small refiners have recommended that the Agency could provide some
flexibility by granting the hardship extension on an automatic, rather
than case by case basis, if they agree to meet the highway diesel
sulfur standards at the same time as the national program. They
commented that this approach would provide more certainty for their
planning purposes in determining how to comply with the requirements of
both programs. The gasoline sulfur program provides that small refiners
can apply for and receive an extension of their interim standards, if
we determine that the small refiner has made the best efforts possible
to achieve compliance with the national standards by January 1, 2008,
but has been unsuccessful for unanticipated reasons beyond its control.
We would consider granting the hardship extension for a time period not
to extend beyond calendar year 2009, based on several factors,
including the small refiner's compliance plan and demonstration of
progress toward producing gasoline meeting the national sulfur
standards by the end of 2009. (See 40 CFR 80.255 and 80.260). We have
concerns about making the small refiner gasoline hardship extension
``automatic'', as this approach could undermine some of the
environmental benefits of the Tier 2/gasoline sulfur program, and is
not consistent with the purpose of the hardship extension. We would
need to consider the environmental impacts of such an extension, by
evaluating, for example, the small refiners' relative production of
highway diesel fuel as compared to gasoline and the air quality
concerns in the locations where both products are sold. We believe it
would be more environmentally protective to make this determination on
a case-by-case basis. Nevertheless, we seek comment on the approach of
granting a small refiner an automatic hardship extension under the
gasoline sulfur program if they demonstrate that they will comply on
time with the national program for highway diesel fuel. We also seek
comment on whether this approach should be applied on a case-by-case,
rather than automatic, basis.
As another example of case-by-case flexibility under this approach,
we request comment on whether it would be appropriate, as part of a
review of a refiner's application for hardship relief under the diesel
sulfur program, to consider granting a delay of diesel sulfur standards
for those refiners that agree to meet the gasoline sulfur standards
under a schedule more accelerated than that required under the gasoline
sulfur program. Any consideration of such delays would require full
consideration of the environmental implications of such a delay, as
well as of other relevant factors.
There are several factors we would consider in evaluating an
application for a hardship waiver. These factors could include refinery
configuration, severe economic limitations, and other factors that
prevent compliance in the lead time provided. Applications for a waiver
would need to include information that would allow us to evaluate all
appropriate factors. We would consider the total crude capacity of the
refinery and its parent corporation, whether the refinery configuration
or operation is unique or atypical, how much of a refinery's diesel is
produced using an FCC unit, its hydrotreating capacity relative to its
total crude capacity, highway diesel production relative to other
refinery products, and other relevant factors. A refiner also may face
severe economic limitations that result in a demonstrated inability to
raise the capital necessary to make desulfurization investments by the
compliance date, which could be shown by an unfavorable bond rating,
inadequate resources of the refiner and its parent and/or subsidiaries,
or other relevant factors. Finally, we would consider where the highway
diesel would be sold in evaluating the environmental impacts of
granting a waiver. We seek comment on these criteria for evaluating a
refiner's hardship application, and on whether there are other criteria
that should also be considered.
This hardship provision would be intended to address unusual
circumstances, such as unique and atypical refinery operations or a
demonstrated inability to raise capital. These kinds of circumstances
should be apparent soon after the final rule is promulgated, so
refiners seeking additional time under this provision should be able to
apply for relief within a relatively short timeframe (e.g., nine months
to one year) after promulgation of the final rule. We request comment
on an appropriate timeframe for refiners to submit hardship
applications to EPA. A refiner seeking a waiver would need to show that
unusual circumstances exist that impose extreme hardship and
significantly affect its ability to meet the standards on time, and
that it has made best efforts to comply with the standards. Applicants
for a hardship waiver also would need to submit a plan demonstrating
how the standards would be achieved as expeditiously as possible. The
plan would need to

[[Page 35539]]

include a timetable for obtaining the necessary capital, contracting
for engineering and construction resources, and obtaining permits. We
request comment on the information that should be contained in a
hardship application, as well as the demonstrations that refiners
should be required to make in such applications. Once all applications
are received, we would consider the appropriate process to follow in
reviewing and acting on applications, including whether to conduct a
notice and comment decision-making process. We would review and act on
applications, and, if a waiver were granted, would specify a time
period for the waiver.
During the SBREFA Panel process, small refiners commented that they
need certainty as to their regulatory requirements, and any
flexibilities, well in advance of compliance dates so that they can
seek financing. Therefore, we also seek comment on how such a hardship
provision could be administered in a manner that provides the most
certainty to small refiners as to any potential hardship relief, well
in advance of the compliance deadline. Specifically, we request comment
on an appropriate timeframe within which the Agency should respond to
hardship applications (for example, one year from the date of receipt).
Because of the significant environmental benefits of lowering
sulfur in highway diesel fuel, we would administer any hardship
provision in a manner that continues to ensure the environmental
benefits of the regulation. To limit the potential environmental impact
of this hardship provision, we would reserve the discretion to deny
applications where we find that granting a waiver would result in an
unacceptable environmental impact. While any hardship determination
would be made on a case-by-case basis, we would not anticipate granting
waivers that apply to more than a minimal amount of the total national
pool of highway diesel fuel, or to more than a minimal percentage of
the highway diesel supply in an area with significant air quality
problems. The level of this minimal amount of fuel would be considered
in light of any additional flexibility options provided for refiners
and would be established in a way that maintains the environmental
goals of the program.
As a condition of any waiver granted, we would likely impose other
reasonable requirements, such as anti-backsliding requirements to
ensure no deterioration in the sulfur level of highway diesel fuel
produced, or limitations on the volume of highway diesel fuel produced
under the waiver (e.g., at or near current production levels). This
latter measure would prevent refiners from increasing the refinery's
production capacity without also increasing the desulfurization
capacity. Specifically, we would limit the volume of highway diesel
produced by a refinery covered by a hardship waiver to the lesser of:
(1) 105 percent of the highway volume it produced on average in 1998
and 1999; or (2) the volume of highway diesel fuel produced from crude
oil on average in the calendar year. We request comment on the need for
such a hardship provision and how it should be structured.
3. 50 ppm Sulfur Cap for Small Refiners
In section IV.B, we fully discuss the basis for the 15 ppm sulfur
standard proposed, based on the needs of diesel engine technology and
on the criteria mandated by the Clean Air Act, and we seek comment on
this level. In section III.F, we also discuss the level of sensitivity
these new emission control technologies have to sulfur in the fuel, and
potential consequences of the vehicles using fuel with a sulfur content
higher than that proposed.
During the Panel process, small refiners expressed strong concern
about their ability to meet a sulfur standard in the 5 to 40 ppm range
discussed. Several small refiners have commented that capital,
operating, and maintenance costs of meeting a 50 ppm cap are
significantly less than the costs of meeting more stringent standards.
Because small refiners produce relatively smaller volumes, their
capital (and other fixed) costs per barrel produced are significantly
higher than their larger competitors. They also cannot take advantage
of the significant economies of scale that exist in the refining
industry and may be less successful in competing for limited
construction and engineering resources. Small refiners have suggested
that a 50 ppm may afford them the flexibility to purchase sufficient
blendstocks on the market to blend with their production and still
comply with a 50 ppm cap. However, at the proposed 15 ppm standard this
flexibility may no longer exist. Nevertheless, they are still
interested in the Agency considering a cap for small refiners of 50
ppm. Therefore, we request comment on a 50 ppm cap for small refiners,
and on any underlying data and analyses that would be relevant to a
decision in the final rule on whether to incorporate a 50 ppm cap for
small refiners. For this approach to work, to keep from damaging the
vehicle exhaust emission control technologies and also maintain their
effectiveness (as discussed in section III.F.), small refiner's fuel
would somehow have to be blended downstream of the refinery to 15 ppm
(i.e., in the distribution system). However, we question whether small
refiners' 50 ppm fuel could simply be ``blended away'' with ultra-low
sulfur fuel in the distribution system (i.e., after the fuel leaves the
refiner's control). Information submitted by small refiners indicates
that most sell highway diesel fuel directly via the refinery rack, for
distribution to local truck stops, service stations, and fleet
customers. Only a few small refiners distribute highway diesel via
pipelines. Therefore, small refiners' highway diesel fuel indeed would
go directly into vehicles, and commonly would not be ``blended'' to a
significant extent with other refiners' fuel within the distribution
system (i.e., downstream of the refinery). Nevertheless, we believe it
is appropriate to seek comment on this approach, and welcome any data
and analyses that would influence a final decision about this approach.

IX. Standards and Fuel for Nonroad Diesel Engines

Although today's proposal covers only highway diesel engines and
highway diesel fuel, our potential plans for nonroad diesel engines--
and especially the sulfur content of nonroad diesel fuel--are clearly
related. For example, depending on whether and how nonroad diesel fuel
is regulated, factors including the costs, leadtime, environmental
impacts, and impacts on competitive relationships in the marketplace
associated with today's proposed program could be affected. We would
need to address these factors in any future regulatory action on
nonroad diesel fuel.
Because of these relationships, various stakeholders interested in
today's proposal have asked to also know the potential requirements
that could apply to nonroad diesel fuel. This section summarizes the
background of this issue and our current thinking about future
regulation of nonroad diesel engines and fuel.
After establishing an initial set of emission standards for nonroad
diesel engines in 1994, EPA proposed in 1997, and finalized in 1998, a
comprehensive program of emission standards for most diesel engines
designed for nonroad use.\181\ This program established
NMHC+NO_X and PM standards that are phasing in over the 1999-
2006 time frame, with engines of different

[[Page 35540]]

horsepower ranges coming into the program in different years. At the
same time, we set long-term (``Tier 3'') NMHC+NO_X
standards--but not PM standards--for medium and high horsepower
engines, to begin in 2006. Built into the 1998 final rule was a plan to
reassess the Tier 3 NMHC+NO_X standards and to establish PM
standards in the 2001 time frame. The 1998 rule also anticipated an EPA
reassessment of the Tier 2 NMHC+NO_X standards for the
smaller engines (less than 50 horsepower), which are to be phased in
beginning in 2004.
---------------------------------------------------------------------------

\181\ See the final rule, 63 FR 56968, October 23, 1998 for more
about the history of these regulations.
---------------------------------------------------------------------------

EPA did not include nonroad diesel fuel in the diesel fuel sulfur
restrictions established in 1993 for highway diesel fuel. We estimate
that the average sulfur content for nonroad diesel fuel is currently
around 3000 ppm, as compared to the cap for highway diesel fuel of 500
ppm.\182\
---------------------------------------------------------------------------

\182\ Information from recent national fuel surveys by the
National Institute for Petroleum and Energy Research (NIPER) and the
Alliance of Automobile Manufacturers.
---------------------------------------------------------------------------

We believe that any specific new requirements for nonroad diesel
fuel we might propose would need to be carefully considered in the
context of a proposal for further nonroad diesel engine emission
standards. This is because of the close interrelationship between fuels
and engines--the best emission control solutions may not come through
either fuel changes or engine improvements alone, but perhaps through
an appropriate balance between the two. This is especially significant
to the extent that manufacturers would need to address potential
challenges related to simultaneously meeting the standards that may be
proposed. Thus we need to address issues in both the fuel and engine
arenas together.
The many issues connected with any rulemaking for nonroad engines
and fuel warrant serious attention, and we believe it would be
premature today for us to attempt to propose resolutions to them. We
plan to initiate action in the future to formulate thoughtful proposals
covering both nonroad diesel fuel and engines.

X. Public Participation

Publication of this document opens a formal comment period on this
proposal. You may submit comments during the period indicated under
DATES above. We encourage everyone who has an interest in the program
described in this preamble and the associated rulemaking documents to
offer comment on all aspects of the action. Throughout this proposal
you will find requests for specific comment on various topics.
We consider and respond in the final rule to every comment we
receive before the end of the comment period. We give equal weight to
all comments regardless of whether they are submitted on paper,
electronically, or in person at a public hearing. The most useful
comments are generally those supported by appropriate and detailed
rationales, data, and analyses. We also encourage commenters who
disagree with the proposed program to suggest and analyze alternate
approaches to meeting the air quality goals of this proposed program.
We have previously received many comments from a range of
interested parties on our ANPRM and as part of the our outreach to
small entities (see section XI.B). These comments are found in the
docket, and information gathered from them is reflected in the
proposal.

A. Submitting Written and E-mail Comments

If you would like to submit comments in writing, please send them
to the contact listed in FOR FURTHER INFORMATION CONTACT above on or
before the end of the comment period. You can send your comments by e-
mail to the following address: diesel@epa.gov. It is usually best to
include your comments in the body of the email message rather than as
an attachment.
Commenters who wish to submit proprietary information for
consideration should clearly separate such information from other
comments. Such submissions should be clearly labeled as ``Confidential
Business Information'' and be sent to the contact person in FOR FURTHER
INFORMATION CONTACT (not to the public docket). This will help ensure
that proprietary information is not placed in the public docket. If a
commenter wants EPA to use a submission of confidential information as
part of the basis for the final rule, then a nonconfidential version of
the document that summarizes the key data or information must be sent
to the contact person for inclusion in the public docket.
We will disclose information covered by a claim of confidentiality
only to the extent allowed by the procedures set forth in 40 CFR part
2. If no claim of confidentiality accompanies a submission when we
receive it, we will make it available to the public without further
notice to the commenter.

B. Public Hearings

We will hold public hearings in New York City, NY, Chicago, IL,
Atlanta, GA, Los Angeles, CA, and Denver, CO. See ADDRESSES near the
beginning of this document for the locations of the hearings. If you
would like to present testimony at one or more of the public hearings,
we ask that you notify the contact person listed above ten days before
the date of the hearing at which you plan to testify. We also suggest
that you bring about fifty copies of the statement or material to be
presented for the EPA panel and audience. In addition, it is helpful if
the contact person receives a copy of the testimony or material before
the hearing. An overhead projector and a carousel slide projector will
be available.
The hearings will be conducted informally, and technical rules of
evidence will not apply. We will, however, prepare a written transcript
of each hearing. The official record of the hearings will be kept open
until the end of the comment period to allow submittal of supplementary
information. Each hearing will begin at 10:00 a.m. local time. In
general, we expect to organize the hearings in a panel format, with
representatives of several different perspectives on each panel. We
will reserve the last part of each hearing for any previously
unscheduled testimony. There will be a sign-in sheet, and we will hear
the testimony of anyone signed in by 6:30 p.m. local time.

XI. Administrative Requirements

A. Administrative Designation and Regulatory Analysis

Under Executive Order 12866 (58 FR 51735, Oct. 4, 1993), the Agency
is required to determine whether this regulatory action would be
``significant'' and therefore subject to review by the Office of
Management and Budget (OMB) and the requirements of the Executive
Order. The order defines a ``significant regulatory action'' as any
regulatory action that is likely to result in a rule that may:
Have an annual effect on the economy of $100 million or
more or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or,
Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.

[[Page 35541]]

Pursuant to the terms of Executive Order 12866, EPA has determined
that this proposal is a ``significant regulatory action'' because the
proposed engine standards, diesel fuel sulfur standards, and other
proposed regulatory provisions, if implemented, would have an annual
effect on the economy in excess of $100 million. Accordingly, a Draft
RIA has been prepared and is available in the docket for this
rulemaking. This action was submitted to the OMB for review as required
by Executive Order 12866. Written comments from OMB on today's action
and responses from EPA to OMB comments are in the public docket for
this rulemaking.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 601-612, was amended by
the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), Public Law 104-121, to ensure that concerns regarding small
entities are adequately considered during the development of new
regulations that affect them. In response to the provisions of this
statute, EPA has identified industries subject to this proposed rule
and has provided information to, and received comment from, small
entities and representatives of small entities in these industries. To
accompany today's proposal, an Initial Regulatory Flexibility Analysis
(IRFA) has been prepared by the Agency to evaluate the economic impacts
of today's proposal on small entities.\183\ The key elements of the
IRFA include:
---------------------------------------------------------------------------

\183\ The Initial RFA is contained in Chapter VII of the Draft
RIA.

--The number of affected small entities;
--The projected reporting, recordkeeping, and other compliance
requirements of the proposed rule, including the classes of small
entities that would be affected and the type of professional skills
necessary for preparation of the report or record;
--Other federal rules that may duplicate, overlap, or conflict with the
proposed rule; and,
--Any significant alternatives to the proposed rule that accomplish the
stated objectives of applicable statutes and that minimize significant
economic impacts of the proposed rule on small entities.

The Agency convened a Small Business Advocacy Review Panel (the
Panel) under section 609(b) of the Regulatory Flexibility Act as added
by SBREFA. The purpose of the Panel was to collect the advice and
recommendations of representatives of small entities that could be
directly affected by today's proposed rule and to report on those
comments and the Panel's findings as to issues related to the key
elements of the IRFA under section 603 of the Regulatory Flexibility
Act. The report of the Panel has been placed in the rulemaking
record.\184\ The IRFA can be found in the Draft RIA associated with
today's proposal.
---------------------------------------------------------------------------

\184\ Report of the Small Business Advocacy Review Panel on
Control of Air Pollution from New Motor Vehicles: Heavy-Duty Engine
Standards and Diesel Fuel Sulfur Control Requirements, March 24,
2000.
---------------------------------------------------------------------------

The contents of both today's proposal and the IRFA reflect the
recommendations in the Panel's report. We summarize our outreach to
small entities and our responses to the recommendations of the Panel
below. The Agency continues to be interested in the potential impacts
of the proposed rule on small entities and welcomes additional comments
during the rulemaking process on issues related to such impacts.
1. Potentially Affected Small Businesses
Today's proposed program, which would establish new emission
standards for heavy-duty engines and new standards for the sulfur
content of highway diesel fuel, would directly affect manufacturers of
heavy-duty engines and petroleum refiners that produce highway diesel
fuel, respectively. In addition, but to a lesser extent, the program
would directly affect diesel distributors and marketers.
We have not identified any manufacturers of heavy-duty engines that
meet SBA's definition of a small business. However, we have identified
several petroleum refiners that produce highway diesel fuel and meet
the SBA's definitions for a small business for the industry category.
According to the SBA's definition of a small business for a petroleum
refining company (Standard Industrial Classification (SIC) 2911), a
company must have 1500 or fewer employees to qualify as an SBA small
business. Of the approximately 158 refineries in the U.S. today, we
estimate that approximately 22 refiners (owning 26 refineries) have
1500 or fewer employees and produce highway diesel fuel. Two of these
refineries are currently shutdown, but have indicated that they expect
to reopen this year. We estimate that these 22 small refiners comprise
3.7 percent of nationwide crude capacity and produce approximately four
percent of highway diesel fuel.
EPA also has identified several thousand businesses in the diesel
distribution and marketing industry that meet SBA's definitions of
small business. More information about these industries is contained in
the IRFA. Under today's proposal, there are some, fairly minimal,
regulatory requirements on these parties downstream of the refineries
related to segregating the low sulfur highway diesel fuel throughout
the distribution system. However, these proposed compliance provisions
for downstream parties are fairly consistent with those in place today
for other fuel programs, including the current highway diesel fuel
program, and are not expected to impose significant new burdens on
small entities.
2. Small Business Advocacy Review Panel and the Evaluation of
Regulatory Alternatives
The Small Business Advocacy Review Panel was convened by EPA on
November 12, 1999. The Panel consisted of representatives of the Small
Business Administration (SBA), the Office of Management and Budget
(OMB) and EPA. During the development of today's proposal, EPA and the
Panel were in contact with representatives from the small businesses
that would be subject to the provisions in today's proposal. In
addition to verbal comments from industry noted by the Panel at
meetings and teleconferences, written comments were received from each
of the affected industry segments or their representatives. The Panel
report contains a summary of these comments, the Panel's
recommendations on options that could mitigate the adverse impacts on
small businesses. Today's proposal requests comment on the alternatives
and issues suggested by the Panel for implementing the fuel program.
The Panel considered a range of options and regulatory alternatives
for providing small businesses with flexibility in complying with new
sulfur standards for highway diesel fuel. As part of the process, the
Panel requested and received comment on several early ideas for
flexibility that were suggested by SERs and Panel members. Taking into
consideration the comments received on these ideas, as well as
additional business and technical information gathered about
potentially affected small entities, we summarize the Panel's
recommendations below.
The Panel recommended that EPA seek comment on an option that would
provide a process for refiners to seek case-by-case approval of
applications for temporary waivers to the diesel sulfur standards,
based on a demonstration of extreme hardship circumstances. Small
refiners commented to the Panel that there is no ``one size fits all''
approach to flexibility--given the wide variety of refinery
circumstances and

[[Page 35542]]

configurations. Thus, the Panel believed that it would be appropriate
for EPA to consider a case-by-case approach to flexibility. The Panel
further recognized that there may be case-by-case flexibilities that
are feasible, environmentally neutral, and warranted to meet the unique
needs of an individual refiner, but that, if applied across the board,
might jeopardize the environmental benefits of the program. The Panel
envisioned that this option would be modeled after a similar provision
in the recently-promulgated gasoline sulfur program. This option would
allow domestic and foreign refiners, including small refiners, to
request additional flexibility based on a showing of unusual
circumstances that result in extreme hardship and significantly affect
the ability to comply by the applicable date, despite their best
efforts.
In addition, the Panel recommended that EPA seek comment on two
options for small refiner flexibility. First, the Panel recommended
that EPA seek comment on a 50 ppm cap for small refiners, as well as
any data or underlying analyses that could support such a decision.
Second, the Panel recommended that EPA seek comment on an option that
would allow small refiners to continue selling their current 500 ppm
highway diesel, provided there are adequate safeguards to prevent
contamination and misfueling. The Panel further recommended that EPA
request comment on an appropriate duration for this option. This option
would effectively delay the low sulfur compliance date for small
refiners, and allow them to continue selling their current fuel to the
highway diesel market. To ensure the environmental benefits of the rule
were achieved while implementing this flexibility option, there would
have to be certain safeguards with refiners as well as downstream
parties to prevent contamination of the ultra-low sulfur fuel, and to
prevent misfueling of new vehicles.
The Panel also discussed the merits of phasing in the fuel program,
and alternatives that could potentially limit the burden of such a
program on small refiners and distributors.
The Panel's recommendations are discussed in detail in the Panel
Report, contained in the docket. In addition, EPA's request for comment
on these options is contained in section VIII.E of this preamble.
The Initial Regulatory Flexibility Analysis evaluates the financial
impacts of the proposed heavy-duty engine standards and fuel controls
on small entities. EPA believes that the regulatory alternatives we
seek comment on in this proposal could provide substantial relief to
qualifying small businesses from the potential adverse economic impacts
of complying with today's proposed rule.

C. Paperwork Reduction Act

The information collection requirements (ICR) for this proposed
rule will be submitted for approval to OMB under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. The Agency may not conduct or
sponsor an information collection, and a person is not required to
respond to a request for information, unless the information collection
request displays a currently valid OMB control number. The OMB control
numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR
chapter 15.
The information collection requirements associated with today's
proposed rule pertain to the proposed requirements for diesel fuel
sulfur content. A draft information collection request document
entitled, ``Draft Information Collection Request--Recordkeeping
Requirements for the Fuel Quality Regulations for Diesel Fuel Sold in
2006 and Later Years' has been prepared and is available from the Air
Docket at the location indicated in ADDRESSES section or from the
person(s) listed in FOR FURTHER INFORMATION CONTACT section. We request
comments on the costs associated with the regulatory language as
proposed and with regard to other specific approaches outlined in this
notice that may affect information collection burdens.
The Paperwork Reduction Act stipulates that ICR documents estimate
the burden of activities that would be required of regulated parties
within a three year time period. Consequently, the draft ICR document
that accompanies today's proposed rule provides estimates for the
activities that would be required under the first three years of the
proposed program. Many of the reporting and recordkeeping requirements
for refiners and importers regarding the sulfur content of diesel fuel
on which the proposed rule would rely currently exist under EPA's 500
ppm highway diesel fuel and anti-dumping programs.\185\ The ICR for the
500 ppm program covered start up costs associated with reporting diesel
fuel sulfur content under the 500 ppm program. Consequently, much of
the cost of the information collection requirements under the proposed
diesel sulfur control program has already been accounted for under the
500 ppm program.
---------------------------------------------------------------------------

\185\ ``Regulations of Fuel and Fuel Additives; Fuel Quality
Regulations for Highway Diesel Sold in 1993 and Later Calendar
Years; Recordkeeping Requirements,'' OMB Control Number 2060-0308,
EPA ICR Number 1718.12 (expires July 31, 2001). Copies of this ICR
may be obtained from Sandy Farmer, Office of Policy, Regulatory
Information Division, U.S. Environmental Protection Agency (Mail
Code 2137), 401 M Street, SW, Washington, DC 20460. Please mark
requests, ``Attention: Desk Officer for EPA'' and include the ICR in
any correspondence.
---------------------------------------------------------------------------

We request comments on the Agency's need for the information
proposed to be collected, the accuracy of our estimates of the
associated burdens, and any suggested methods for minimizing the
burden, including the use of automated techniques for the collection of
information. Comments on the draft ICR should be sent to: the Office of
Policy, Regulatory Information Division, U.S. Environmental Protection
Agency (Mail Code 2136), 401 M Street, SW, Washington, DC 20460, marked
``Attention: Director of OP;'' and to the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street,
NW, Washington, DC 20503, marked ``Attention: Desk Officer for EPA.''
Include the ICR number in any such correspondence. OMB is required to
make a decision concerning the ICR between 30 and 60 days after
publication of a proposed rule. Therefore, comments to OMB on the ICR
are most useful if received within 30 days of the publication date of
this proposal. Any comments from OMB and from the public on the
information collection requirements in today's proposal will be placed
in the docket and addressed by EPA in the final rule.
Copies of the ICR documents can be obtained from Sandy Farmer,
Office of Policy, Regulatory Information Division, U.S. Environmental
Protection Agency (Mail Code 2137), 401 M Street, SW, Washington, DC
20460, or by calling (202) 260-2740. Insert the ICR title and/or OMB
control number in any correspondence. Copies may also be downloaded
from the Internet at http://www.epa.gov/ncepihom/catalog.html.

D. Intergovernmental Relations

1. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments, and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``federal mandates'' that
may result in expenditures to state, local, and tribal governments, in
the aggregate, or to the

[[Page 35543]]

private sector, of $100 million or more for any single year. Before
promulgating a rule, for which a written statement is needed, section
205 of the UMRA generally requires EPA to identify and consider a
reasonable number of regulatory alternatives and adopt the least
costly, most cost effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative that is not the least
costly, most cost effective, or least burdensome alternative if EPA
provides an explanation in the final rule of why such an alternative
was adopted.
Before we establish any regulatory requirement that may
significantly or uniquely affect small governments, including tribal
governments, we must develop a small government plan pursuant to
section 203 of the UMRA. Such a plan must provide for notifying
potentially affected small governments, and enabling officials of
affected small governments to have meaningful and timely input in the
development of our regulatory proposals with significant federal
intergovernmental mandates. The plan must also provide for informing,
educating, and advising small governments on compliance with the
regulatory requirements.
This proposed rule contains no federal mandates for state, local,
or tribal governments as defined by the provisions of Title II of the
UMRA. The rule imposes no enforceable duties on any of these
governmental entities. Nothing in the proposed rule would significantly
or uniquely affect small governments.
EPA has determined that this rule contains federal mandates that
may result in expenditures of more than $100 million to the private
sector in any single year. As discussed at length in section VI of this
proposal, EPA considered and evaluated a wide range of regulatory
alternatives before arriving at the program proposed today. EPA
believes that the proposed program represents the least costly, most
cost effective approach to achieve the air quality goals of the
proposed rule. Nevertheless, as is clear in section VI and throughout
the preamble, we continue to investigate and seek comment on
alternatives that may achieve the proposals objectives but at a lower
cost. See the ``Administrative Designation and Regulatory Analysis''
(section XI.A) for further information regarding these analyses.
2. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian Tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the OMB, in a separately identified section
of the preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian Tribal governments. The proposed engine
emissions, diesel fuel, and other related requirements for private
businesses in this proposal would have national applicability, and thus
would not uniquely affect the communities of Indian Tribal Governments.
Further, no circumstances specific to such communities exist that would
cause an impact on these communities beyond those discussed in the
other sections of this proposal. Thus, EPA's conclusions regarding the
impacts from the implementation of today's proposed rule discussed in
the other sections of this proposal are equally applicable to the
communities of Indian Tribal governments. Accordingly, the requirements
of section 3(b) of Executive Order 13084 do not apply to this rule.

E. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), section 12(d) of Public Law 104-113, directs EPA
to use voluntary consensus standards in its regulatory activities
unless it would be inconsistent with applicable law or otherwise
impractical. Voluntary consensus standards are technical standards
(e.g., materials specifications, test methods, sampling procedures, and
business practices) developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
This proposed rule references technical standards adopted by the
Agency through previous rulemakings. No new technical standards are
proposed in this proposal. The standards referenced in today's proposed
rule involve the measurement of diesel fuel parameters and engine
emissions. The measurement standards for diesel fuel parameters
referenced in today's proposal are all voluntary consensus standards.
The engine emissions measurement standards referenced in today's
proposed rule are government-unique standards that were developed by
the Agency through previous rulemakings. These standards have served
the Agency's emissions control goals well since their implementation
and have been well accepted by industry. EPA is not aware of any
voluntary consensus standards for the measurement of engine emissions.
Therefore, the Agency proposes to use the existing EPA-developed
standards found in 40 CFR part 86 for the measurement of engine
emissions.
EPA welcomes comments on this aspect of the proposed rulemaking
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such
standards should be used in this regulation.

F. Executive Order 13045: Children's Health Protection

Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, section 5-501 of the Order directs the Agency to
evaluate the environmental health or safety effects of the planned rule
on children, and explain why the planned regulation is preferable to
other potentially effective and reasonably feasible alternatives
considered by the Agency.
This proposed rule is subject to the Executive Order because it is
an economically significant regulatory

[[Page 35544]]

action as defined by Executive Order 12866 and it concerns in part an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children.
This rulemaking will achieve significant reductions of various
emissions from heavy-duty engines, primarily NO_X, but also
PM. These pollutants raise concerns regarding environmental health or
safety risks that EPA has reason to believe may have a disproportionate
effect on children, such as impacts from ozone, PM and certain toxic
air pollutants. See section II and the Draft RIA for a further
discussion of these issues.
The effects of ozone and PM on children's health were addressed in
detail in EPA's rulemaking to establish the NAAQS for these pollutants,
and EPA is not revisiting those issues here. EPA believes, however,
that the emission reductions from the strategies proposed in this
rulemaking will further reduce air toxics and the related adverse
impacts on children's health. EPA will also be addressing the issues
raised by air toxics from engines and their fuels in a separate
rulemaking that EPA will initiate in the near future under section
202(l) of the Act. That rulemaking will address the emissions of
hazardous air pollutants from engines and fuels, and the appropriate
level of control of HAPs from these sources.
In this proposal, EPA has evaluated several regulatory strategies
for reductions in emissions from heavy-duty engines. (See section III
of this proposal as well as the Draft RIA.) For the reasons described
there, EPA believes that the strategies proposed are preferable under
the CAA to other potentially effective and reasonably feasible
alternatives considered by the Agency, for purposes of reducing
emissions from these sources as a way of helping areas achieve and
maintain the NAAQS for ozone and PM. Moreover, EPA believes that it has
selected for proposal the most stringent and effective control
reasonably feasible at this time, in light of the technology and cost
requirements of the Act.

G. Executive Order 13132: Federalism

Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law, unless
the Agency consults with State and local officials early in the process
of developing the proposed regulation.
Section 4 of the Executive Order contains additional requirements
for rules that preempt State or local law, even if those rules do not
have federalism implications (i.e., the rules will not have substantial
direct effects on the States, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government). Those
requirements include providing all affected State and local officials
notice and an opportunity for appropriate participation in the
development of the regulation. If the preemption is not based on
express or implied statutory authority, EPA also must consult, to the
extent practicable, with appropriate State and local officials
regarding the conflict between State law and Federally protected
interests within the agency's area of regulatory responsibility.
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. Section 211(d)(4)(A) of the CAA
prohibits states from prescribing or attempting to enforce controls or
prohibitions respecting any fuel characteristic or component if EPA has
prescribed a control or prohibition applicable to such fuel
characteristic or component under section 211(c)(1) of the Act. This
proposed rule merely modifies existing EPA diesel fuel and heavy-duty
vehicle standards and therefore will merely continue an existing
preemption of State and local law as discussed in section VIII.C. Thus,
Executive Order 13132 does not apply to this rule.
Although section 6 of Executive Order 13132 does not apply to this
rule, EPA did consult with representatives of various State and local
governments in developing this rule. In particular EPA consulted with
the State of Alaska in the design of the program as it applies to them,
as discussed in section VI. EPA also talked to representatives from the
State of California as well as representatives from STAPPA/ALAPCO,
which represents state and local air pollution officials.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.

XII. Statutory Provisions and Legal Authority

Statutory authority for the engine controls proposed in this notice
can be found in sections 202, 203, 206, 207, 208, and 301 of the CAA,
as amended, 42 U.S.C. 7521, 7522, 7525, 7541, 7542, and 7601.
Statutory authority for the fuel controls proposed in this document
comes from section 211(c) and 211(i) of the CAA, which allows EPA to
regulate fuels that either contribute to air pollution which endangers
public health or welfare or which impair emission control equipment
which is in general use or has been in general use. Additional support
for the procedural and enforcement-related aspects of the fuel's
controls in today's proposal, including the proposed recordkeeping
requirements, comes from sections 114(a) and 301(a) of the CAA.

List of Subjects

40 CFR Part 69

Environmental protection. Air pollution control.

40 CFR Part 80

Environmental protection, Diesel fuel, Fuel additives, Gasoline,
Imports, Labeling, Motor vehicle pollution, Penalties, Reporting and
recordkeeping requirements.

40 CFR Part 86

Environmental protection, Administrative practice and procedure,
Confidential business information, Labeling, Motor vehicle pollution,
Penalties, Reporting and recordkeeping requirements.

[[Page 35545]]

Dated: May 17, 2000.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, we propose to amend
Parts 69, 80 and 86 of chapter I of Title 40 of the Code of Federal
Regulations to read as follows:

PART 69--[AMENDED]

1. The authority citation for part 69 is revised to read as
follows:

Authority: 42 U.S.C. 7545(c), (g) and (i), and 7625-1.

Subpart E--Alaska

2. Section 69.51 of subpart E is revised to read as follows:

Sec. 69.51 Title II exemptions and exclusions.

(a) Diesel fuel that is designated for use only in Alaska and is
used only in Alaska, is exempt from the sulfur standard of 40 CFR
80.29(a)(1)(i) and the dye provisions of 40 CFR 80.29(a)(1)(iii) and 40
CFR 80.29(b) until the implementation dates set out in 40 CFR 80.440,
provided that:
(1) The fuel is segregated from non-exempt diesel fuel from the
point of such designation; and
(2) On each occasion that any person transfers custody or title to
the fuel, except when it is dispensed at a retail outlet or wholesale
purchaser-facility, the transferor must provide to the transferee a
product transfer document stating:

This diesel fuel is for use only in Alaska. It is exempt from
the federal low sulfur standards applicable to motor vehicle diesel
fuel and red dye requirements applicable to non-motor vehicle diesel
fuel only if it is used in Alaska.

(b) Beginning on the implementation dates set out in Sec. 80.440,
diesel fuel that is designated for use only in Alaska or is used only
in Alaska, is subject to the applicable provisions of 40 CFR part 80,
subpart I, except as provided under paragraph (c) of this section.
Alaska may submit for EPA approval an alternative plan for implementing
the sulfur standard in Alaska by [date one year after the effective
date of the final rule]. EPA shall approve or disapprove the plan
within one year of receiving Alaska's submission.
(c) If such diesel fuel is designated as fuel that does not comply
with the standards and requirements for motor vehicle diesel fuel under
40 CFR part 80, subpart I, it is exempt from the dye presumption of 40
CFR 80.446(b)(2) provided that:
(1) The fuel is segregated from all motor vehicle diesel fuel.
(2) On each occasion that any person transfers custody or title to
the fuel, except when it is dispensed at a retail outlet or wholesale
purchaser-facility, the transferor must provide to the transferee a
product transfer document complying with the requirements of 40 CFR
80.462(a) and (d) and stating:

This diesel fuel is for use only in Alaska and is not for use in
motor vehicles. It is exempt from the red dye requirement applicable
to non-motor vehicle diesel fuel only if it is used in Alaska.

(3) Any pump dispensing the fuel must comply with the labeling
requirements in 40 CFR 80.453.

PART 80--[AMENDED]

3. The authority citation for part 80 continues to read as follows:

Authority: Sections 114, 211, and 301(a) of the Clean Air Act,
as amended (42 U.S.C. 7414, 7545 and 7601(a)).

4. Section 80.2 is amended by revising paragraphs (x) and (y) and
adding paragraphs (bb) and (nn), to read as follows:

Sec. 80.2 Definitions.

* * * * *
(x) Diesel fuel means any fuel sold in any state and suitable for
use in diesel motor vehicles, diesel motor vehicle engines or diesel
nonroad engines, and which is commonly or commercially known as diesel
fuel.
(y) Motor vehicle diesel fuel means any diesel fuel, or any
distillate product, that is used, intended for use, or made available
for use, as a fuel in diesel motor vehicles or diesel motor vehicle
engines. Motor vehicles or motor vehicle engines do not include nonroad
vehicles or nonroad engines.
* * * * *
(bb) Sulfur percentage is the percentage of sulfur in diesel fuel
by weight, as determined using the applicable sampling and testing
methodologies set forth in Sec. 80.461.
* * * * *
(nn) Batch of motor vehicle diesel fuel means a quantity of diesel
fuel which is homogeneous with regard to those properties that are
specified for motor vehicle diesel fuel under subpart I of this part.
* * * * *
5. Section 80.29 is amended by revising paragraphs (a)(1)
introductory text and (b), to read as follows:

Sec. 80.29 Controls and prohibitions on diesel fuel quality.

(a) Prohibited activities. (1) Beginning October 1, 1993 and
continuing until the implementation dates for subpart I of this part as
specified in Sec. 80.440, except as provided in 40 CFR 69.51, no
person, including but not limited to, refiners, importers,
distributors, resellers, carriers, retailers or wholesale purchaser-
consumers, shall manufacture, introduce into commerce, sell, offer for
sale, supply, store, dispense, offer for supply or transport any diesel
fuel for use in motor vehicles, unless the diesel fuel:
* * * * *
(b) Determination of compliance. (1) Any diesel fuel which does not
show visible evidence of being dyed with dye solvent red 164 (which has
a characteristic red color in diesel fuel) shall be considered to be
available for use in diesel motor vehicles and motor vehicle engines,
and shall be subject to the prohibitions of paragraph (a) of this
section.
(2) Compliance with the sulfur, cetane, and aromatics standards in
paragraph (a) of this section shall be determined based on the level of
the applicable component or parameter, using the sampling methodologies
specified in Sec. 80.330(b), as applicable, and the appropriate testing
methodologies specified in Sec. 80.461(a) or (b) for sulfur,
Sec. 80.2(w) for cetane index, and Sec. 80.2(z) for aromatic content.
Any evidence or information, including the exclusive use of such
evidence or information, may be used to establish the level of the
applicable component or parameter in the diesel fuel, if the evidence
or information is relevant to whether that level would have been in
compliance with the standard if the appropriate sampling and testing
methodology had been correctly performed. Such evidence may be obtained
from any source or location and may include, but is not limited to,
test results using methods other than the compliance methods in this
paragraph (b), business records, and commercial documents.
(3) Determination of compliance with the requirements of this
section other than the standards described in paragraph (a) of this
section, and determination of liability for any violation of this
section, may be based on information obtained from any source or
location. Such information may include, but is not limited to, business
records and commercial documents.
* * * * *
6. Section 80.30 is amended by revising paragraphs (g)(2)(ii) and
(g)(4)(i), and adding paragraph (h), to read as follows:

[[Page 35546]]

Sec. 80.30 Liability for violations of diesel fuel controls and
prohibitions.

* * * * *
(g) Defenses. * * *
* * * * *
(2) * * *
(ii) Test results, performed in accordance with the applicable
sampling and testing methodologies set forth in Secs. 80.2(w), 80.2(z),
80.2(bb), and 80.461, which evidence that the diesel fuel determined to
be in violation was in compliance with the diesel fuel standards of
Sec. 80.29(a) when it was delivered to the next party in the
distribution system;
* * * * *
(4) * * *
(i) Test results, performed in accordance with the applicable
sampling and testing methodologies set forth in Secs. 80.2(w), 80.2(z),
80.2(bb), and 80.461, which evidence that the diesel fuel determined to
be in violation was in compliance with the diesel fuel standards of
Sec. 80.29(a) when it was delivered to the next party in the
distribution system;
* * * * *
(h) Detection of violations. In paragraphs (a) through (f) of this
section, the term ``is detected at'' means that the violation existed
at the facility in question, and the existence of the violation at that
facility may be established through evidence obtained or created at
that facility, at any other location, and by any party.
7. Subpart I is added to read as follows:

Subpart I--Diesel Fuel Sulfur Control

Sec.

General Information

80.440 What are the implementation dates for the diesel fuel
sulfur control program?
80.441 What diesel fuel is subject to the provisions of this
subpart?
80.442-80.445 [Reserved]

Motor Vehicle Diesel Fuel Standards and Requirements

80.446 What are the standards and dye requirements for motor
vehicle diesel fuel?
80.447 What are the standards and identification requirements for
additives that are blended into or are offered for sale for use in
motor vehicle diesel fuel?
80.448 May used motor oil be dispensed into diesel motor vehicles?
80.449 What diesel fuel designation requirements apply to refiners
and importers?
80.450-80.452 [Reserved]
80.453 What labeling requirements apply to retailers and wholesale
purchaser-consumers?
80.454-80.460 [Reserved]

Sampling and Testing

80.461 What are the sampling and test methods for sulfur?

Recordkeeping and Reporting Requirements

80.462 What are the product transfer document requirements for
motor vehicle diesel fuel?
80.463 What are the product transfer document requirements for
additives to be used in motor vehicle diesel fuel?
80.464 What records must be kept?
80.465 [Reserved]

Exemptions

80.466 What are the requirements for obtaining an exemption for
motor vehicle diesel fuel used for research, development or testing
purposes?
80.467 What are the requirements for an exemption for motor
vehicle diesel fuel for use in the Territories?
80.468-80.469 [Reserved]

Violation Provisions

80.470 What acts are prohibited under the diesel fuel sulfur
control program?
80.471 What evidence may be used to determine compliance with the
prohibitions and requirements of this subpart and liability for
violations of this subpart?
80.472 Who is liable for violations of this subpart?
80.473 What defenses apply to persons deemed liable for a
violation of a prohibited act?
80.474 What penalties apply under this subpart?

Subpart I--Diesel Fuel Sulfur Control General Information

Sec. 80.440 What are the implementation dates for the diesel fuel
sulfur control program?

(a) [Reserved]
(b) Standards applicable to refiners and importers. Beginning April
1, 2006, standards for motor vehicle diesel fuel under Sec. 80.446
apply to motor vehicle diesel fuel produced by any refinery or imported
by any importer.
(c) Standards applicable downstream of the refinery or importer.
Beginning May 1, 2006, standards for motor vehicle diesel fuel under
Sec. 80.446 apply to motor vehicle diesel fuel at any facility in the
diesel fuel distribution system downstream of the refinery or importer
except at retail outlets and wholesale purchaser-consumer facilities.
(d) Standards applicable to retailers and wholesale purchaser-
consumers. Beginning June 1, 2006, standards for motor vehicle diesel
fuel under Sec. 80.446 and Sec. 80.453 apply to motor vehicle diesel
fuel at any facility in the diesel fuel distribution system.
(e) [Reserved]
(f) Other provisions. All other provisions of this subpart apply
April 1, 2006.

Sec. 80.441 What diesel fuel is subject to the provisions of this
subpart?

(a) Included fuel. The provisions of this subpart apply to motor
vehicle diesel fuel as defined in Sec. 80.2(y), and to diesel fuel
additives and motor oil that are used as fuel in diesel motor vehicles
or are blended with diesel fuel for use in diesel motor vehicles at any
point downstream of the refinery, as provided in Secs. 80.447 and
80.448.
(b) Excluded fuel. The provisions of this subpart do not apply to
motor vehicle diesel fuel that is designated for export outside the
United States, and identified for export by a transfer document as
required under Sec. 80.462.

Secs. 80.442--80.445 [Reserved]

Motor Vehicle Diesel Fuel Standards and Requirements

Sec. 80.446 What are the standards and dye requirements for motor
vehicle diesel fuel?

(a) Standards. All motor vehicle diesel fuel is subject to the
following per-gallon standards:
(1) Sulfur content. 15 parts per million (ppm);
(2) Cetane index and aromatic content. (i) A minimum cetane index
of 40; or
(ii) A maximum aromatic content cap of 35 volume percent.
(b) Dye requirements. (1) All motor vehicle diesel fuel shall be
free of visible presence of dye solvent red 164 (which has a
characteristic red color in diesel fuel), except for motor vehicle
diesel fuel that is used in a manner that is tax exempt under section
4082 of the Internal Revenue Code (26 U.S.C. 4082).
(2) Any diesel fuel that does not show visible presence of dye
solvent red 164 shall be considered to be motor vehicle diesel fuel and
subject to all the requirements of this subpart for motor vehicle
diesel fuel, except for diesel fuel designated for use only in:
(i) Guam, American Samoa, or the Commonwealth of the Northern
Mariana Islands as provided under Sec. 80.467;
(ii) The State of Alaska as provided under 40 CFR 69.51; or
(iii) Jet aircraft, research and development testing, or for
export.

Sec. 80.447 What are the standards and identification requirements for
additives that are blended into or are offered for sale for use in
motor vehicle diesel fuel?

(a) Any additive that is blended into motor vehicle diesel fuel
downstream of the refinery or is offered for sale for use in diesel
motor vehicles shall have a sulfur content not exceeding 15 ppm.
(b) Transfer of the diesel fuel additive shall be accompanied by a
transfer document under Sec. 80.463, except as

[[Page 35547]]

provided in paragraph (c) of this section.
(c) For additives sold in containers for use by the ultimate
consumer of diesel fuel, each transferor shall include on the additive
container, in a legible and conspicuous manner, the following accurate
printed statement:

This diesel fuel additive complies with the federal sulfur
content requirements for use in diesel motor vehicles.

Sec. 80.448 May used motor oil be dispensed into diesel motor
vehicles?

No person shall introduce used motor oil, or used motor oil blended
with diesel fuel, into model year 2007 or later diesel motor vehicles,
unless the following requirements have been met:
(a) The engine manufacturer has received a Certificate of
Conformity for the vehicle engine under 40 CFR part 86 that is
explicitly based on the addition of motor oil having the greatest
sulfur content of any motor oil that is commercially available; and
(b) The oil is added in a manner consistent with the conditions of
the certificate.

Sec. 80.449 What diesel fuel designation requirements apply to
refiners and importers?

Any refiner or importer shall accurately and clearly designate all
fuel it produces or imports for use in motor vehicles as motor vehicle
diesel fuel.

Secs. 80.450-80.452 [Reserved]

Sec. 80.453 What labeling requirements apply to retailers and
wholesale purchaser-consumers?

Any retailer or wholesale purchaser-consumer who sells, dispenses,
or offers for sale or dispensing, non-road diesel fuel and motor
vehicle diesel fuel, must prominently and conspicuously display in the
immediate area of each pump stand from such fuel is offered for sale or
dispensing, the following legible label, in block letters of no less
than 36-point bold type, printed in a color contrasting with the
background, and placed in a location that is readily visible to the
fuel recipient:

This is high sulfur diesel fuel which is not to be used in any
highway motor vehicle. The use of high sulfur diesel fuel in highway
motor vehicles may damage emissions controls, harm engine
operations, and void your emissions warranty.

Secs. 80.454-80.460 [Reserved]

Sampling and Testing

Sec. 80.461 What are the sampling and test methods for sulfur?

(a) Diesel fuel. For purposes of Sec. 80.446, the sulfur content of
diesel fuel is the sulfur content as determined by:
(1) Sampling method. The applicable sampling methodology provided
in Sec. 80.330(b).
(2) Test method for sulfur. The American Society for Testing and
Materials (ASTM) standard method D 2622-98, entitled ``Standard Test
Method for Sulfur in Petroleum Products by Wavelength Dispersive X-ray
Fluorescence Spectrometry,'' modified as follows:
(i)(A) The blank stock used as a diluent for all calibration
standards and sample dilutions must be prepared by mixing the following
compounds at the specified proportions: 15 grams tert-butylbenzene, 15
grams decane, 15 grams dodecane, 15 grams tetradecane, 15 grams
hexadecane, 15 grams tetralin, 5 grams octadecane, 5 grams napthalene.
(B) The weight tolerances are +/-5 percent for each compound. The
compounds must have a minimum purity of 99 percent.
(ii) Standards must be prepared by gravimetric dilution of the
appropriate pure or certified sulfur compounds in the blank stock.
(iii) A standard series of 5 calibration points at standard levels
must be run. An additional blank calibration standard must be included
using the blank stock prepared pursuant to the requirements of this
section.
(iv) A graph of the calibration points must be prepared. This graph
must show the calibration data to be linear with minimal deviation from
the least squares line. Any deviation from linearity and/or any
standard that does not appear to lie on the least squares line must be
investigated.
(v) A new regression line must be calculated using the calibration
point from the blank and the single standard that falls closest to the
least squares line that was derived using all of the calibration
points. This is simply a recalculation using the same data, additional
standard analyses are not necessary for this recalculation. For this
recalculation, it is preferred that the non-zero standard be in the
upper portion of the calibration.
(vi) Analyzing the blank as an unknown, the blank must return a
zero within +/-1 ppm.
(vii) The following guidelines are useful in limiting test
variability: For ongoing verification when samples are in the single
digit range, it is good practice to include more duplicates and include
both blank samples and control fluid samples. For higher level samples,
it is good practice to analyze samples in batches of 12. One duplicate
and one control fluid sample should be analyzed with each batch of 12
samples. For lower level work, it is good practice to run samples in
batches of 6. One duplicate, one control fluid, and one blank should be
analyzed with each batch of 6 samples. As a general comment, care must
be taken not to pollute the blank with sulfur from higher samples or
standards through the process of preparing standards and analyzing the
blanks.
(3) Quality assurance test method. Any ASTM sulfur test method may
be used for quality assurance testing under Sec. 80.473, if the
protocols of the ASTM method are followed and the alternative method is
correlated to the method provided in paragraph (b) of this section.
(b) Motor Oil. For purposes of Sec. 80.448, the sulfur content of
unused motor oil for use in diesel fuel is the sulfur content as
determined by the use of American Society for Testing and Materials
(ASTM) standard method D 6443-99, entitled ``Standard Test Method for
Determination of Calcium, Chlorine, Copper, Magnesium, Phosphorous,
Sulfur, and Zinc, in Unused Lubricating Oils and Additives by
Wavelength Dispersive X-ray Fluorescence Spectrometry (Mathematical
Correction Procedure).''
(c) Incorporation by reference. ASTM Standard Method D 6443-99 is
incorporated by reference. This incorporation by reference was approved
by the Director of the Federal Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. Copies may be obtained from the American
Society for Testing and Materials, 100 Bar Harbor Dr., West
Conshohocken, PA 19428. Copies may be inspected at the Air Docket
Section (LE-131), room M-1500, U.S. Environmental Protection Agency,
Docket No. A-99-06, 401 M Street, SW, Washington, DC 20460, or at the
Office of the Federal Register, 800 North Capitol Street, NW, Suite
700, Washington, DC.

Recordkeeping and Reporting Requirements

Sec. 80.462 What are the product transfer document requirements for
motor vehicle diesel fuel?

On each occasion that any person transfers custody or title to
motor vehicle diesel fuel, except when such fuel is dispensed into
motor vehicles at a retail outlet or wholesale purchaser-facility, the
transferor must provide to the transferee a product transfer document
identifying the fuel as motor vehicle diesel fuel, and which:

[[Page 35548]]

(a) Identifies the name and address of the transferor and
transferee, and the date of transfer;
(b) Except as provided in 40 CFR 69.51, includes an accurate
statement, as applicable, that:
(1) ``This fuel complies with the 15 ppm sulfur standard for motor
vehicle diesel fuel.'';
(2) ``This is high sulfur motor vehicle diesel fuel for use only in
Guam, American Samoa, or the Northern Mariana Islands.'';
(3) ``This diesel fuel is for export use only.''; or
(4) ``This diesel fuel is for research, development, or testing
purposes only.''
(c) For motor vehicle diesel fuel that contains visible evidence of
the dye solvent red 164, the following accurate statement:

This fuel is motor vehicle diesel fuel for tax-exempt use only,
in accordance with Section 4082 of the Internal Revenue Code.

(d) Except for transfers to truck carriers, retailers or wholesale
purchaser-consumers, product codes may be used to convey the
information required by paragraph (a) of this section if such codes are
clearly understood by each transferee.

Sec. 80.463 What are the product transfer document requirements for
additives to be used in motor vehicle diesel fuel?

(a) Except as provided in Sec. 80.447(c), on each occasion that any
person transfers custody or title to an additive for use in motor
vehicle diesel fuel, to a party in the motor vehicle diesel fuel
distribution system downstream of the refiner, the transferor must
provide to the transferee a product transfer document which identifies
the type of additive, and which:
(1) Identifies the name and address of the transferor and
transferee, and the date of transfer; and
(2) Includes the following accurate statement:

This additive complies with the federal 15 ppm sulfur standard
for motor vehicle diesel fuel.

(b) Except for transfers of motor vehicle diesel fuel to truck
carriers, retailers or wholesale purchaser-consumers, product codes may
be used to convey the information required under paragraph (a) of this
section, if such codes are clearly understood by each transferee.

Sec. 80.464 What records must be kept?

(a) Records that must be kept. Beginning April 1, 2006, any person
who produces, imports, sells, offers for sale, dispenses, distributes,
supplies, offers for supply, stores, or transports motor vehicle diesel
fuel subject to the provisions of this subpart must keep the following
records:
(1) The product transfer documents required under Secs. 80.462 and
80.463.
(2) For any sampling and testing for sulfur content, cetane index
or aromatics content of motor vehicle diesel fuel or additives,
conducted as part of a quality assurance program or otherwise:
(i) The location, date, time and storage tank or truck
identification for each sample collected;
(ii) The name and title of the person who collected the sample and
the person who performed the testing; and
(iii) The results of the tests for diesel fuel properties as
required under this subpart and the volume of product in the storage
tank or container from which the sample was taken.
(3) The actions the party has taken, if any, to stop the sale or
distribution of any diesel fuel found not to be in compliance with the
standards specified in this subpart, and the actions the party has
taken, if any, to identify the cause of any noncompliance and prevent
future instances of noncompliance.
(4) Business records establishing compliance with the designation
and/or segregation requirements pursuant to the requirements of this
subpart.
(b) [Reserved]
(c) Additive distribution system records. Beginning April 1, 2006,
any person who produces, imports, sells, offers for sale, dispenses,
distributes, supplies, offers for supply, stores, or transports an
additive for use in motor vehicle diesel fuel and who is required to
transfer or receive a product transfer document for that additive
pursuant to Sec. 80.463, must maintain such documents.
(d) Length of time records must be kept. The records required under
this section must be maintained for five years from the date they were
created.
(e) Make records available to EPA. The records required to be
maintained under this section must be made available to the
Administrator or the Administrator's authorized representative upon
request.

Sec. 80.465 [Reserved]

Exemptions

Sec. 80.466 What are the requirements for obtaining an exemption for
motor vehicle diesel fuel used for research, development or testing
purposes?

(a) Written request for R&D exemption. Any person may receive an
exemption from the provisions of this subpart for motor vehicle diesel
fuel used for research, development, or testing (``R&D'') purposes by
submitting the information listed in paragraph (c) of this section to:
(1) Director (6406J), Transportation and Regional Programs
Division, U.S. Environmental Protection Agency, Ariel Rios Building,
1200 Pennsylvania Avenue, NW., Washington, DC 20460 (postal mail); or
(2) Director (6406J), Transportation and Regional Programs
Division, U.S. Environmental Protection Agency, 501 3rd Street, NW.,
Washington, DC 20001 (express mail/courier); and
(3) Director (2242A), Air Enforcement Division, U.S. Environmental
Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460.
(b) Criteria for an R&D exemption. For an R&D exemption to be
granted, the person requesting an exemption must:
(1) Demonstrate a purpose that constitutes an appropriate basis for
exemption;
(2) Demonstrate that an exemption is necessary;
(3) Design an R&D program to be reasonable in scope; and
(4) Exercise a degree of control consistent with the purpose of the
program and EPA's monitoring requirements.
(c) Information required to be submitted. To demonstrate each of
the elements in paragraphs (b)(1) through (4) of this section, the
person requesting an exemption must include the following information
in the written request required under paragraph (a) of this section:
(1) A concise statement of the purpose of the program demonstrating
that the program has an appropriate R&D purpose.
(2) An explanation of why the stated purpose of the program cannot
be achieved in a practicable manner without performing one or more of
the prohibited acts under this subpart.
(3) To demonstrate the reasonableness of the scope of the program:
(i) An estimate of the program's duration in time and, if
appropriate, mileage;
(ii) An estimate of the maximum number of vehicles or engines
involved in the program;
(iii) The manner in which the information on vehicles and engines
used in the program will be recorded and made available to the
Administrator upon request; and
(iv) The quantity of diesel fuel which does not comply with the
requirements of Secs. 80.446 through 80.448.
(4) With regard to control, a demonstration that the program
affords EPA a monitoring capability, including:

[[Page 35549]]

(i) The site(s) of the program (including facility name, street
address, city, county, state, and zip code);
(ii) The manner in which information on vehicles and engines used
in the program will be recorded and made available to the Administrator
upon request;
(iii) The manner in which information on the diesel fuel used in
the program (including quantity, fuel properties, name, address,
telephone number and contact person of the supplier, and the date
received from the supplier), will be recorded and made available to the
Administrator upon request;
(iv) The manner in which the party will ensure that the R&D fuel
will be segregated from motor vehicle diesel fuel and fuel pumps will
be labeled to ensure proper use of the R&D diesel fuel;
(v) The name, address, telephone number and title of the person(s)
in the organization requesting an exemption from whom further
information on the application may be obtained; and
(vi) The name, address, telephone number and title of the person(s)
in the organization requesting an exemption who is responsible for
recording and making available the information specified in this
paragraph, and the location where such information will be maintained.
(d) Additional requirements. (1) The product transfer documents
associated with R&D motor vehicle diesel fuel must comply with
requirements of Sec. 80.462(b)(5).
(2) The R&D diesel fuel must be designated by the refiner or
supplier, as applicable, as R&D diesel fuel.
(3) The R&D diesel fuel must be kept segregated from non-exempt
motor vehicle diesel fuel at all points in the distribution system.
(4) The R&D diesel fuel must not be sold, distributed, offered for
sale or distribution, dispensed, supplied, offered for supply,
transported to or from, or stored by a diesel fuel retail outlet, or by
a wholesale purchaser-consumer facility, unless the wholesale
purchaser-consumer facility is associated with the R&D program that
uses the diesel fuel.
(5) At the completion of the program, any emission control systems
or elements of design which are damaged or rendered inoperative shall
be replaced, or the responsible person will be liable for a violation
of the Clean Air Act Section 203(a)(3) unless sufficient evidence is
supplied that the emission controls or elements of design were not
damaged.
(e) [Reserved]
(f) Mechanism for granting of an exemption. A request for an R&D
exemption will be deemed approved by the earlier of sixty (60) days
from the date on which EPA receives the request for exemption,
(provided that EPA has not notified the applicant of potential
disapproval by that time), or the date on which the applicant receives
a written approval letter from EPA.
(1) The volume of diesel fuel subject to the approval shall not
exceed the estimated amount in paragraph (c)(3)(iv) of this section,
unless EPA grants a greater amount in writing.
(2) Any exemption granted under this section will expire at the
completion of the test program or three years from the date of
approval, whichever occurs first, and may only be extended upon re-
application consistent will all requirements of this section.
(3) The passage of sixty (60) days will not signify the acceptance
by EPA of the validity of the information in the request for an
exemption. EPA may elect at any time to review the information
contained in the request, and where appropriate may notify the
responsible person of disapproval of the exemption.
(4) In granting an exemption the Administrator may include terms
and conditions, including replacement of emission control devices or
elements of design, that the Administrator determines are necessary for
monitoring the exemption and for assuring that the purposes of this
subpart are met.
(5) Any violation of a term or condition of the exemption, or of
any requirement of this section, will cause the exemption to be void ab
initio.
(6) If any information required under paragraph (c) of this section
should change after approval of the exemption, the responsible person
must notify EPA in writing immediately. Failure to do so may result in
disapproval of the exemption or may make it void ab initio, and may
make the party liable for a violation of this subpart.
(g) Effects of exemption. Motor vehicle diesel fuel that is subject
to an R&D exemption under this section is exempt from other provisions
of this subpart provided that the fuel is used in a manner that
complies with the purpose of the program under paragraph (c) of this
section and the requirements of this section.
(h) Notification of Completion. The party shall notify EPA in
writing within thirty (30) days of completion of the R&D program.

Sec. 80.467 What are the requirements for an exemption for motor
vehicle diesel fuel for use in the Territories?

The sulfur standards and dye requirement of Sec. 80.446(a)(1) and
(b) do not apply to diesel fuel that is produced, imported, sold,
offered for sale, supplied, offered for supply, stored, dispensed, or
transported for use in the Territories of Guam, American Samoa or the
Commonwealth of the Northern Mariana Islands provided that such diesel
fuel is:
(a) Designated by the refiner or importer as high sulfur diesel
fuel only for use in Guam, American Samoa, or the Commonwealth of the
Northern Mariana Islands;
(b) Used only in Guam, American Samoa, or the Commonwealth of the
Northern Mariana Islands;
(c) Accompanied by documentation that complies with the product
transfer document requirements of Sec. 80.462(b)(3); and
(d) Segregated from non-exempt highway and other diesel fuel at all
points in the distribution system from the point the diesel fuel is
designated as exempt fuel only for use in Guam, American Samoa, or the
Commonwealth of the Northern Mariana Islands, while the exempt fuel is
in the United States but outside these Territories.

Secs. 80.468-469 [Reserved]

Violation Provisions

Sec. 80.470 What acts are prohibited under the diesel fuel sulfur
program?

No person shall:
(a) Standard or dye violation. Produce, import, sell, offer for
sale, dispense, supply, offer for supply, store or transport motor
vehicle diesel fuel that does not comply with the applicable standards
and dye requirements under Sec. 80.446.
(b) Additive violation. Blend or permit the blending into motor
vehicle diesel fuel downstream of the refinery, or use, or permit the
use, as motor vehicle diesel fuel, of additives which do not comply
with the requirements of Sec. 80.447.
(c) Motor Oil violation. Introduce into diesel motor vehicles, or
permit the introduction into such vehicles of motor oil, or motor oil
blended with diesel fuel, which does not comply with the requirements
of Sec. 80.448.
(d) Introduction violation. Introduce, or permit the introduction
of, fuel into diesel motor vehicles which does not comply with the
standards of Sec. 80.446.
(e) Cause another party to violate. Cause another person to commit
an act in violation of paragraphs (a) through (d) of this section.

[[Page 35550]]

(f) Cause violating fuel or additive to be in the distribution
system. Cause diesel fuel to be in the diesel fuel distribution system
which does not comply with the applicable standard or dye requirements
of Sec. 80.446, or cause any diesel fuel additive to be in the
distribution system which does not comply with the sulfur standard of
Sec. 80.447.

Sec. 80.471 What evidence may be used to determine compliance with the
prohibitions and requirements of this subpart and liability for
violations of this subpart?

(a) Compliance with sulfur, cetane, and aromatics standards.
Compliance with the standards in Secs. 80.446 and 80.448 shall be
determined based on the level of the applicable component or parameter,
using the sampling methodologies specified in Sec. 80.330(b), as
applicable, and the appropriate testing methodologies specified in
Sec. 80.461(a) or (b) for sulfur, Sec. 80.2(w) for cetane index, and
Sec. 80.2(z) for aromatic content. Any evidence or information,
including the exclusive use of such evidence or information, may be
used to establish the level of the applicable component or parameter in
the diesel fuel, or motor oil to be used in diesel fuel, if the
evidence or information is relevant to whether that level would have
been in compliance with the standard if the appropriate sampling and
testing methodology had been correctly performed. Such evidence may be
obtained from any source or location and may include, but is not
limited to, test results using methods other than the compliance
methods in this paragraph, business records, and commercial documents.
(b) Compliance with other requirements. Determination of compliance
with the requirements of this subpart other than the standards
described in paragraph (a) of this section and in Secs. 80.446 and
80.448, and determination of liability for any violation of this
subpart, may be based on information obtained from any source or
location. Such information may include, but is not limited to, business
records and commercial documents.

Sec. 80.472 Who is liable for violations of this subpart?

(a) Persons liable for violations of prohibited acts.--(1)
Standard, dye, additives, motor oil, and introduction violations. (i)
Any refiner, importer, distributor, reseller, carrier, retailer, or
wholesale purchaser-consumer who owned, leased, operated, controlled or
supervised a facility where a violation of Sec. 80.470(a) through (d)
occurred, is deemed liable for the applicable violation.
(ii) Any person who violates Sec. 80.470(a) through (d) is liable
for the violation.
(iii) Any person who causes another person to violate
Sec. 80.470(a) through (d) is liable for a violation of Sec. 80.470(e).
(iv) Any refiner, importer, distributor, reseller, carrier,
retailer, or wholesale purchaser-consumer who produced, imported, sold,
offered for sale, dispensed, supplied, offered to supply, stored,
transported, or caused the transportation or storage of, diesel fuel
that violates Sec. 80.470(a), is deemed in violation of Sec. 80.470(e).
(2) Cause violating diesel fuel or additive to be in the
distribution system. Any refiner, importer, distributor, reseller,
carrier, retailer, or wholesale purchaser-consumer who owned, leased,
operated, controlled or supervised a facility from which motor vehicle
diesel fuel or additive was released into the distribution system which
does not comply with the applicable standards or dye requirement of
Sec. 80.446 or Sec. 80.447, is deemed in violation of Sec. 80.470(f).
(3) Branded refiner/importer liability. Any refiner or importer
whose corporate, trade, or brand name, or whose marketing subsidiary's
corporate, trade, or brand name appeared at a facility where a
violation of Sec. 80.470(a) occurred, is deemed in violation of
Sec. 80.470(a).
(4) Carrier causation. In order for a carrier to be liable under
paragraph (a)(1)(iii) or (iv) of this section, EPA must demonstrate, by
reasonably specific showing by direct or circumstantial evidence, that
the carrier caused the violation.
(5) Parent corporation. Any parent corporation is liable for any
violations of this subpart that are committed by any subsidiary.
(6) Joint venture. Each partner to a joint venture is jointly and
severally liable for any violation of this subpart that occurs at the
joint venture facility or is committed by the joint venture operation.
(b) Persons liable for failure to meet other provisions of this
subpart. Any refiner, importer, distributor, reseller, carrier,
retailer, or wholesale purchaser-consumer who:
(1) Fails to meet a provision of this subpart not addressed in
paragraph (a) of this section is liable for a violation of that
provision; or
(2) Causes another person to fail to meet a provision of this
subpart not addressed in paragraph (a) of this section, is liable for
causing a violation of that provision.

Sec. 80.473 What defenses apply to persons deemed liable for a
violation of a prohibited act?

(a) Presumptive liability defenses. Any person deemed liable for a
violation of a prohibition under Sec. 80.472 (a)(1)(i) or (a)(1)(iv),
(a)(2) or (a)(3), will not be deemed in violation if the person
demonstrates that:
(1) The violation was not caused by the person or the person's
employee or agent;
(2) Product transfer documents account for fuel or additive found
to be in violation and indicate that the violating product had met the
applicable requirements when it was under the party's control; and
(3) The person conducted a quality assurance sampling and testing
program, as described in paragraph (d) of this section. A carrier may
rely on the quality assurance program carried out by another party,
including the party who owns the diesel fuel in question, provided that
the quality assurance program is carried out properly. Retailers and
wholesale purchaser-consumers are not required to conduct quality
assurance programs.
(b) Branded refiner defenses. In the case of a violation found at a
facility operating under the corporate, trade or brand name of a
refiner or importer, or a refiner's or importer's marketing subsidiary,
the refiner or importer must show, in addition to the defense elements
required under paragraphs (a)(1) and (a)(2) of this section, that the
violation was caused by:
(1) An act in violation of law (other than the Clean Air Act or
this part 80), or an act of sabotage or vandalism;
(2) The action of any refiner, importer, retailer, distributor,
reseller, oxygenate blender, carrier, retailer or wholesale purchaser-
consumer in violation of a contractual agreement between the branded
refiner or importer and the person designed to prevent such action, and
despite periodic sampling and testing by the branded refiner or
importer to ensure compliance with such contractual obligation; or
(3) The action of any carrier or other distributor not subject to a
contract with the refiner or importer, but engaged for transportation
of diesel fuel, despite specifications or inspections of procedures and
equipment which are reasonably calculated to prevent such action.
(c) Causation demonstration. Under paragraph (a)(1) of this section
for any person to show that a violation was not caused by that person,
or under paragraph (b) of this section to show that a violation was
caused by any of the specified actions, the person must

[[Page 35551]]

demonstrate by reasonably specific showing, by direct or circumstantial
evidence, that the violation was caused or must have been caused by
another person and that the person asserting the defense did not
contribute to that other person's causation.
(d) Quality assurance and testing program. (1) To demonstrate an
acceptable quality assurance program under paragraph (a)(2) of this
section, a person must present evidence of the following:
(i) A periodic sampling and testing program to ensure the motor
vehicle diesel fuel or additive the person sold, dispensed, supplied,
stored, or transported, meets the applicable standards; and
(ii) On each occasion when motor vehicle diesel fuel or additive is
found not in compliance with the applicable standard:
(A) The person immediately ceases selling, offering for sale,
dispensing, supplying, offering for supply, storing or transporting the
non-complying product; and
(B) The person promptly remedies the violation and the factors that
caused the violation (for example, by removing the non-complying
product from the distribution system until the applicable standard is
achieved and taking steps to prevent future violations of a similar
nature from occurring).
(2) For any carrier who transports motor vehicle diesel fuel or
additive in a tank truck, the quality assurance program required under
this paragraph (d) need not include periodic sampling and testing of
the motor vehicle diesel fuel or additive in the tank truck, but in
lieu of such tank truck sampling and testing, the carrier shall
demonstrate evidence of an oversight program for monitoring compliance
with the requirements of this subpart relating to the transport or
storage of such product by tank truck, such as appropriate guidance to
drivers regarding compliance with the applicable sulfur standard and
product transfer document requirements, and the periodic review of
records received in the ordinary course of business concerning motor
vehicle diesel fuel or additive quality and delivery.

Sec. 80.474 What penalties apply under this subpart?

(a) Any person liable for a violation under Sec. 80.472 is subject
to civil penalties as specified in section 205 of the Clean Air Act for
every day of each such violation and the amount of economic benefit or
savings resulting from each violation.
(b)(1) Any person liable under Sec. 80.472(a)(1) for a violation of
an applicable standard or requirement under Sec. 80.446, or of causing
another party to violate such standard or requirement, is subject to a
separate day of violation for each and every day the non-complying
motor vehicle diesel fuel remains any place in the distribution system.
(2) Any person liable under Sec. 80.472(a)(2) for causing motor
vehicle diesel fuel to be in the distribution system which does not
comply with an applicable standard or requirement of Sec. 80.446, is
subject to a separate day of violation for each and every day that the
non-complying motor vehicle diesel fuel remains any place in the motor
vehicle diesel fuel distribution system.
(3) For purposes of this paragraph (b), the length of time the
motor vehicle diesel fuel in question remained in the motor vehicle
diesel fuel distribution system is deemed to be twenty-five days,
unless a person subject to liability or EPA demonstrates by reasonably
specific showings, by direct or circumstantial evidence, that the non-
complying motor vehicle diesel fuel remained in the distribution system
for fewer than or more than twenty-five days.
(c) Any person liable under Sec. 80.472(a)(1) for blending into
motor vehicle diesel fuel an additive violating the sulfur standard
under Sec. 80.447(a)(1), or of causing another party to violate that
requirement, is subject to a separate day of violation for each and
every day the non-complying motor vehicle diesel fuel remains any place
in the system.
(d) Any person liable under Sec. 80.472(b) for failure to meet, or
causing a failure to meet, a provision of this subpart is liable for a
separate day of violation for each and every day such provision remains
unfulfilled.

PART 86--[AMENDED]

8. The authority citation for part 86 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

9. Section 86.004-2 of subpart A is amended by adding in
alphabetical order a definition of ``U.S.-directed production'' to read
as follows:

Sec. 86.004-2 Definitions.

* * * * *
U.S.-directed production means the engines or vehicles produced by
a manufacturer for which the manufacturer has reasonable assurance that
sale was or will be made to ultimate purchasers in the United States.
* * * * *
10. Section 86.004-40 of subpart A is amended by revising the
introductory text to read as follows:

Sec. 86.004-40 Heavy-duty engine rebuilding practices.

The provisions of this section are applicable to heavy-duty engines
subject to model year 2004 or later standards and are applicable to the
process of engine rebuilding (or rebuilding a portion of an engine or
engine system). The process of engine rebuilding generally includes
disassembly, replacement of multiple parts due to wear, and reassembly,
and also may include the removal of the engine from the vehicle and
other acts associated with rebuilding an engine. Any deviation from the
provisions contained in this section is a prohibited act under section
203(a)(3) of the Clean Air Act (42 U.S.C. 7522(a)(3)).
* * * * *
11. A new Sec. 86.007-10 is added to subpart A to read as follows:

Sec. 86.007-10 Emission standards for 2007 and later model year Otto-
cycle heavy-duty engines and vehicles.

This Sec. 86.007-10 includes text that specifies requirements that
differ from Sec. 86.099-10. Where a paragraph in Sec. 86.099-10 is
identical and applicable to Sec. 86.007-10, this may be indicated by
specifying the corresponding paragraph and the statement ``[Reserved].
For guidance see Sec. 86.099-10.''
(a)(1) Exhaust emissions from new 2007 and later model year Otto-
cycle HDEs shall not exceed:
(i)(A) Oxides of Nitrogen (NO_X). 0.20 grams per brake
horsepower-hour (0.075 grams per megajoule).
(B) A manufacturer may elect to include any or all of its Otto-
cycle HDE families in any or all of the NO_X and
NO_X plus NMHC emissions ABT programs for HDEs, within the
restrictions described in Sec. 86.007-15 or Sec. 86.004-15. If the
manufacturer elects to include engine families in any of these
programs, the NO_X FEL may not exceed 0.50 grams per brake
horsepower-hour (0.19 grams per megajoule). This ceiling value applies
whether credits for the family are derived from averaging, banking, or
trading programs.
(ii)(A) Non-methane Hydrocarbons (NMHC) for engines fueled with
either gasoline, natural gas, or liquefied petroleum gas. 0.14 grams
per brake horsepower-hour (0.052 gram per megajoule).
(B) Non-methane Hydrocarbon Equivalent (NMHCE) for engines fueled
with methanol. 0.14 grams per brake

[[Page 35552]]

horsepower-hour (0.052 gram per megajoule).
(iii)(A) Carbon monoxide. 14.4 grams per brake horsepower-hour
(5.36 grams per megajoule).
(B) Idle Carbon Monoxide. For all Otto-cycle HDEs utilizing
aftertreatment technology: 0.50 percent of exhaust gas flow at curb
idle.
(iv) Particulate. 0.01 gram per brake horsepower-hour (0.0037 gram
per megajoule).
(v) Formaldehyde. 0.016 grams per brake horsepower-hour (0.0060
gram per megajoule)
(2) The standards set forth in paragraph (a)(1) of this section
refer to the exhaust emitted over the operating schedule set forth in
paragraph (f)(1) of appendix I to this part, and measured and
calculated in accordance with the procedures set forth in subpart N or
P of this part.
(3) [Reserved]
(4) [Reserved]
(b) Evaporative emissions from heavy-duty vehicles shall not exceed
the following standards. The standards apply equally to certification
and in-use vehicles. The spitback standard also applies to newly
assembled vehicles. For certification vehicles only, manufacturers may
conduct testing to quantify a level of nonfuel background emissions for
an individual test vehicle. Such a demonstration must include a
description of the source(s) of emissions and an estimated decay rate.
The demonstrated level of nonfuel background emissions may be
subtracted from emission test results from certification vehicles if
approved in advance by the Administrator.
(1) Hydrocarbons (for vehicles equipped with gasoline-fueled,
natural gas-fueled or liquefied petroleum gas-fueled engines). (i) For
vehicles with a Gross Vehicle Weight Rating of up to 14,000 lbs:
(A)(1) For the full three-diurnal test sequence described in
Sec. 86.1230-96, diurnal plus hot soak measurements: 1.4 grams per
test.
(2) For the supplemental two-diurnal test sequence described in
Sec. 86.1230-96, diurnal plus hot soak measurements (gasoline-fueled
vehicles only): 1.75 grams per test.
(B) Running loss test (gasoline-fueled vehicles only): 0.05 grams
per mile.
(C) Fuel dispensing spitback test (gasoline-fueled vehicles only):
1.0 gram per test.
(ii) For vehicles with a Gross Vehicle Weight Rating of greater
than 14,000 lbs:
(A)(1) For the full three-diurnal test sequence described in
Sec. 86.1230-96, diurnal plus hot soak measurements: 1.9 grams per
test.
(2) For the supplemental two-diurnal test sequence described in
Sec. 86.1230-96, diurnal plus hot soak measurements (gasoline-fueled
vehicles only): 2.3 grams per test.
(B) Running loss test (gasoline-fueled vehicles only): 0.05 grams
per mile.
(2) Total Hydrocarbon Equivalent (for vehicles equipped with
methanol-fueled engines). (i) For vehicles with a Gross Vehicle Weight
Rating of up to 14,000 lbs:
(A)(1) For the full three-diurnal test sequence described in
Sec. 86.1230-96, diurnal plus hot soak measurements: 1.4 grams carbon
per test.
(2) For the supplemental two-diurnal test sequence described in
Sec. 86.1230-96, diurnal plus hot soak measurements: 1.75 grams carbon
per test.
(B) Running loss test: 0.05 grams carbon per mile.
(C) Fuel dispensing spitback test: 1.0 gram carbon per test.
(ii) For vehicles with a Gross Vehicle Weight Rating of greater
than 14,000 lbs:
(A)(1) For the full three-diurnal test sequence described in
Sec. 86.1230-96, diurnal plus hot soak measurements: 1.9 grams carbon
per test.
(2) For the supplemental two-diurnal test sequence described in
Sec. 86.1230-96, diurnal plus hot soak measurements: 2.3 grams carbon
per test.
(B) Running loss test: 0.05 grams carbon per mile.
(3)(i) For vehicles with a Gross Vehicle Weight Rating of up to
26,000 lbs, the standards set forth in paragraphs (b)(1) and (b)(2) of
this section refer to a composite sample of evaporative emissions
collected under the conditions and measured in accordance with the
procedures set forth in subpart M of this part.
(ii) For vehicles with a Gross Vehicle Weight Rating of greater
than 26,000 lbs., the standards set forth in paragraphs (b)(1)(ii) and
(b)(2)(ii) of this section refer to the manufacturer's engineering
design evaluation using good engineering practice (a statement of which
is required in Sec. 86.098-23(b)(4)(ii)).
(4) All fuel vapor generated in a gasoline-or methanol-fueled
heavy-duty vehicle during in-use operations shall be routed exclusively
to the evaporative control system (e.g., either canister or engine
purge). The only exception to this requirement shall be for
emergencies.
(c) No crankcase emissions shall be discharged into the ambient
atmosphere from any new 2007 or later model year Otto-cycle HDE.
(d) Every manufacturer of new motor vehicle engines subject to the
standards prescribed in this section shall, prior to taking any of the
actions specified in section 203(a)(1) of the Act, test or cause to be
tested motor vehicle engines in accordance with applicable procedures
in subpart N or P of this part to ascertain that such test engines meet
the requirements of this section. (e)[Reserved]. For guidance see
Sec. 86.099-10.
12. A new Sec. 86.007-11 is added to subpart A to read as follows:

Sec. 86.007-11 Emission standards for 2007 and later model year diesel
heavy-duty engines and vehicles.

Section 86.007-11 includes text that specifies requirements that
differ from Sec. 86.004-11. Where a paragraph in Sec. 86.004-11 is
identical and applicable to Sec. 86.007-11, this may be indicated by
specifying the corresponding paragraph and the statement ``[Reserved].
For guidance see Sec. 86.004-11.''
(a)(1) Exhaust emissions from new 2007 and later model year diesel
HDEs shall not exceed the following:
(i)(A) Oxides of Nitrogen (NO_X). 0.20 grams per brake
horsepower-hour (0.075 gram per megajoule).
(B) A manufacturer may elect to include any or all of its diesel
HDE families in any or all of the NO_X and NO_X
plus NMHC emissions ABT programs for HDEs, within the restrictions
described in Sec. 86.007-15 or Sec. 86.004-15. If the manufacturer
elects to include engine families in any of these programs, the
NO_X FELs may not exceed 0.50 grams per brake horsepower-hour
(0.19 grams per megajoule). This ceiling value applies whether credits
for the family are derived from averaging, banking, or trading
programs.
(ii)(A) Non-methane Hydrocarbons (NMHC) for engines fueled with
either diesel fuel, natural gas, or liquefied petroleum gas. 0.14 grams
per brake horsepower-hour (0.052 gram per megajoule).
(B) Non-methane Hydrocarbon Equivalent ( NMHCE) for engines fueled
with methanol. 0.14 grams per brake horsepower-hour (0.052 gram per
megajoule).
(iii) Carbon monoxide. (A) 15.5 grams per brake horsepower-hour
(5.77 grams per megajoule).
(B) 0.50 percent of exhaust gas flow at curb idle (methanol-,
natural gas-, and liquefied petroleum gas-fueled diesel HDEs only).
(iv) Particulate. (A) 0.01 gram per brake horsepower-hour (0.0037
gram per megajoule).
(B) A manufacturer may elect to include any or all of its diesel
HDE families in any or all of the particulate ABT programs for HDEs,
within the

[[Page 35553]]

restrictions described in Sec. 86.007-15 or superseding applicable
sections. If the manufacturer elects to include engine families in any
of these programs, the particulate FEL may not exceed 0.02 gram per
brake horsepower-hour (0.0075 gram per megajoule).
(v) Formaldehyde. 0.016 grams per brake horsepower-hour (0.0060
gram per megajoule).
(2) The standards set forth in paragraph (a)(1) of this section
refer to the exhaust emitted over the operating schedule set forth in
paragraph (f)(2) of appendix I to this part, and measured and
calculated in accordance with the procedures set forth in subpart N or
P of this part, except as noted in Sec. 86.007-23(c)(2).
(3)(i) The weighted average exhaust emissions, as determined under
Sec. 86.1360-2004(e)(5) pertaining to the supplemental steady-state
test cycle, for each regulated pollutant shall not exceed 1.0 times the
applicable emission standards or FELs specified in paragraph (a)(1) of
this section.
(ii) Exhaust emissions shall not exceed the Maximum Allowable
Emission Limits (for the corresponding speed and load), as determined
under Sec. 86.1360-2004(f), when the engine is operated in the steady-
state control area defined under Sec. 86.1360-2004(d).
(4)(i) The weighted average emissions, as determined under
Sec. 86.1370 pertaining to the not-to-exceed test procedures, for each
regulated pollutant shall not exceed 1.25 times the applicable emission
standards or FELs specified in paragraph (a)(1) of this section, except
as noted in paragraph (a)(4)(ii) of this section.
(ii) Exhaust emissions shall not exceed either the Maximum
Allowable Emission Limits (for the corresponding speed and load), as
determined under Sec. 86.1360(f) or the exhaust emissions specified in
paragraph (a)(4)(i) of this section, whichever is numerically lower,
when the engine is operated in the steady-state control area defined
under Sec. 86.1360(d).
(b)[Reserved]. For guidance see Sec. 86.004-11.
(c) No crankcase emissions shall be discharged into the ambient
atmosphere from any new 2007 or later model year diesel HDE.
(d) Every manufacturer of new motor vehicle engines subject to the
standards prescribed in this section shall, prior to taking any of the
actions specified in section 203(a)(1) of the Act, test or cause to be
tested motor vehicle engines in accordance with applicable procedures
in subpart I or N of this part to ascertain that such test engines meet
the requirements of paragraphs (a), (b), (c), and (d) of this section.
(e)[Reserved]. For guidance see Sec. 86.004-11.
(f) Optional phase-in provisions. For model years 2007, 2008, and
2009, manufacturers may certify some of their engine families to the
combined NOx plus NMHC standard applicable to model year 2006 engines
under Sec. 86.004-11, in lieu of the separate NO_X, NMHC, and
formaldehyde standards specified in this section. These engines must
comply with all other requirements applicable to model year 2007
engines.
(1) The following sales limits apply:
(i) For model year 2007, the combined number of engines in the
engine families certified to the 2006 combined NO_X plus NMHC
standard may not exceed 75 percent of the manufacturer's U.S.-directed
production of heavy-duty diesel motor vehicle engines for model year
2007.
(ii) For model year 2008, the combined number of engines in the
engine families certified to the 2006 combined NO_X plus NMHC
standard may not exceed 50 percent of the manufacturer's U.S.-directed
production of heavy-duty diesel motor vehicle engines for model year
2008.
(iii) For model year 2009, the combined number of engines in the
engine families certified to the 2006 combined NO_X plus NMHC
standard may not exceed 25 percent of the manufacturer's U.S.-directed
production of heavy-duty diesel motor vehicle engines for model year
2009.
(2) During the phase-in period, manufacturers may not average
together (as part of the ABT program) engine families certified to the
NO_X plus NMHC standards applicable to model year 2006 and
engine families certified to the separate NO_X and NMHC
standards specified in this section.
(g)(1) Diesel heavy-duty engines and vehicles for sale in Guam,
American Samoa, or the Commonwealth of the Northern Mariana Islands
shall be subject to the same standards and requirements as apply to
2006 model year diesel heavy-duty engines and vehicles, but only if the
vehicle or engine bears a permanently affixed label stating:

THIS ENGINE (or VEHICLE, as applicable) CONFORMS TO US EPA
EMISSION STANDARDS APPLICABLE TO MODEL YEAR 2006. THIS ENGINE (or
VEHICLE, as applicable) DOES NOT CONFORM TO US EPA EMISSION
REQUIREMENTS IN EFFECT AT TIME OF PRODUCTION AND MAY NOT BE IMPORTED
INTO THE UNITED STATES OR ANY TERRITORY OF THE UNITED STATES EXCEPT
GUAM, AMERICAN SAMOA, OR THE COMMONWEALTH OF THE NORTHERN MARIANA
ISLANDS.

(2) The importation or sale of such a vehicle or engine for use at
any location other than Guam, American Samoa, or the Commonwealth of
the Northern Mariana Islands shall be considered a violation of section
203(a)(1) of the Clean Air Act. In addition, vehicles or vehicle
engines subject to this exemption may not subsequently be imported or
sold into any state or territory of the United States other than Guam,
American Samoa, or Commonwealth of the Northern Mariana Islands.
13. A new Sec. 86.007-15 is added to Subpart A to read as follows:

Sec. 86.007-15 NO_X and particulate averaging, trading, and
banking for heavy-duty engines.

Section 86.007-15 includes text that specifies requirements that
differ from Sec. 86.004-15. Where a paragraph in Sec. 86.004-15 is
identical and applicable to Sec. 86.007-15, this may be indicated by
specifying the corresponding paragraph and the statement ``[Reserved].
For guidance see Sec. 86.004-15.''
(a) through (k) [Reserved]. For guidance see Sec. 86.004-15.
(l) The following provisions apply for model year 2007 and later
engines. These provisions apply instead of the provisions of
Sec. 86.004-15 (a) through (k) to the extent that they are in conflict.
(1) Credits are calculated as NO_X credits. Banked
NO_X plus NMHC credits and PM credits generated in prior
model years (before 2007) may not be used in the 2007 and later
NO_X and PM averaging programs, unless:
(i) The engines generating the credits meet all of the applicable
standards listed in Sec. 86.007-10 (a)(1) or Sec. 86.007-11 (a)(1); or
(ii) The engines using the credits are certified under the
Sec. 86.007-11(f).
(2) The FEL must be expressed to the same number of decimal places
as the standard (one-hundredth of a gram per brake horsepower-hour).
(3) Credits are rounded to the nearest one-hundredth of a Megagram.
(4) Credits generated for 2007 and later model year engine families
are not discounted, and do not expire.
14. A new Sec. 86.007-23 is added to Subpart A to read as follows:

Sec. 86.007-23 Required data.

Section 86.007-23 includes text that specifies requirements that
differ from Sec. 86.095-23, Sec. 86.098-23, or Sec. 86.001-23. Where a
paragraph in Sec. 86.095-23, Sec. 86.098-23, or Sec. 86.001-23 is
identical and applicable to Sec. 86.007-23, this may

[[Page 35554]]

be indicated by specifying the corresponding paragraph and the
statement ``[Reserved]. For guidance see Sec. 86.095-23.'',
``[Reserved]. For guidance see Sec. 86.098-23.'', or ``[Reserved]. For
guidance see Sec. 86.001-23.''.

(a) through (b)(1) [Reserved]. For guidance see Sec. 86.098-23.
(b)(2) [Reserved]. For guidance see Sec. 86.001-23.
(b)(3) and (b)(4) [Reserved]. For guidance see Sec. 86.098-23.

(c) Emission data--(1) Certification vehicles. The manufacturer
shall submit emission data (including, methane, methanol, formaldehyde,
and hydrocarbon equivalent, as applicable) on such vehicles tested in
accordance with applicable test procedures and in such numbers as
specified. These data shall include zero-mile data, if generated, and
emission data generated for certification as required under
Sec. 86.000-26(a)(3). In lieu of providing emission data the
Administrator may, on request of the manufacturer, allow the
manufacturer to demonstrate (on the basis of previous emission tests,
development tests, or other information) that the engine will conform
with certain applicable emission standards of this part Standards
eligible for such manufacturer requests are those for idle CO
emissions, smoke emissions, or particulate emissions from methanol-
fueled diesel-cycle certification vehicles, those for particulate
emissions from gasoline-fueled or methanol-fueled Otto-cycle
certification vehicles, and those for formaldehyde emissions from
petroleum-fueled vehicles. Also eligible for such requests are
standards for total hydrocarbon emissions from model year 1994 and
later certification vehicles. By separate request, including
appropriate supporting test data, the manufacturer may request that the
Administrator also waive the requirement to measure particulate or
formaldehyde emissions when conducting Selective Enforcement Audit
testing of Otto-cycle vehicles.
(2) Certification engines. The manufacturer shall submit emission
data on such engines tested in accordance with applicable emission test
procedures of this subpart and in such numbers as specified. These data
shall include zero-hour data, if generated, and emission data generated
for certification as required under Sec. 86.000-26(c)(4). In lieu of
providing emission data on idle CO emissions or particulate emissions
from methanol-fueled diesel-cycle certification engines, on particulate
emissions from Otto-cycle engines, on CO emissions from petroleum-
fueled or methanol-fueled diesel certification engines, or on
formaldehyde emissions from petroleum-fueled engines the Administrator
may, on request of the manufacturer, allow the manufacturer to
demonstrate (on the basis of previous emission tests, development
tests, or other information) that the engine will conform with the
applicable emission standards of this part . In lieu of providing
emission data on smoke emissions from methanol-fueled or petroleum-
fueled diesel certification engines, the Administrator may, on the
request of the manufacturer, allow the manufacturer to demonstrate (on
the basis of previous emission tests, development tests, or other
information) that the engine will conform with the applicable emissions
standards of this part In lieu of providing emissions data on smoke
emissions from petroleum-fueled or methanol-fueled diesel engines, or
on formaldehyde emissions from petroleum-fueled engines when conducting
Selective Enforcement Audit testing under subpart K of this part, the
Administrator may, on separate request of the manufacturer, allow the
manufacturer to demonstrate (on the basis of previous emission tests,
development tests, or other information) that the engine will conform
with the applicable smoke emissions standards of this part.

(d) through (e)(1) [Reserved]. For guidance see Sec. 86.098-23.
(e)(2) and (e)(3) [Reserved]. For guidance see Sec. 86.001-23.
(f) through (g) [Reserved]. For guidance see Sec. 86.095-23.
(h) through (k) [Reserved]. For guidance see Sec. 86.098-23.
(l) [Reserved]. For guidance see Sec. 86.095-23.
(m) [Reserved]. For guidance see Sec. 86.098-23.

15. A new Sec. 86.007-25 is added to Subpart A to read as follows:

Sec. 86.007-25 Maintenance.

Section 86.007-25 includes text that specifies requirements that
differ from Sec. 86.094-25, Sec. 86.098-25, or Sec. 86.004-25. Where a
paragraph in Sec. 86.094-25, Sec. 86.098-25, or Sec. 86.004-25 is
identical and applicable to Sec. 86.007-25, this may be indicated by
specifying the corresponding paragraph and the statement ``[Reserved].
For guidance see Sec. 86.094-25.'', ``[Reserved]. For guidance see
Sec. 86.098-25.'', or ``[Reserved]. For guidance see Sec. 86.004-25.''

(a) through (b)(3)(v)(H) [Reserved]. For guidance see Sec. 86.004-25.
(b)(3)(vi)(A) through (b)(3)(vi)(D) [Reserved]. For guidance see
Sec. 86.094-25.
(b)(3)(vi)(E) through (b)(3)(vi)(J) [Reserved]. For guidance see
Sec. 86.098-25.
(b)(4) introductory text through (b)(4)(iii)(C) [Reserved]. For
guidance see Sec. 86.004-25.

(b)(4)(iii)(D) Particulate trap or trap oxidizer systems including
related components (adjustment and cleaning only for filter element,
replacement of the filter element is not allowed during the useful
life).
(b)(4)(iii)(E) [Reserved]. For guidance see Sec. 86.004-25.
(F) Catalytic converter (adjustment and cleaning only for catalyst
beds, replacement of the bed is not allowed during the useful life).
(b)(4)(iii)(G) through (b)(6) [Reserved]. For guidance see
Sec. 86.004-25.
(b)(7) through (h) [Reserved]. For guidance see Sec. 86.094-25.
16. A new Sec. 86.007-35 is added to Subpart A to read as follows:

Sec. 86.007-35 Labeling.

Section 86.007-35 includes text that specifies requirements that
differ from Sec. 86.095-35. Where a paragraph in Sec. 86.095-35 is
identical and applicable to Sec. 86.007-35, this may be indicated by
specifying the corresponding paragraph and the statement ``[Reserved].
For guidance see Sec. 86.095-35.''.
(a) Introductory text through (a)(1)(iii)(L) [Reserved]. For
guidance see Sec. 86.095-35.
(a)(1)(iii)(M) [Reserved]
(a)(1)(iii)(N)(1) For vehicles exempted from compliance with
certain revised performance warranty procedures, as specified in
Sec. 86.096-21(j), a statement indicating the specific performance
warranty test(s) of 40 CFR part 85, subpart W, not to be performed.
(2) For vehicles exempted from compliance with all revised
performance warranty procedures, as specified in Sec. 86.096-21(k), a
statement indicating:
(i) That none of the performance warranty tests of 40 CFR part 85,
subpart W, is to be performed, and
(ii) The name of the Administrator-approved alternative test
procedure to be performed.
(2) Light-duty truck and heavy-duty vehicles optionally certified
in accordance with the light-duty truck provisions.
(i) A legible, permanent label shall be affixed in a readily
visible position in the engine compartment.
(ii) The label shall be affixed by the vehicle manufacturer who has
been issued the certificate of conformity for such vehicle, in such a
manner that it cannot be removed without destroying or defacing the
label. The label shall not

[[Page 35555]]

be affixed to any equipment which is easily detached from such vehicle.
(iii) The label shall contain the following information lettered in
the English language in block letters and numerals, which shall be of a
color that contrasts with the background of the label:
(A) The label heading: Important Vehicle Information;
(B) Full corporate name and trademark of the manufacturer;
(C) Engine displacement (in cubic inches or liters), engine family
identification, and evaporative/refueling family;
(a)(2)(iii)(D) through (a)(2)(iii)(E) [Reserved]. For guidance see
Sec. 86.095-35.
(a)(2)(iii)(F) [Reserved]
(a)(2)(iii)(G) through (a)(2)(iii)(K) [Reserved]. For guidance see
Sec. 86.095-35.
(a)(2)(iii)(L) [Reserved]
(a)(2)(iii)(M) through (a)(2)(iii)(N) [Reserved]. For guidance see
Sec. 86.095-35.
(a)(2)(iii)(O)(1) For vehicles exempted from compliance with
certain revised performance warranty procedures, as specified in
Sec. 86.096-21(j), a statement indicating the specific performance
warranty test(s) of 40 CFR part 85, subpart W, not to be performed.
(2) For vehicles exempted from compliance with all revised
performance warranty procedures, as specified in Sec. 86.096-21(k), a
statement indicating:
(i) That none of the performance warranty tests of 40 CFR part 85,
subpart W, is to be performed, and
(ii) The name of the Administrator-approved alternative test
procedure to be performed.
(a)(3) heading through (b) [Reserved]. For guidance see
Sec. 86.095-35.
(c) Model year 2007 and later diesel heavy-duty vehicles, and
diesel-fueled Tier 2 vehicles as defined in Subpart S of this Part,
must include permanent readily visible labels on the dashboard (or
instrument panel) and near the fuel inlet that states ``Ultra Low
Sulfur Diesel Fuel Only''.
(d) through (i) [Reserved]. For guidance see Sec. 86.095-35.
17. A new Sec. 86.007-38 is added to Subpart A to read as follows:

Sec. 86.007-38 Maintenance Instructions.

Section 86.007-38 includes text that specifies requirements that
differ from those specified in Sec. 86.094-38 or Sec. 86.004-38. Where
a paragraph in Sec. 86.094-38 or Sec. 86.004-38 is identical and
applicable to Sec. 86.007-38, this may be indicated by specifying the
corresponding paragraph and the statement ``[Reserved]. For guidance
see Sec. 86.094-38.'', or ``[Reserved]. For guidance see Sec. 86.004-
38.''

(a) through (f) [Reserved]. For guidance see Sec. 86.004-38.
(g) [Reserved]. For guidance see Sec. 86.094-38.
(h) [Reserved]. For guidance see Sec. 86.004-38.

(i) For each new diesel-fueled engine subject to the standards
prescribed in Sec. 86.007-11, as applicable, the manufacturer shall
furnish or cause to be furnished to the ultimate purchaser a statement
that ``This engine must be operated only with ultra low sulfur diesel
fuel (i.e., diesel fuel meeting EPA specifications for highway diesel
fuel, including a 15 ppm sulfur cap).''
18. A new Sec. 86.113-07 is added to subpart B to read as follows:

Sec. 86.113-07 Fuel specifications.

Section 86.113-07 includes text that specifies requirements that
differ from Sec. 86.113-94 or Sec. 86.113-04. Where a paragraph in
Sec. 86.113-94 or Sec. 86.113-04 is identical and applicable to
Sec. 86.113-07, this may be indicated by specifying the corresponding
paragraph and the statement ``[Reserved]. For guidance see Sec. 86.113-
94 or ``[Reserved]. For guidance see Sec. 86.113-04''.

(a) [Reserved]. For guidance see Sec. 86.113-04.
(b)(1) [Reserved]. For guidance see Sec. 86.113-94.

(b)(2) Petroleum fuel for diesel vehicles meeting the following
specifications, or substantially equivalent specifications approved by
the Administrator, must be used in exhaust emissions testing. The grade
of petroleum diesel fuel recommended by the engine manufacturer,
commercially designated as ``Type 2-D'' grade diesel, must be used:

----------------------------------------------------------------------------------------------------------------
Item ASTM test method No. Type 2-D
----------------------------------------------------------------------------------------------------------------
(i) Cetane Number................. D613 40-50
----------------------------------------------------------------------------------------------------------------
(ii) Cetane Index................. D976 40-50
----------------------------------------------------------------------------------------------------------------
(iii) Distillation range:
(A) IBP....................... deg.F D86 340-400
( deg.C) (171.1-204.4)
----------------------------------------------------------------------------------------------------------------
(B) 10 pct. point............. deg.F D86 400-460
( deg.C) (204.4-237.8)
----------------------------------------------------------------------------------------------------------------
(C) 50 pct. point............. deg.F D86 470-540
( deg.C) (243.3-282.2)
----------------------------------------------------------------------------------------------------------------
(D) 90 pct. point............. deg.F D86 560-630
( deg.C) (293.3-332.2)
----------------------------------------------------------------------------------------------------------------
(E) EP........................ deg.F D86 610-690
( deg.C) (321.1-365.6)
----------------------------------------------------------------------------------------------------------------
(iv) Gravity...................... deg.API D287 32-37
----------------------------------------------------------------------------------------------------------------
(v) Total sulfur.................. ppm D2622 7-15
----------------------------------------------------------------------------------------------------------------
(vi) Hydrocarbon composition:
Aromatics, minimum (Remainder pct. D5186 27
shall be paraffins,
naphthenes, and olefins).
----------------------------------------------------------------------------------------------------------------

[[Page 35556]]

(vii) Flashpoint, min............. deg.F D93 130
( deg.C) (54.4)
----------------------------------------------------------------------------------------------------------------
(viii) Viscosity.................. centistokes D445 2.0-3.2
----------------------------------------------------------------------------------------------------------------

(3) Petroleum fuel for diesel vehicles meeting the following
specifications, or substantially equivalent specifications approved by
the Administrator, shall be used in service accumulation. The grade of
petroleum diesel fuel recommended by the engine manufacturer,
commercially designated as ``Type 2-D'' grade diesel fuel, shall be
used:

(b)(4) through (g) [Reserved]. For guidance see Sec. 86.113-94.
19. A new Sec. 86.1313-07 of subpart N is added to read as follows:

Sec. 86.1313-07 Fuel specifications.

Section 86.1313-07 includes text that specifies requirements that
differ from Sec. 86.1313-94. Where a paragraph in Sec. 86.1313-94 is
identical and applicable to Sec. 86.1313-07, this may be indicated by
specifying the corresponding paragraph and the statement ``[Reserved].
For guidance see Sec. 86.1313-94.''.
(a) through (b)(1) [Reserved]. For guidance see Sec. 86.1313-94.
(b)(2) Petroleum fuel for diesel engines meeting the specifications
in Table N07-2, or substantially equivalent specifications approved by
the Administrator, shall be used in exhaust emissions testing. The
grade of petroleum fuel used shall be commercially designated as ``Type
2-D'' grade diesel fuel except that fuel commercially designated as
``Type 1-D'' grade diesel fuel may be substituted provided that the
manufacturer has submitted evidence to the Administrator demonstrating
to the Administrator's satisfaction that this fuel will be the
predominant in-use fuel. Such evidence could include such things as
copies of signed contracts from customers indicating the intent to
purchase and use ``Type 1-D'' grade diesel fuel as the primary fuel for
use in the engines or other evidence acceptable to the Administrator.
Table N07-2 follows:

Table N07-2
----------------------------------------------------------------------------------------------------------------
ASTM test
Item method No. Type 1-D Type 2-D
----------------------------------------------------------------------------------------------------------------
(i) Cetane Number............ D613 40-54 40-50
----------------------------------------------------------------------------------------------------------------
(ii) Cetane Index............ D976 40-54 40-50
----------------------------------------------------------------------------------------------------------------
(iii) Distillation range:
(A) IBP.................. F D86 330-390 340-400
(C) (165.6-198.9) (171.1-204.4)
----------------------------------------------------------------------------------------------------------------
(B) 10 pct. point........ F D86 370-430 400-460
(C) 187.8-221.1) (204.4-237.8)
----------------------------------------------------------------------------------------------------------------
(C) 50 pct. point........ F D86 410-480 470-540
C) (210.0-248.9) (243.3-282.2)
----------------------------------------------------------------------------------------------------------------

[[Page 35557]]

(D) 90 pct. point........ F D86 460-520 560-630
(C) (237.8-271-1) (293.3-332.2)
----------------------------------------------------------------------------------------------------------------
(E) EP................... F D86 500-560 610-690
(C) (260.0-293.3) (321.1-365.6)
----------------------------------------------------------------------------------------------------------------
(iv) Gravity................. API D287 40-44 32-37
----------------------------------------------------------------------------------------------------------------
(v) Total sulfur............. ppm D2622 7-15 7-15
----------------------------------------------------------------------------------------------------------------
(vi) Hydrocarbon composition:
Aromatics, minimum pct D5186 8 27
(Remainder shall be
paraffins, naphthenes,
and olefins).
----------------------------------------------------------------------------------------------------------------
(vii) Flashpoint, min........ F 93 120 130
(C) (48.9) (54.4)
----------------------------------------------------------------------------------------------------------------
(viii) Viscosity............. centistokes D445 1.6-2.0 2.0-3.2
----------------------------------------------------------------------------------------------------------------

(3) Petroleum diesel fuel for diesel engines meeting the
specifications in table N07-3, or substantially equivalent
specifications approved by the Administrator, shall be used in service
accumulation. The grade of petroleum diesel fuel used shall be
commercially designated as ``Type 2-D'' grade diesel fuel except that
fuel commercially designated as ``Type 1-D'' grade diesel fuel may be
substituted provided that the manufacturer has submitted evidence to
the Administrator demonstrating to the Administrator's satisfaction
that this fuel will be the predominant in-use fuel. Such evidence could
include such things as copies of signed contracts from customers
indicating the intent to purchase and use ``Type 1-D'' grade diesel
fuel as the primary fuel for use in the engines or other evidence
acceptable to the Administrator. Table N07-03 follows:

Table N07-3
----------------------------------------------------------------------------------------------------------------
ASTM test
Item method No. Type 1-D Type 2-D
----------------------------------------------------------------------------------------------------------------
(i) Cetane Number............ D613 40-56 38-58
----------------------------------------------------------------------------------------------------------------
(ii) Cetane Index............ D976 min. 40 min. 40
----------------------------------------------------------------------------------------------------------------
(iii) Distillation range:
90 pct. point............ F D86 440-530 540-630
(C) 226.7-276-7) (293.3-332.2)
----------------------------------------------------------------------------------------------------------------
(iv) Gravity................. API D287 39-45 30-39
----------------------------------------------------------------------------------------------------------------
(v) Total sulfur............. ppm D2622 7-15 7-15
----------------------------------------------------------------------------------------------------------------
(vi) Flashpoint, min......... F D93 130 130
(C) (54.4) (54.4)
----------------------------------------------------------------------------------------------------------------
(vii) Viscosity.............. centistokes D445 1.2-2.2 1.5-4.5
----------------------------------------------------------------------------------------------------------------

(b)(4) through (g) [Reserved]. For guidance see Sec. 86.1313-94.
20. A new Sec. 86.1337-07 is added to subpart N to read as follows:

Sec. 86.1337-07 Engine dynamometer test run.

Section 86.1337-07 includes text that specifies requirements that
differ from Sec. 86.1337-96. Where a paragraph in Sec. 86.1337-96 is
identical and applicable to Sec. 86.1337-07, this may be indicated by
specifying the corresponding paragraph and the statement ``[Reserved].
For guidance see Sec. 86.1337-96.''.

(a) through (c) [Reserved]. For guidance see Sec. 86.1337-96.

(d) For engines equipped with an aftertreatment device that is
intermittently regenerated:
(1) Repeat the ``hot start cycle'' until the regeneration event
occurs;
(2) Complete the ``hot start cycle'' in which the regeneration
event occurs;
(3) Measure emission during each of the ``hot start cycles''; and
(4) Use the measured emission values for the ``hot start cycle''
with the highest emissions as the ``hot start cycle'' emissions for
calculations in Sec. 86.1342. (Note: If the highest emission values for
each pollutant do not occur in the same ``hot start cycle'', then use
the emissions for the cycle in which the emissions come closest to
causing an exceedance of an applicable standard.)

[[Page 35558]]

21. A new Sec. 86.1808-07 is added to subpart S to read as follows:

Sec. 86.1808-07 Maintenance instructions.

Section 86.1808-07 includes text that specifies requirements that
differ from those specified in Sec. 86.1808-01. Where a paragraph in
Sec. 86.1808-01 is identical and applicable to Sec. 86.1808-07, this
may be indicated by specifying the corresponding paragraph and the
statement ``[Reserved]. For guidance see Sec. 86.1808-01.''.

(a) through (f) [Reserved]. For guidance see Sec. 86.1808-01.

(g) For each new diesel-fueled Tier 2 vehicle, the manufacturer
shall furnish or cause to be furnished to the purchaser a statement
that ``This vehicle must be operated only with ultra low sulfur diesel
fuel (i.e., diesel fuel meeting EPA specifications for highway diesel
fuel, including a 15 ppm sulfur cap).''.
22. Section 86.1810-01 is amended by revising the introductory text
to read as follows:

Sec. 86.1810-01 General standards; increase in emissions; unsafe
conditions; waivers.

This section applies to model year 2001 and later light-duty
vehicles and light-duty trucks fueled by gasoline, diesel, methanol,
natural gas and liquefied petroleum gas fuels. This section also
applies to complete heavy-duty vehicles certified according to the
provisions of this subpart. Multi-fueled vehicles (including dual-
fueled and flexible-fueled vehicles) shall comply with all requirements
established for each consumed fuel (or blend of fuels in the case of
flexible fueled vehicles). The standards of this subpart apply to both
certification and in-use vehicles unless otherwise indicated. For Tier
2 and interim non-Tier 2 vehicles, this section also applies to hybrid
electric vehicles and zero emission vehicles. Unless otherwise
specified, requirements and provisions of this subpart applicable to
methanol fueled vehicles are also applicable to Tier 2 and interim non-
Tier 2 ethanol fueled vehicles.
* * * * *
23. A new Sec. 86.1816-07 is added to subpart S, to read as
follows:

Sec. 86.1816-07 Emission standards for complete heavy-duty vehicles.

Section 86.1816-07 includes text that specifies requirements that
differ from those specified in Sec. 86.1816-04.\1\ Where a paragraph in
Sec. 86.1816-04 is identical and applicable to Sec. 86.1816-07, this
may be indicated by specifying the corresponding paragraph and the
statement ``[Reserved]. For guidance see Sec. 86.1816-04.'' This
section applies to 2007 and later model year complete heavy-duty
vehicles (excluding MDPVs) fueled by gasoline, methanol, natural gas
and liquefied petroleum gas fuels except as noted. Multi-fueled
vehicles shall comply with all requirements established for each
consumed fuel. For methanol fueled vehicles, references in this section
to hydrocarbons or total hydrocarbons shall mean total hydrocarbon
equivalents and references to non-methane hydrocarbons shall mean non-
methane hydrocarbon equivalents.
(a) Exhaust emission standards. (1) Exhaust emissions from 2007 and
later model year complete heavy-duty vehicles at and above 8,500 pounds
Gross Vehicle Weight Rating but equal to or less than 10,000 Gross
Vehicle Weight Rating pounds shall not exceed the following standards
at full useful life:
---------------------------------------------------------------------------

\1\ Section 86.1816-04 was proposed to be added at 64 FR 58559,
October 29, 1999.
---------------------------------------------------------------------------

(i) [Reserved]
(ii) Non-methane hydrocarbons. 0.195 grams per mile; this
requirement may be satisfied by measurement of non-methane hydrocarbons
or total hydrocarbons, at the manufacturer's option.
(iii) Carbon monoxide. 7.3 grams per mile.
(iv) Oxides of nitrogen. 0.20 grams per mile.
(v) Particulate. 0.02 grams per mile.
(vi) Formaldehyde. 0.016 grams per mile.
(2) Exhaust emissions from 2007 and later model year complete
heavy-duty vehicles above 10,000 pounds Gross Vehicle Weight Rating but
less than 14,000 pounds Gross Vehicle Weight Rating shall not exceed
the following standards at full useful life:
(i) [Reserved]
(ii) Non-methane hydrocarbons. 0.23 grams per mile; this
requirement may be satisfied by measurement of non-methane hydrocarbons
or total hydrocarbons, at the manufacturer's option.
(iii) Carbon monoxide. 8.1 grams per mile.
(iv) Oxides of nitrogen. 0.40 grams per mile.
(v) Particulate. 0.02 grams per mile.
(vi) Formaldehyde. 0.021 grams per mile.
(b) [Reserved]
(c) [Reserved]
(d) Evaporative emissions. Evaporative hydrocarbon emissions from
gasoline-fueled, natural gas-fueled, liquefied petroleum gas-fueled,
and methanol-fueled complete heavy-duty vehicles shall not exceed the
following standards. The standards apply equally to certification and
in-use vehicles. The spitback standard also applies to newly assembled
vehicles.
(1) For the full three-diurnal test sequence, diurnal plus hot soak
measurements: 1.4 grams per test.
(2) Gasoline and methanol fuel only. For the supplemental two-
diurnal test sequence, diurnal plus hot soak measurements: 1.75 grams
per test.
(3) Gasoline and methanol fuel only. Running loss test: 0.05 grams
per mile.
(4) Gasoline and methanol fuel only. Fuel dispensing spitback test:
1.0 grams per test.
(e) through (h) [Reserved]. For guidance see Sec. 86.1816-04.
24. A new Sec. 86.1824-07 is added to subpart S, to read as
follows:

Sec. 86.1824-07 Durability demonstration procedures for evaporative
emissions.

Section 86.1824-07 includes text that specifies requirements that
differ from those specified in Sec. 86.1801-01. Where a paragraph in
Sec. 86.1824-01 is identical and applicable to Sec. 86.1824-07, this
may be indicated by specifying the corresponding paragraph and the
statement ``[Reserved]. For guidance see Sec. 86.1824-01.''. This
section applies to gasoline-, methanol-, natural gas- and liquefied
petroleum gas-fueled LDV/Ts, MDPVs, and HDVs.
(a) through (f) [Reserved]. For guidance see Sec. 86.1824-01.
25. Section 86.1829-01 is amended by revising paragraph
(b)(1)(iii)(B) and adding paragraph (b)(1)(iii)(F) to read as follows:

[[Page 35559]]

Sec. 86.1829-01 Durability and emission testing requirements; waivers.

* * * * *
(b)* * *(1) * * *
(iii) * * *
(B) In lieu of testing an Otto-cycle light-duty vehicle, light-duty
truck, or heavy-duty vehicle for particulate emissions for
certification, a manufacturer may provide a statement in its
application for certification that such vehicles comply with the
applicable standards. Such a statement must be based on previous
emission tests, development tests, or other appropriate information.
* * * * *
(F) In lieu of testing a petroleum-fueled heavy-duty vehicle for
formaldehyde emissions for certification, a manufacturer may provide a
statement in its application for certification that such vehicles
comply with the applicable standards. Such a statement must be based on
previous emission tests, development tests, or other appropriate
information.
* * * * *
[FR Doc. 00-12952 Filed 6-1-00; 8:45 am]
BILLING CODE 6560-50-P

Notices For
2009
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2002
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1994

[[pp. 35529-35559]] Control of Air Pollution From New Motor Vehicles: Proposed Heavy-

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