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Electronic Code of Federal Regulations

e-CFR Data is current as of August 28, 2014

Title 40Chapter ISubchapter CPart 80 → Subpart I


Title 40: Protection of Environment
PART 80—REGULATION OF FUELS AND FUEL ADDITIVES


Subpart I—Motor Vehicle Diesel Fuel; Nonroad, Locomotive, and Marine Diesel Fuel; and ECA Marine Fuel


Contents

General Information

§80.500   What are the implementation dates for the motor vehicle diesel fuel sulfur control program?
§80.501   What fuel is subject to the provisions of this subpart?
§80.502   What definitions apply for purposes of this subpart?
§§80.503-80.509   [Reserved]
§80.510   What are the standards and marker requirements for NRLM diesel fuel and ECA marine fuel?
§80.511   What are the per-gallon and marker requirements that apply to NRLM diesel fuel, ECA marine fuel, and heating oil downstream of the refiner or importer?
§80.512   May an importer treat diesel fuel as blendstock?
§80.513   What provisions apply to transmix processing facilities and pipelines that produce diesel fuel from pipeline interface?
§§80.514-80.519   [Reserved]

Motor Vehicle Diesel Fuel Standards and Requirements

§80.520   What are the standards and dye requirements for motor vehicle diesel fuel?
§80.521   What are the standards and identification requirements for diesel fuel additives?
§80.522   May used motor oil be dispensed into diesel motor vehicles or nonroad diesel engines?
§80.523   [Reserved]
§80.524   What sulfur content standard applies to motor vehicle diesel fuel downstream of the refinery or importer?
§80.525   What requirements apply to kerosene blenders?
§80.526   [Reserved]
§80.527   Under what conditions may motor vehicle diesel fuel subject to the 15 ppm sulfur standard be downgraded to motor vehicle diesel fuel subject to the 500 ppm sulfur standard?
§§80.528-80.529   [Reserved]

Temporary Compliance Option

§80.530   Under what conditions can 500 ppm motor vehicle diesel fuel be produced or imported after May 31, 2006?
§80.531   How are motor vehicle diesel fuel credits generated?
§80.532   How are motor vehicle diesel fuel credits used and transferred?
§80.533   How does a refiner or importer apply for a motor vehicle or non-highway baseline for the generation of NRLM credits or the use of the NRLM small refiner compliance options?
§80.534   [Reserved]
§80.535   How are NRLM diesel fuel credits generated?
§80.536   How are NRLM diesel fuel credits used and transferred?
§§80.537-80.539   [Reserved]

Geographic Phase-In Provisions

§80.540   How may a refiner be approved to produce gasoline under the GPA gasoline sulfur standards in 2007 and 2008?
§§80.541-80.549   [Reserved]

Small Refiner Hardship Provisions

§80.550   What is the definition of a motor vehicle diesel fuel small refiner or a NRLM diesel fuel small refiner under this subpart?
§80.551   How does a refiner obtain approval as a small refiner under this subpart?
§80.552   What compliance options are available to motor vehicle diesel fuel small refiners?
§80.553   Under what conditions may the small refiner gasoline sulfur standards be extended for a small refiner of motor vehicle diesel fuel?
§80.554   What compliance options are available to NRLM diesel fuel small refiners?
§80.555   What provisions are available to a large refiner that acquires a small refiner or one or more of its refineries?
§§80.556-80.559   [Reserved]

Other Hardship Provisions

§80.560   How can a refiner seek temporary relief from the requirements of this subpart in case of extreme hardship circumstances?
§80.561   How can a refiner or importer seek temporary relief from the requirements of this subpart in case of extreme unforeseen circumstances?
§§80.562-80.569   [Reserved]

Labeling Requirements

§80.570   What labeling requirements apply to retailers and wholesale purchaser-consumers of diesel fuel beginning June 1, 2006?
§80.571   What labeling requirements apply to retailers and wholesale purchaser-consumers of NRLM diesel fuel or heating oil beginning June 1, 2007?
§80.572   What labeling requirements apply to retailers and wholesale purchaser-consumers of Motor Vehicle, NR, LM and NRLM diesel fuel and heating oil beginning June 1, 2010?
§80.573   What labeling requirements apply to retailers and wholesale purchaser-consumers of NRLM diesel fuel and heating oil beginning June 1, 2012?
§80.574   What labeling requirements apply to retailers and wholesale purchaser-consumers of ECA marine fuel beginning June 1, 2014?
§§80.575-80.579   [Reserved]

Sampling and Testing

§80.580   What are the sampling and testing methods for sulfur?
§80.581   What are the batch testing and sample retention requirements for motor vehicle diesel fuel, NRLM diesel fuel, and ECA marine fuel?
§80.582   What are the sampling and testing methods for the fuel marker?
§80.583   What alternative sampling and testing requirements apply to importers who transport motor vehicle diesel fuel, NRLM diesel fuel, or ECA marine fuel by truck or rail car?
§80.584   What are the precision and accuracy criteria for approval of test methods for determining the sulfur content of motor vehicle diesel fuel, NRLM diesel fuel, and ECA marine fuel?
§80.585   What is the process for approval of a test method for determining the sulfur content of diesel or ECA marine fuel?
§80.586   What are the record retention requirements for test methods approved under this subpart?
§§80.587-80.589   [Reserved]

Recordkeeping and Reporting Requirements

§80.590   What are the product transfer document requirements for motor vehicle diesel fuel, NRLM diesel fuel, heating oil, ECA marine fuel, and other distillates?
§80.591   What are the product transfer document requirements for additives to be used in diesel fuel?
§80.592   What records must be kept by entities in the motor vehicle diesel fuel and diesel fuel additive distribution systems?
§80.593   What are the reporting requirements for refiners and importers of motor vehicle diesel fuel subject to temporary refiner relief standards?
§80.594   What are the pre-compliance reporting requirements for motor vehicle diesel fuel?
§80.595   How does a small or GPA refiner apply for a motor vehicle diesel fuel volume baseline for the purpose of extending their gasoline sulfur standards?
§80.596   How is a refinery motor vehicle diesel fuel volume baseline calculated?
§80.597   What are the registration requirements?
§80.598   What are the designation requirements for refiners, importers, and distributors?
§80.599   How do I calculate volume balances for designation purposes?
§80.600   What records must be kept for purposes of the designate and track provisions?
§80.601   What are the reporting requirements for purposes of the designate and track provisions?
§80.602   What records must be kept by entities in the NRLM diesel fuel, ECA marine fuel, and diesel fuel additive production, importation, and distribution systems?
§80.603   What are the pre-compliance reporting requirements for NRLM diesel fuel?
§80.604   What are the annual reporting requirements for refiners and importers of NRLM diesel fuel?

Exemptions

§80.605   [Reserved]
§80.606   What national security exemption applies to fuels covered under this subpart?
§80.607   What are the requirements for obtaining an exemption for diesel fuel or ECA marine fuel used for research, development or testing purposes?
§80.608   What requirements apply to diesel fuel and ECA marine fuel for use in the Territories?
§80.609   [Reserved]

Violation Provisions

§80.610   What acts are prohibited under the diesel fuel sulfur program?
§80.611   What evidence may be used to determine compliance with the prohibitions and requirements of this subpart and liability for violations of this subpart?
§80.612   Who is liable for violations of this subpart?
§80.613   What defenses apply to persons deemed liable for a violation of a prohibited act under this subpart?
§80.614   What are the alternative defense requirements in lieu of §80.613(a)(1)(vi)?
§80.615   What penalties apply under this subpart?
§80.616   What are the enforcement exemptions for California diesel distributed within the State of California?
§80.617   How may California diesel fuel be distributed or sold outside of the State of California?
§§80.618-80.619   [Reserved]

Provisions for Foreign Refiners and Importers for Motor Vehicle Diesel Fuel Subject to a Temporary Compliance Option or Hardship Provision

§80.620   What are the additional requirements for diesel fuel or distillates produced by foreign refineries subject to a temporary refiner compliance option, hardship provisions, or motor vehicle or NRLM diesel fuel credit provisions?

Source: 66 FR 5136, Jan. 18, 2001, unless otherwise noted.

General Information

§80.500   What are the implementation dates for the motor vehicle diesel fuel sulfur control program?

The implementation dates for standards for motor vehicle diesel fuel and diesel fuel additives, and for other provisions of this subpart, are as follows:

(a) Implementation date for standards applicable to production or importation of motor vehicle diesel fuel, and to motor vehicle diesel fuel additives. Except as provided in paragraph (d) of this section, beginning June 1, 2006:

(1) The standards and requirements under §80.520(a) and (b) shall apply to any motor vehicle diesel fuel produced or imported by any refiner or importer; and

(2) The standards and requirements under §80.521 shall apply to any motor vehicle diesel fuel additive.

(b) Implementation date for standards applicable to motor vehicle diesel fuel downstream of the refinery or importer. Except as provided in paragraphs (c) and (d) of this section, beginning September 1, 2006, the standards and requirements under §80.520(a) shall apply to any motor vehicle diesel fuel at any downstream location.

(c) Implementation date for standards applicable to motor vehicle diesel fuel at retail outlets and wholesale purchaser-consumer facilities. Except as provided in paragraph (d) of this section, beginning October 15, 2006, the standards and requirements under §80.520(a) shall apply to any motor vehicle diesel fuel at any retail outlet or wholesale purchaser-consumer facility.

(d) Implementation date for motor vehicle diesel fuel subject to the 500 ppm sulfur content standard in §80.520(c). (1) Beginning June 1, 2006, the sulfur content standard of §80.520(c) shall apply to motor vehicle diesel fuel, but only where authorized under, and subject to, an applicable provision of this Subpart.

(2) Beginning June 1, 2010, the sulfur content standard of §80.520(c) shall no longer apply to any motor vehicle diesel fuel produced or imported by any refiner or importer.

(3) Beginning October 1, 2010, the sulfur content standard of §80.520(c) shall no longer apply to any motor vehicle diesel fuel at any downstream location other than a retail or wholesale purchaser-consumer facility.

(4) Beginning December 1, 2010, the sulfur content standard of §80.520(c) shall no longer apply to any motor vehicle diesel fuel.

(e) Other provisions. All other provisions of this subpart apply beginning June 1, 2006, unless another date is specified.

[66 FR 5136, Jan. 18, 2001, as amended at 69 FR 39168, June 29, 2004; 70 FR 70509, Nov. 22, 2005]

§80.501   What fuel is subject to the provisions of this subpart?

(a) Included fuel and additives. The provisions of this subpart apply to the following fuels and additives except as specified in paragraph (b) of this section:

(1) Motor vehicle diesel fuel.

(2) Nonroad, locomotive, or marine diesel fuel.

(3) Diesel fuel additives.

(4) Heating oil.

(5) ECA marine fuel.

(6) Other distillate fuels.

(7) Motor oil that is used as or intended for use as fuel in diesel motor vehicles or nonroad diesel engines or is blended with diesel fuel for use in diesel motor vehicles or nonroad diesel engines, including locomotive and marine diesel engines, at any downstream location.

(b) Excluded fuel. The provisions of this subpart do not apply to distillate fuel that is designated for export outside the United States in accordance with §80.598, identified for export by a transfer document as required under §80.590, and that is exported.

[69 FR 39168, June 29, 2004, as amended at 75 FR 22968, Apr. 30, 2010]

§80.502   What definitions apply for purposes of this subpart?

The definitions of §80.2 and the following additional definitions apply to this subpart I:

(a) Entity means any refiner, importer, distributor, retailer or wholesale-purchaser consumer of any distillate fuel (or other product subject to the requirements of this subpart I).

(b) Facility means any place, or series of places, where an entity produces, imports, or maintains custody of any distillate fuel (or other product subject to the requirements of this subpart I) from the time it is received to the time custody is transferred to another entity, except as described in paragraphs (b)(1) through (4) of this section:

(1) Where an entity maintains custody of a batch of diesel fuel (or other product subject to the requirements of this subpart I) from one place in the distribution system to another place (e.g., from a pipeline to a terminal), all owned by the same entity, both places combined are considered to be one single aggregated facility, except where an entity chooses to treat components of such an aggregated facility as separate facilities. The choice made to treat these places as separate facilities may not be changed by the entity during any applicable compliance period. Except as specified in paragraph (b)(2) of this section, where compliance requirements depend upon facility-type, the entire facility must comply with the requirements that apply to its components as follows:

(i) If an aggregated facility includes a refinery, the entire facility must comply with the requirements applicable to refineries.

(ii) If an aggregated facility includes a truck loading terminal but not a refinery, the entire facility must comply with the requirements applicable to truck loading terminals.

(iii) Situations where a refinery is aggregated with a truck loading terminal.

(A) Where a refinery is aggregated with a truck loading terminal, diesel fuel or other product subject to the requirements of this subpart I produced by such refinery and distributed over the truck terminal rack must be included in refinery batches that may be based on shipments to a truck terminal rack tank or on the total volumes delivered to tanker trucks for a period not to exceed 1 calendar month per batch.

(B) Where a refinery is aggregated with a truck loading terminal, diesel fuel or other product subject to the requirements of this subpart I that were imported or produced by another refinery, and that are distributed through the refinery or truck terminal rack, must be treated as previously designated fuel for which the aggregated facility is responsible for all applicable balance and downgrade requirements under §§80.527, 80.598, 80.599 and related recordkeeping and reporting requirements like any other distributor downstream from the refiner or importer.

(2) A refinery or import facility may not be aggregated with facilities that receive fuel from other refineries or import facilities, either directly or indirectly. For example, a refinery may not be aggregated with a terminal that receives any fuel from a common carrier pipeline. However, a refinery may be aggregated with a pipeline and terminal that are owned by the same entity and which receive no fuel from any source other than the refinery. Likewise, a refinery may not be aggregated with a mobile facility that is also carrying another entity's fuel; it may however be aggregated with a mobile facility that does not receive fuel from any source other than the refinery. If a refinery or import facility is aggregated with other facilities, then the aggregated facility is treated as a refinery or import facility.

(3) Retail outlets or wholesale purchaser consumers may not be aggregated with any other facility.

(4) Mobile components and mobile facilities. (i) Where an entity maintains custody of diesel fuel in one or more mobile components (e.g., rail, barge, shipping, or trucking operations), the mobile components may be aggregated as a single facility. Mobile components may also be aggregated with a facility from which they receive fuel or a facility to which they deliver fuel. However, mobile components may not be aggregated with both a facility from which they receive fuel and a facility to which they deliver fuel.

(ii) When an entity maintains title to, but not custody of, diesel fuel in one or more mobile components, the entity may treat the mobile component(s) as a facility under this paragraph (b), but only for the fuel to which the entity has title. In the event that title changes while a mobile component is in transport (but the fuel physically remains in the same mobile facility), the original entity that had title to the fuel continues to be responsible for the designate and track requirements until custody of the fuel is transferred from the mobile facility.

(5) An individual refinery or contiguous pipeline may not be subdivided into more than one facility. An individual terminal may not be subdivided into more than one facility unless approved by the Administrator.

(c) Truck loading terminal means any facility that dyes NRLM diesel fuel or ECA marine fuel, pays taxes on motor vehicle diesel fuel per IRS code (26 CFR part 48), or adds a fuel marker pursuant to §80.510 to heating oil and delivers diesel fuel or heating oil into trucks for delivery to retail or ultimate consumer locations.

(d) Batch means a quantity of diesel fuel (or other product subject to the requirements of this subpart I) which is homogeneous with regard to those properties that are specified for MVNRLM diesel fuel or ECA marine fuel under this subpart I, has the same designation under this subpart I (if applicable), and whose custody is transferred from one facility to another facility.

(1) In the case of aggregated facilities consisting of a refinery and a truck loading terminal, a batch may be defined by one of the following methods:

(i) The sum of the deliveries from the truck loading terminal rack to trucks for periods not to exceed 1 month;

(ii) Each individual truck or truck compartment; or

(iii) For refineries with “certification tanks” where testing is performed and “rack tanks” that feed the truck loading terminal rack, each transfer from the certification tank to the rack tank. If this method of determining a batch is selected, it must be the sole method used and must be performed such that no double-counting or undercounting of volumes occurs.

(2) [Reserved]

(e) Downstream location means any point in the diesel fuel distribution system that is downstream of refineries and import facilities, for example, diesel fuel at facilities of distributors, carriers, retailers, kerosene blenders, and wholesale purchaser-consumers.

(f) Definition of PADD. For the purposes of this subpart only, the following definitions of PADDs apply:

(1) The following States are included in PADD I:

Connecticut

Delaware

District of Columbia

Florida

Georgia

Maine

Maryland

Massachusetts

New Hampshire

New Jersey

New York

North Carolina

Pennsylvania

Rhode Island

South Carolina

Vermont

Virginia

West Virginia

(2) The following States are included in PADD II:

Illinois

Indiana

Iowa

Kansas

Kentucky

Michigan

Minnesota

Missouri

Nebraska

North Dakota

Ohio

Oklahoma

South Dakota

Tennessee

Wisconsin

(3) The following States are included in PADD III:

Alabama

Arkansas

Louisiana

Mississippi

New Mexico

Texas

(4) The following States are included in PADD IV:

Colorado

Idaho

Montana

Utah

Wyoming

(5) The following States are included in PADD V:

Alaska

Arizona

California

Hawaii

Nevada

Oregon

Washington

(6) The following areas are included in PADD VI:

U.S. Virgin Islands

Commonwealth of Puerto Rico

(g) Emission Control Area. An Emission Control Area (ECA), for the purposes of this subpart, means the “ECA” as defined in 40 CFR 1043.20 as well as “ECA associated area” as defined in 40 CFR 1043.20.

(h) Marine diesel engine. For the purposes of this subpart I only, marine diesel engine means a diesel engine installed on a Category 1 (C1) or Category 2 (C2) marine vessel.

[69 FR 39168, June 29, 2004, as amended at 70 FR 70509, Nov. 22, 2005; 71 FR 25716, May 1, 2006; 75 FR 22969, Apr. 30, 2010]

§§80.503-80.509   [Reserved]

§80.510   What are the standards and marker requirements for NRLM diesel fuel and ECA marine fuel?

(a) Beginning June 1, 2007. Except as otherwise specifically provided in this subpart, all NRLM diesel fuel is subject to the following per-gallon standards:

(1) Sulfur content. 500 parts per million (ppm) maximum.

(2) Cetane index or aromatic content, as follows:

(i) A minimum cetane index of 40; or

(ii) A maximum aromatic content of 35 volume percent.

(b) Beginning June 1, 2010. Except as otherwise specifically provided in this subpart, all NR and LM diesel fuel is subject to the following per-gallon standards:

(1) Sulfur content.

(i) 15 ppm maximum for NR diesel fuel.

(ii) 500 ppm maximum for LM diesel fuel.

(2) Cetane index or aromatic content, as follows:

(i) A minimum cetane index of 40; or

(ii) A maximum aromatic content of 35 volume percent.

(c) Beginning June 1, 2012. Except as otherwise specifically provided in this subpart, all NRLM diesel fuel is subject to the following per-gallon standards:

(1) Sulfur content. 15 ppm maximum.

(2) Cetane index or aromatic content, as follows:

(i) A minimum cetane index of 40; or

(ii) A maximum aromatic content of 35 volume percent.

(d) Marking provisions. From June 1, 2007 through May 31, 2010:

(1) Except as provided for in paragraph (i) of this section, prior to distribution from a truck loading terminal, all heating oil shall contain six milligrams per liter of marker solvent yellow 124.

(2) All motor vehicle and NRLM diesel fuel shall be free of solvent yellow 124.

(3) Any diesel fuel that contains greater than or equal to 0.10 milligrams per liter of marker solvent yellow 124 shall be deemed to be heating oil and shall be prohibited from use in any motor vehicle or nonroad diesel engine (including locomotive, or marine diesel engines).

(4) Except as provided for in paragraph (i) of this section, any diesel fuel, other than jet fuel or kerosene that is downstream of a truck loading terminal, that contains less than 0.10 milligrams per liter of marker solvent yellow 124 shall be considered motor vehicle diesel fuel or NRLM diesel fuel, as appropriate.

(5) Any heating oil that is required to contain marker solvent yellow 124 pursuant to the requirements of this paragraph (d) must also contain visible evidence of dye solvent red 164.

(e) Marking provisions. From June 1, 2010 through May 31, 2012:

(1) Except as provided for in paragraph (i) of this section, prior to distribution from a truck loading terminal, all heating oil and diesel fuel designated as 500 ppm sulfur LM diesel fuel shall contain six milligrams per liter of solvent yellow 124.

(2) All motor vehicle and NR diesel fuel shall be free of marker solvent yellow 124.

(3) Any diesel fuel that contains greater than or equal to 0.10 milligrams per liter of marker solvent yellow 124 shall be deemed to be LM diesel fuel or heating oil, as appropriate, and shall be prohibited from use in any motor vehicle or nonroad diesel engine (except for locomotive or marine diesel engines).

(4) Except as provided for in paragraph (i) of this section, any diesel fuel, other than jet fuel or kerosene that is downstream of a truck loading terminal, that contains less than 0.10 milligrams per liter of marker solvent yellow 124 shall be considered motor vehicle diesel fuel or NR diesel fuel, as appropriate.

(5) Any LM diesel fuel or heating oil that is required to contain marker solvent yellow 124 pursuant to the requirements of this paragraph (e) must also contain visible evidence of dye solvent red 164.

(f) Marking provisions. From June 1, 2012 through November 30, 2014:

(1) Except as provided for in paragraph (i) of this section, prior to distribution from a truck loading terminal, all heating oil shall contain six milligrams per liter of marker solvent yellow 124 from June 1, 2012 through May 31, 2014.

(2) All motor vehicle and NR diesel fuel shall be free of marker solvent yellow 124, and all LM diesel fuel shall be free of marker solvent yellow 124 beginning December 1, 2012.

(3) From June 1, 2012 through November 30, 2012, any diesel fuel that contains greater than or equal to 0.10 milligrams per liter of marker solvent yellow 124 shall be deemed to be either heating oil or 500 ppm sulfur LM diesel fuel and shall be prohibited from use in any motor vehicle or nonroad diesel engine (excluding locomotive, or marine diesel engines).

(4) From December 1, 2012 through November 30, 2014, any diesel fuel that contains greater than or equal to 0.10 milligrams per liter of marker solvent yellow 124 shall be deemed to be heating oil and shall be prohibited from use in any motor vehicle or nonroad diesel engine (including locomotive, or marine diesel engines).

(5) Except as provided for in paragraph (i) of this section, from June 1, 2012 through November 30, 2014, any diesel fuel, other than jet fuel or kerosene that is downstream of a truck loading terminal, that contains less than 0.10 milligrams per liter of marker solvent yellow 124 shall be considered motor vehicle diesel fuel or NRLM diesel fuel, as appropriate.

(6) Any heating oil that is required to contain marker solvent yellow 124 pursuant to the requirements of this paragraph (f) must also contain visible evidence of dye solvent red 164.

(7) Beginning December 1, 2014 there are no requirements or restrictions on the use of marker solvent yellow 124 under this subpart.

(g) Special provisions in this part apply to the following areas:

(1) Northeast/Mid-Atlantic Area, which includes the following States and counties, through May 31, 2014: North Carolina, Virginia, Maryland, Delaware, New Jersey, Connecticut, Rhode Island, Massachusetts, Vermont, New Hampshire, Maine, Washington DC, New York (except for the counties of Chautauqua, Cattaraugus, and Allegany), Pennsylvania (except for the counties of Erie, Warren, McKean, Potter, Cameron, Elk, Jefferson, Clarion, Forest, Venango, Mercer, Crawford, Lawrence, Beaver, Washington, and Greene), and the eight eastern-most counties of West Virginia (Jefferson, Berkeley, Morgan, Hampshire, Mineral, Hardy, Grant, and Pendleton).

(2) Alaska.

(h) Pursuant and subject to the provisions of §80.536, §80.554, §80.560, or §80.561:

(1) Except as provided in paragraph (j) of this section, from June 1, 2007 through May 31, 2010, NRLM diesel fuel produced or imported in full compliance with the requirements of §§80.536, 80.554, 80.560, and 80.561 is exempt from the per-gallon sulfur content standard and cetane or aromatics standard of paragraph (a) of this section.

(2) Except as provided in paragraph (j) of this section, from June 1, 2010 through May 31, 2012 for NR diesel fuel and from June 1, 2012 through May 31, 2014 for NRLM diesel fuel produced or imported in full compliance with the requirements of §§80.536, 80.554, 80.560, and 80.561 is exempt from the per-gallon standards of paragraphs (b) and (c) of this section, but is subject to the per-gallon standards of paragraph (a) of this section.

(i) The marking requirements of paragraphs (d)(1), (d)(4), (e)(1), (e)(4), (f)(1), and (f)(4) of this section do not apply to heating oil, or, for paragraphs (e)(1) and (e)(4) of this section, diesel fuel designated as LM diesel fuel that is distributed from a truck loading terminal located within the areas listed in paragraphs (g)(1) and (g)(2) of this section and is for sale or intended for sale within these areas, or that is distributed from any other truck loading terminal and is for sale or intended for sale within the area listed in (g)(2) of this section.

(j) The provisions of paragraphs (h)(1) and (h)(2) of this section do not apply to diesel fuel sold or intended for sale in the areas listed in paragraph (g)(1) of this section that is produced or imported in full compliance with the requirements of §§80.536 and 80.554 or to diesel fuel sold or intended for sale in the area listed in paragraph (g)(2) of this section that is produced or imported in full compliance with the requirements of §80.536.

(k) Beginning June 1, 2014. All ECA marine fuel is subject to a maximum per-gallon sulfur content of 1,000 ppm.

[69 FR 39168, June 29, 2004, as amended at 70 FR 40895, July 15, 2005; 75 FR 22969, Apr. 30, 2010; 77 FR 61293, Oct. 9, 2012]

§80.511   What are the per-gallon and marker requirements that apply to NRLM diesel fuel, ECA marine fuel, and heating oil downstream of the refiner or importer?

(a) Applicable dates for marker requirements. Beginning June 1, 2006, all NRLM diesel fuel and ECA marine fuel shall contain less than 0.10 milligrams per liter of the marker solvent yellow 124, except for LM diesel fuel subject to the marking requirements of §80.510(e).

(b) Applicable dates for per-gallon standards. (1) Beginning June 1, 2006, all NRLM diesel fuel must comply with the per-gallon sulfur standard for the designation or classification stated on its PTD, pump label, or other documentation. Based on the provisions of §80.510(h) and (j), there is no uniform downstream sulfur standard until the downstream dates identified in paragraphs (b)(3) through (b)(8) of this section.

(2) Except as provided in paragraphs (b)(5) and (b)(8) of this section, beginning December 1, 2010, all NRLM diesel fuel must comply with the cetane index or aromatics standard of §80.510.

(3) Except as provided in paragraphs (b)(5) through (b)(8) of this section, the per-gallon sulfur standard of §80.510(a) shall apply to all NRLM diesel fuel beginning August 1, 2010 for all downstream locations other than retail outlets or wholesale purchaser-consumer facilities, shall apply to all NRLM diesel fuel beginning October 1, 2010 for retail outlets and wholesale purchaser-consumer facilities, and shall apply to all NRLM diesel fuel beginning December 1, 2010 for all locations.

(4) Except as provided in paragraphs (b)(5) through (8) of this section, the per-gallon sulfur standard of §80.510(c) shall apply to all NRLM diesel fuel beginning August 1, 2014 for all downstream locations other than retail outlets or wholesale purchaser-consumer facilities, shall apply to all NRLM diesel fuel beginning October 1, 2014 for retail outlets and wholesale purchaser-consumer facilities, and shall apply to all NRLM diesel fuel beginning December 1, 2014 for all locations. This paragraph (b)(4) does not apply to LM diesel fuel produced from transmix or interface fuel that is sold or intended for sale in areas other than those listed in §80.510(g)(1) or (g)(2), as provided by §80.513(f).

(5) For all NRLM diesel fuel that is sold or intended for sale in the areas listed in §80.510(g)(1), the per-gallon sulfur standard and the cetane index or aromatics standard of 80.510(a) shall apply to all NRLM diesel fuel beginning August 1, 2007 for all downstream locations other than retail outlets or wholesale purchaser-consumer facilities, shall apply to all NRLM diesel fuel beginning October 1, 2007 for retail outlets and wholesale purchaser-consumer facilities, and shall apply to all NRLM diesel fuel beginning December 1, 2007 for all locations.

(6) For all NR diesel fuel that is sold or intended for sale in the areas listed in §80.510(g)(1), the per-gallon sulfur standard of §80.510(b) shall apply to all NR diesel fuel beginning August 1, 2010 for all downstream locations other than retail outlets or wholesale purchaser-consumer facilities, shall apply to all NR diesel fuel beginning October 1, 2010 for retail outlets and wholesale purchaser-consumer facilities, and shall apply to all NR diesel fuel beginning December 1, 2010 for all locations.

(7) For all NRLM diesel fuel that is sold or intended for sale in the areas listed in §80.510(g)(1), the per-gallon sulfur standard of §80.510(c) shall apply to all NRLM diesel fuel beginning August 1, 2012 for all downstream locations other than retail outlets or wholesale purchaser-consumer facilities, shall apply to all NRLM diesel fuel beginning October 1, 2012 for retail outlets and wholesale purchaser-consumer facilities, and shall apply to all NRLM diesel fuel beginning December 1, 2012 for all locations.

(8) The provisions of paragraphs (b)(5) through (b)(7) of this section shall apply for all NRLM or NR diesel fuel that is sold or intended for sale in the area listed in §80.510(g)(2), except for NRLM or NR diesel fuel that is produced in accordance with a compliance plan approved under §80.554.

(9) The per-gallon sulfur standard of §80.510(k) shall apply to all ECA marine fuel beginning August 1, 2014, for all downstream locations other than retail outlets or wholesale purchaser-consumer facilities, shall apply to all ECA marine fuel beginning October 1, 2014, for retail outlets and wholesale purchaser-consumer facilities, and shall apply to all ECA marine fuel beginning December 1, 2014, for all locations.

(10) For the purposes of this subpart, on any occasion where a distributor directly dispenses fuel into vehicles or equipment from a mobile facility such as a tanker truck, the distributor shall be treated as a retailer, and the mobile facility shall be treated as a retail outlet.

[69 FR 39169, June 29, 2004, as amended at 75 FR 22969, Apr. 30, 2010; 77 FR 75879, Dec. 26, 2012; 79 FR 23653, Apr. 28, 2014]

§80.512   May an importer treat diesel fuel as blendstock?

An importer may exclude diesel fuel that it imports from the requirements under this subpart, and instead may designate such diesel fuel as diesel fuel treated as blendstock (DTAB), if all the following conditions are met:

(a) The DTAB must be included in all applicable designation, credit and compliance calculations for diesel fuel for a refinery operated by the same entity that is the importer . That entity must meet all refiner standards and requirements.

(b) The importer entity may not transfer title of the DTAB to another entity until the DTAB has been used to produce diesel fuel and all refiner standards and requirements have been met for the diesel fuel produced.

(c) The refinery at which the DTAB is used to produce diesel fuel must be physically located at either the same terminal at which the DTAB first arrives in the U.S., the import facility, or at a facility to which the DTAB is directly transported from the import facility.

(d) The DTAB must be completely segregated from any other diesel fuel, including any diesel fuel tank bottoms, prior to the point of blending, sampling and testing in the importer entity's refinery operation. The DTAB may, however, be added to a diesel fuel blending tank where the diesel fuel tank bottom is not included as part of the batch volume for a prior batch. In addition, the DTAB may be placed into a storage tank that contains other DTAB imported by that importer. The DTAB also may be discharged into a tank containing finished diesel fuel of the same category as the diesel fuel which will be produced using the DTAB (for example, 15 ppm sulfur undyed or 15 ppm sulfur dyed diesel fuel) provided the blending process is performed in that same tank.

(e) The entity must account for the volume of diesel fuel produced using DTAB in a manner that excludes the volume of any previously designated diesel fuel. The diesel fuel tank bottom may not be included in the company's refinery compliance calculations for that batch of diesel fuel if the fuel in that tank bottom has been previously designated by a refiner or importer. This exclusion of previously designated diesel fuel must be accomplished using the following approach:

(1) Determine the volume of any tank bottom that is previously designated diesel fuel before any diesel fuel production begins.

(2) Add the DTAB plus any blendstock to the storage tank, and completely mix the tank.

(3) Determine the volume and sulfur content of the diesel fuel contained in the storage tank after blending is complete. Mathematically subtract the volume of the tank bottom to determine the volume of the DTAB plus blendstock added, and subsequently transferred to another facility. Such fuel is reported to EPA as a batch of diesel fuel under §§80.593, 80.601, and 80.604.

(4) If previously designated motor vehicle diesel fuel having a sulfur content of 15 ppm or less is blended with DTAB, and the combined product after blending has a sulfur content that exceeds 15 ppm, the importer entity, in its capacity as a refiner, must redesignate all the diesel fuel as 500 ppm sulfur motor vehicle diesel fuel for purposes of the temporary compliance option under §80.530, or other permissible redesignation under §80.598. If #2D 15 ppm sulfur motor vehicle diesel fuel is redesignated as #2D 500 ppm sulfur motor vehicle diesel fuel, such entity must apply the volume of previously designated 15 ppm sulfur diesel fuel, for purposes of its operations as a distributor, to its downgrading limitation under §80.527, if applicable, and for volume balancing purposes under §80.599.

(5) As an alternative to paragraphs (e)(1) through (e)(4) of this section, where an importer has a blending tank that is used only to combine DTAB and blending components, and no previously designated diesel fuel is added to the tank, the importer entity, in its capacity as a refiner, may account for the diesel fuel produced in such a blending tank by sampling and testing for the sulfur content of the batch after DTAB and blendstock are added and mixed, and reporting the volume of diesel fuel transferred from that tank to a different facility, up to the point where a new blend is produced by adding new DTAB and blendstock.

(f) The importer must include the volume and sulfur content of each batch of DTAB in the annual importer reports to EPA, as prescribed under §§80.593, 80.601, and 80.604, but with a notation that the batch is not included in the importer compliance calculations because the product is DTAB. Any DTAB that ultimately is not used in the importer's refinery operation (for example, a tank bottom of DTAB at the conclusion of the refinery operation), must be treated as newly imported diesel fuel, for which all required sampling and testing, and recordkeeping must be accomplished, and included in the importer's compliance calculations for the averaging period when this sampling and testing occurs.

(g) The importer must retain records that reflect the importation, sampling and testing, and physical movement of any DTAB, and must make these records available to EPA on request.

[69 FR 39170, June 29, 2004]

§80.513   What provisions apply to transmix processing facilities and pipelines that produce diesel fuel from pipeline interface?

For purposes of this section, transmix means a mixture of finished fuels, such as pipeline interface, that no longer meets the specifications for a fuel that can be used or sold without further processing or handling. For the purposes of this section, pipeline interface means the mixture between different fuels that abut each other during shipment by pipeline. This section applies to refineries (or other facilities) that produce diesel fuel from transmix by distillation or other refining processes but do not produce diesel fuel by processing crude oil and to pipelines that produce diesel fuel from transmix. This section only applies to the volume of diesel fuel produced from transmix by a transmix processor using these processes, and to the diesel fuel volume produced by a pipeline operator from transmix. This section does not apply to any diesel fuel volume produced by the blending of blendstocks.

(a) From June 1, 2006 through May 31, 2010, motor vehicle diesel fuel produced by a transmix processor is subject to the 500 ppm sulfur standard under §80.520(c).

(b) Beginning June 1, 2010, motor vehicle diesel fuel produced by a transmix processor is subject to the sulfur standard under §80.520(a)(1).

(c) From June 1, 2007 through May 31, 2010, NRLM diesel fuel produced by a transmix processor is exempt from the standards of §80.510(a). This paragraph (c) does not apply to NRLM diesel fuel that is sold or intended for sale in the areas listed in §80.510(g)(1) or (g)(2).

(d) From June 1, 2010 through May 31, 2014, NRLM diesel fuel produced by a transmix processor or a pipeline facility that produces diesel fuel from transmix is subject to the standards under §80.510(a). This paragraph (d) does not apply to NRLM diesel fuel that is sold or intended for sale in the areas listed in §80.510(g)(1) or (g)(2).

(e) From June 1, 2014 and beyond, NRLM diesel fuel produced by a transmix processor and a pipeline facility that produces diesel fuel from transmix is subject to the standards of §80.510(c).

(f) From February 25, 2013 through May 31, 2014, LM diesel fuel produced by a transmix processor or a pipeline facility that produces diesel fuel from transmix that is sold or intended for sale in the area listed in §80.510(g)(1) is subject to the standards of §80.510(a) provided that the conditions in paragraph (h) of this section are satisfied. Diesel fuel produced from transmix that does not meet the conditions in paragraph (h) of this section is subject to the sulfur standard in §80.510(c).

(g) Beginning June 1, 2014, LM diesel fuel produced by a transmix processor or a pipeline facility that produces diesel fuel from transmix is subject to the sulfur standard of §80.510(a), provided that the conditions in paragraph (h) of this section are satisfied. Diesel fuel produced from transmix that does not meet the conditions in paragraph (h) of this section is subject to the sulfur standard in §80.510(c).

(h) The following conditions must be satisfied to allow the production of 500 ppm LM under paragraphs (f) and (g) of this section.

(1) The fuel must be produced from transmix.

(2) The fuel must not be sold or intended for sale in the area listed in §80.510(g)(2) (i.e., Alaska).

(3) A facility producing 500 ppm LM diesel fuel must obtain approval from the Administrator for a compliance plan. The compliance plan must detail how the facility will segregate any 500 ppm LM diesel fuel produced subject to the standards under §80.510(a) from the producer through to the ultimate consumer from fuel having other designations. The compliance plan must demonstrate that the end users of 500 ppm LM will also have access to 15 ppm diesel fuel for use in those engines that require the use of 15 ppm diesel fuel. The compliance plan must identify the entities that handle the 500 ppm LM through to the ultimate consumer. No more than 4 separate entities shall handle the 500 ppm LM between the producer and the ultimate consumer. The compliance plan must also identify all ultimate consumers to whom the refiner supplies the 500 ppm LM diesel fuel. The compliance plan must detail how misfueling of 500 ppm LM into vehicles or equipment that require the use of 15 ppm diesel fuel will be prevented.

(i) Producers of 500 ppm LM diesel fuel must be registered with EPA under §80.597 prior to the distribution of any 500 ppm LM diesel fuel.

(ii) Producers of 500 ppm LM must initiate a PTD that meets the requirements in paragraph (h)(3)(iii) of this section.

(iii) All transfers of 500 ppm LM diesel fuel must be accompanied by a PTD that clearly and accurately states the fuel designation; the PTD must also meet all other requirements of §80.590.

(iv) Batches of 500 ppm LM may be shipped by pipeline provided that such batches do not come into physical contact in the pipeline with batches of other distillate fuel products that have a sulfur content greater than 15 ppm.

(v) The volume of 500 ppm LM shipped via pipeline under paragraph (h)(3)(iv) of this section may swell by no more than 2% upon delivery to the next party. Such a volume increase may only be due to volume swell due to temperature differences when the volume was measured or due to normal pipeline interface cutting practices notwithstanding the requirement under paragraph (h)(3)(iv) of this section.

(vi) Entities that handle 500 ppm LM must calculate the balance of 500 ppm LM received versus the volume delivered and used on an annual basis.

(vii) The records required in this section must be maintained for five years, by each entity that handles 500 ppm LM and be made available to EPA upon request.

(4) All parties that take custody of 500 ppm LM must segregate the product from other fuels and observe the other requirements in the compliance plan approved by EPA pursuant to paragraph (h)(3) of this section.

[69 FR 39171, June 29, 2004, as amended at 75 FR 22969, Apr. 30, 2010; 77 FR 75879, Dec. 26, 2012]

§§80.514-80.519   [Reserved]

Motor Vehicle Diesel Fuel Standards and Requirements

§80.520   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) maximum, except as provided in paragraph (c) of this section;

(2) Cetane index and aromatic content. (i) A minimum cetane index of 40; or

(ii) A maximum aromatic content of 35 volume percent.

(b) Dye requirements. (1) All motor vehicle diesel fuel shall be free of visible evidence 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. All motor vehicle diesel fuel shall be free of yellow solvent 124.

(2) Until June 1, 2010, any #1D or #2D distillate, or NP diesel fuel that does not show visible evidence 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 distillate fuel designated or classified as any of the following:

(i) For use only in the State of Alaska, as provided under 40 CFR 69.51.

(ii) For use under a national security exemption under §80.606 or for use only in a research and development testing program exempted under §80.607.

(iii) For use in the U.S. Territories as provided under §80.608.

(iv) Jet fuel meeting the definition under §80.2.

(v) Kerosene meeting the definition under §80.2.

(vi) Diesel fuel that is produced beginning June 1, 2006, with a sulfur level less than or equal to 500 ppm, and designated as NRLM or LM that has not yet been distributed from a truck loading terminal or bulk terminal to a retail outlet, wholesale purchaser-consumer or ultimate consumer.

(c) Pursuant and subject to the provisions of §§80.530-80.532, 80.552(a), 80.560-80.561, and 80.620, only motor vehicle diesel fuel produced or imported in full compliance with the requirements of those provisions is subject to the following per-gallon standard for sulfur content: 500 ppm maximum.

[66 FR 5136, Jan. 18, 2001, as amended at 69 FR 39171, June 29, 2004; 71 FR 25717, May 1, 2006]

§80.521   What are the standards and identification requirements for diesel fuel additives?

(a) Except as provided in paragraph (b) of this section, any diesel fuel additive that is added to, intended for adding to, used in, or offered for use in any MVNRLM diesel fuel subject to the 15 ppm sulfur content standards of §80.510(b), §80.510(c), or §80.520(a) at any downstream location must—

(1) Have a sulfur content less than or equal to 15 ppm.

(2) Be accompanied by a product transfer document pursuant to §80.591 indicating that the additive complies with the 15 ppm sulfur standard for diesel fuel, except for those diesel fuel additives which are only sold in containers for use by the ultimate consumer of diesel fuel and which are subject to the requirements of §80.591(d).

(b) Any diesel fuel additive that is added to, intended for adding to, used in, or offered for use in diesel fuel subject to the 15 ppm sulfur content standards of §80.510(b) or (c) or §80.520(a) may have a sulfur content exceeding 15 ppm provided that each of the following conditions are met:

(1) The additive is added to or used in the diesel fuel in a quantity less than one percent by volume of the resultant additive/diesel fuel mixture;

(2) The product transfer document complies with the informational requirements of §80.591; and

(3) The additive is not used or intended for use by an ultimate consumer in diesel motor vehicles or nonroad diesel engines.

[69 FR 39171, June 29, 2004]

§80.522   May used motor oil be dispensed into diesel motor vehicles or nonroad diesel engines?

No person may introduce used motor oil, or used motor oil blended with diesel fuel, into the fuel system of model year 2007 or later diesel motor vehicles or model year 2011 or later nonroad diesel engines (not including locomotive or marine diesel engines), unless both of the following requirements have been met:

(a) The vehicle or engine manufacturer has received a Certificate of Conformity under 40 CFR part 86, 40 CFR part 89, or 40 CFR part 1039 and the certification of the vehicle or engine configuration is explicitly based on emissions data with the addition of motor oil; and

(b) The oil is added in a manner and rate consistent with the conditions of the Certificate of Conformity.

[69 FR 39171, June 29, 2004]

§80.523   [Reserved]

§80.524   What sulfur content standard applies to motor vehicle diesel fuel downstream of the refinery or importer?

(a) Except as provided in paragraph (b) of this section or otherwise in the provisions of this Subpart I, the 15 ppm sulfur content standard of §80.520(a) shall apply to all motor vehicle diesel fuel at any downstream location.

(b) Prior to the October 1, 2010 and December 1, 2010 dates specified in §80.500(d)(3) and (4), the 500 ppm sulfur content standard of §80.520(c) shall apply to motor vehicle diesel fuel at any downstream location, provided the following conditions are met:

(1) The product transfer documents comply with the requirements of §80.590, including indicating that the fuel complies with the 500 ppm sulfur standard for motor vehicle diesel fuel and is for use only in model year 2006 and older diesel motor vehicles, or the fuel is downgraded pursuant to the provision of §80.527 to motor vehicle diesel fuel subject to the 500 ppm sulfur standard;

(2) The motor vehicle diesel fuel is not represented or intended for sale or use as subject to the 15 ppm sulfur content standard, and is not dispensed, or intended to be dispensed, into model year 2007 and later motor vehicles by a retailer or wholesale purchaser-consumer; and

(3) For retailers or wholesale purchaser-consumers, the pump labeling requirements of §80.570(a) are satisfied.

§80.525   What requirements apply to kerosene blenders?

(a) For purposes of this subpart, a kerosene blender means any refiner who produces NRLM or motor vehicle diesel fuel by adding kerosene to NRLM or motor vehicle diesel fuel downstream of the refinery that produced that fuel or of the import facility where the fuel was imported, without altering the quality or quantity of the fuel in any other manner.

(b) Kerosene blenders are not subject to the requirements of this subpart applicable to refiners of diesel fuel, but are subject to the requirements and prohibitions applicable to downstream parties.

(c) For purposes of compliance with §§80.524(b)(1) and 80.511(b)(1), the product transfer documents must indicate that the fuel to which kerosene is added complies with the 500 ppm sulfur standard for motor vehicle diesel fuel and is for use only in model year 2006 and older diesel motor vehicles, the fuel is properly downgraded pursuant to the provisions of §80.527 to motor vehicle diesel fuel subject to the 500 ppm sulfur standard, or the applicable NRLM standard.

(d) Kerosene that a kerosene blender adds or intends to add to diesel fuel subject to the 15 ppm sulfur content standard must meet the 15 ppm sulfur content standard, and either of the following requirements:

(1) The product transfer document received by the kerosene blender indicates that the kerosene is diesel fuel that complies with the 15 ppm sulfur content standard.

(2) The kerosene blender has test results indicating the kerosene complies with the 15 ppm sulfur standard.

[66 FR 5136, Jan. 18, 2001, as amended at 70 FR 40895, July 15, 2005; 75 FR 22969, Apr. 30, 2010]

§80.526   [Reserved]

§80.527   Under what conditions may motor vehicle diesel fuel subject to the 15 ppm sulfur standard be downgraded to motor vehicle diesel fuel subject to the 500 ppm sulfur standard?

(a) Definitions. As used in this section, downgrade means changing the designation or classification of motor vehicle diesel fuel subject to the 15 ppm sulfur standard under §80.520(a)(1) to motor vehicle diesel fuel subject to the 500 ppm sulfur standard under §80.520(c). A downgrade occurs when the change in designation or classification takes place. Changing the designation or classification of motor vehicle diesel fuel subject to the 15 ppm sulfur standard under §80.520(a)(1) to any designation or classification that is not a motor vehicle diesel fuel is not a downgrade for purposes of this section.

(b) Who is subject to the downgrade limitation: Any distributor, retailer, or wholesale purchaser consumer that takes custody of any diesel fuel designated or classified as #2D 15 ppm sulfur motor vehicle diesel fuel and delivers any diesel fuel designated or classified as #2D 500 ppm motor vehicle diesel fuel.

(c) Downgrading limitation. The provisions of this section apply beginning October 15, 2006.

(1) Except as provided in paragraphs (d) and (e) of this section, a person described in paragraph (b) of this section may not downgrade a total of more than 20 percent of the #2D motor vehicle diesel fuel (by volume) that is subject to the 15 ppm sulfur standard of §80.520(a)(1) to #2D motor vehicle diesel fuel subject to the sulfur standard of §80.520(c) while such person has custody of such fuel.

(2) The limitation of paragraph (c)(1) of this section applies separately to each facility as defined under §80.502 where there is custody of the fuel when it is downgraded.

(3) Compliance with the limitation of paragraph (c)(1) of this section applies separately for the compliance periods of October 15, 2006 through May 31, 2007; June 1, 2007 through June 30, 2008; July 1, 2008 through June 30, 2009; July 1, 2009 through May 31, 2010.

(4) Except as provided in paragraph (e) of this section, compliance with the limitation of paragraph (c)(1) of this section shall be as calculated under §80.599(e).

(d) Diesel fuel in violation of the 15 ppm standard. Where motor vehicle diesel fuel subject to the 15 ppm sulfur standard of §80.520(a)(1) is found to be in violation of any standard under §80.520(a) and is consequently downgraded to 500 ppm sulfur motor vehicle diesel fuel, the person having custody of the fuel at the time it is found to be in violation must include the volume of such downgraded fuel toward its 20 percent volume limitation under paragraph (c)(1) of this section, unless the person demonstrates that it did not cause the violation.

(e) Special provisions for retail outlets and wholesale purchaser-consumer facilities. Notwithstanding the provisions of paragraph (c)(1) of this section, retailers and wholesale purchaser-consumers shall comply with the downgrading limitation as follows:

(1) Retailers and wholesale purchaser-consumers who sell, offer for sale, or dispense motor vehicle diesel fuel that is subject to the 15 ppm sulfur standard under §80.520(a)(1) are exempt from the volume limitations of paragraph (c)(1) of this section.

(2) A retailer or wholesale purchaser-consumer who does not sell, offer for sale, or dispense motor vehicle diesel fuel subject to the 15 ppm sulfur standard under §80.520(a)(1) must comply with the downgrading limitations of paragraph (c) of this section, such that it may not downgrade a volume of motor vehicle diesel fuel, designated as subject to the 15 ppm sulfur standard, for more than 20% of the total volume of motor vehicle diesel fuel that it sells, offers for sale, or dispenses in any compliance period.

(f) Termination of downgrading limitations. The provisions of this section shall not apply after May 31, 2010.

[69 FR 39172, June 29, 2004, as amended at 71 FR 25717, May 1, 2006]

§§80.528-80.529   [Reserved]

Temporary Compliance Option

§80.530   Under what conditions can 500 ppm motor vehicle diesel fuel be produced or imported after May 31, 2006?

(a) Beginning June 1, 2006, a refiner or importer may produce or import motor vehicle diesel fuel subject to the 500 ppm sulfur content standard of §80.520(c) if all of the following requirements are met:

(1) Each batch of motor vehicle diesel fuel subject to the 500 ppm sulfur content standard must be designated by the refiner or importer as subject to such standard, pursuant to §80.598(a).

(2) The refiner or importer must meet the requirements for product transfer documents in §80.590 for each batch subject to the 500 ppm sulfur content standard.

(3)(i) The volume of motor vehicle diesel fuel that is produced or imported during a compliance period (V500, as provided in paragraph (a)(5) of this section, may not exceed the following volume limit:

(A) For the compliance periods prior to the period from July 1, 2009 through May 31, 2010, 20 percent of the volume of motor vehicle diesel fuel that is produced or imported during a compliance period (Vt) plus an additional volume of motor vehicle diesel fuel represented by credits properly generated and used pursuant to the requirements of §§80.531 and 80.532.

(B) For the compliance period from July 1, 2009 through May 31, 2010, 20 percent of the volume of motor vehicle diesel fuel that is produced or imported prior to January 1, 2010 during the compliance period (Vt), plus an additional volume of motor vehicle diesel fuel represented by credits properly generated and used pursuant to the requirements of §§80.531 and 80.532. From January 1, 2010 through May 31, 2010, the volume of motor vehicle diesel fuel that is produced or imported shall not exceed the volume represented by credits used pursuant to §80.532.

(ii) The terms V500 and Vt have the meaning specified in §80.531(a)(2).

(4) Compliance with the volume limit in paragraph (a)(3) of this section must be determined separately for each refinery. For an importer, such compliance must be determined separately for each Credit Trading Area (as defined in §80.531) into which motor vehicle diesel fuel is imported. If a party is both a refiner and an importer, such compliance shall be determined separately for the refining and importation activities.

(5) Compliance with the volume limit in paragraph (a)(3) of this section shall be determined on an annual basis, where the annual compliance period is from July 1 through June 30. For the year 2006, compliance shall be determined for the period June 1, 2006 through June 30, 2007. For the year 2010, compliance shall be determined for the period of July 1, 2009 through May 31, 2010.

(6) Any motor vehicle diesel fuel produced or imported above the volume limit in paragraph (a)(3) of this section shall be subject to the 15 ppm sulfur content standard. However, for any compliance period prior to the compliance period July 1, 2009 through May 31, 2010, a refiner or importer may exceed the volume limit in paragraph (a)(3) of this section by no more than 5 percent of the volume of diesel fuel produced or imported during the compliance period (Vt), provided that for the immediately following compliance period:

(i) The refiner or importer complies with the volume limit in paragraph (a)(3) of this section; and

(ii) The refiner or importer produces or imports a volume of motor vehicle diesel fuel subject to the 15 ppm sulfur standard, or obtains credits properly generated and used pursuant to the requirements of §§80.531 and 80.532 that represent a volume of motor vehicle diesel fuel, equal to the volume of the exceedance for the prior compliance period.

(b) After May 31, 2010, no refiner or importer may produce or import motor vehicle diesel fuel subject to the 500 ppm sulfur content standard pursuant to this section.

[69 FR 39172, June 29, 2004]

§80.531   How are motor vehicle diesel fuel credits generated?

(a) Generation of credits from June 1, 2006 through December 31, 2009. (1) A refiner or importer may generate credits during the period June 1, 2006 through December 31, 2009, for motor vehicle diesel fuel produced or imported that is designated as subject to the 15 ppm sulfur content standard under §80.520(a)(1). Credits may be generated only if the volume of motor vehicle diesel fuel designated under §80.598(a) as subject to the 15 ppm sulfur standard of §80.520(a) exceeds 80 percent of the total volume of motor vehicle diesel fuel produced or imported as described in paragraph (a)(2) of this section.

(2) The number of motor vehicle diesel fuel credits generated shall be calculated for each compliance period (as specified in §80.530(a)(5)) as follows:

C = V1515−(0.80 × Vt)

Where:

C = the positive number of motor vehicle diesel fuel credits generated, in gallons.

V15 = the total volume in gallons of diesel fuel produced or imported that is designated under §80.598 as motor vehicle diesel fuel and subject to the standards of §80.520(a) during the compliance period.

Vtn = V15 + V500

V500 = the total volume in gallons of diesel fuel produced or imported that is designated under §80.598(a) as motor vehicle diesel fuel and subject to the 500 ppm sulfur standard under §80.520(c) plus the total volume of any other diesel fuel (not including V15, diesel fuel that is dyed in accordance with §80.520(b) at the refinery or import facility where the diesel fuel is produced or imported, or diesel fuel that is designated as NRLM under §80.598(a)) represented as having a sulfur content less than or equal to 500 ppm.

(3) Credits shall be generated and designated as follows:

(i) Credits shall be generated separately for each refinery of a refiner.

(ii) Credits shall be generated separately for each credit trading area (CTA), as defined in paragraph (a)(5) of this section, into which motor vehicle diesel fuel is imported by an importer.

(iii) Credits shall be designated separately by year of generation and by CTA of generation. In the case of a refiner, credits shall also be designated by refinery, and in the case of an importer, credits shall also be designated by port of import.

(iv) Credits may not be generated by both a foreign refiner and by an importer for the same motor vehicle diesel fuel.

(4) Credits shall be generated by a foreign refiner as provided in §80.620(c) and this section.

(5) For purposes of this subpart, the CTAs are:

(i) PADDs I, II, III and IV, as described in §80.502(f) except as provided in paragraph (a)(5)(iv) of this section. The CTAs shall be designated as CTA 1, 2, 3, and 4, respectively, and correspond to PADDs I, II, III, and IV, respectively;

(ii) CTA 5 shall correspond to PADD V, as described in §80.502(f), except as provided in paragraphs (a)(5)(iii) and (iv) of this section;

(iii) The states of Hawaii and Alaska shall each be treated as a separate CTA and not a part of CTA 5. Alaska shall be CTA 6. Hawaii shall be CTA 7;

(iv) If any state (through a waiver of federal preemption under Section 211(c)(4) of the Clean Air Act, 42 U.S.C. 7545(c)(4)) implements a law or regulation that requires a greater volume of motor vehicle diesel fuel to meet a sulfur standard of less than or equal to 15 ppm than the volume that is required under this subpart, no motor vehicle diesel fuel produced in that state or imported directly into that state may generate credits under this subpart, effective on the implementation date of the sulfur program under the state statute or regulation that implements the more stringent state requirements.

(v) The U.S. territories specified in §80.502(f)(6) shall be included in CTA 1.

(6) No credits may be generated under this paragraph (a) after December 31, 2009.

(7) No refinery may generate credits under both this paragraph (a) and under paragraph (e) of this section.

(b) Generation of early credits from June 1, 2001 through May 31, 2005. (1) Beginning June 1, 2001, a refiner or importer may generate one credit for each gallon of motor vehicle diesel fuel meeting the sulfur content standard in §80.520(a)(1) that is used in vehicles with engines that are certified to meet the model year 2007 heavy duty engine PM standard under 40 CFR 86.007-11, or vehicles with retrofit technologies that achieve emission levels equivalent to the 2007 NOX or PM emission standard verified as part of a retrofit program administered by EPA or a state. Such refiners and importers must comply with the requirements of paragraphs (b) and (d) of this section.

(2)(i) Any refiner or importer planning to generate credits under this paragraph must provide notice of intent to generate early credits at least 120 calendar days prior to the date it begins generating credits under this paragraph by submitting such notice to Attn: Early Diesel Credits Notice, at the address in §80.595.

(ii) The notice shall include a detailed plan that demonstrates that the motor vehicle diesel fuel meeting the 15 ppm sulfur standard of §80.520(a)(1) for which credits are generated under this paragraph will be used in vehicles with engines that are certified to meet the model year 2007 heavy duty engine PM standard under 40 CFR 86.007-11 or in vehicles with retrofit technologies that achieve emission levels equivalent to the 2007 NOX or PM emission standard verified as part of a retrofit program administered by EPA or a state. The notice must include the refiner's or importer's detailed plan for ensuring that all motor vehicle diesel fuel that generates early credits under this paragraph will be segregated from all other motor vehicle diesel fuel not meeting the sulfur standard under §80.520(a)(1), from the refinery or import facility to its ultimate use in motor vehicles.

(3) No credits may be generated under this paragraph (b) after May 31, 2005.

(4) A refiner or importer may generate credits under this paragraph and also generate credits under paragraph (a) of this section, and a small refiner, as defined under §80.550, may generate credits under this paragraph (b) and paragraph (e) of this section.

(c) Generation of early credits from June 1, 2005 through May 31, 2006. (1) Beginning June 1, 2005, a refiner or importer may generate one credit for each gallon of motor vehicle diesel fuel produced or imported that meets the 15 ppm sulfur standard in §80.520(a)(1) that is delivered into the distribution system. Such refiners and importers must comply with the requirements of this paragraph (c) and paragraph (d) of this section.

(2)(i) Any refiner or importer planning to generate credits under this paragraph must provide notice of intent to generate early credits at least 30 calendar days prior to the date it begins generating credits under this paragraph (c).

(ii) [Reserved]

(3) No credits may be generated under this paragraph after May 31, 2006.

(4) A refiner or importer may generate credits under this paragraph (c) and also generate credits under paragraph (a) of this section, and a small refiner, as defined under §80.550, may generate credits under this paragraph (c) and paragraph (e) of this section.

(5) Credit transfers for early credits. For early credits generated under §80.531(c), credits may be used in any of the CTAs 1 through 5 that were generated in any of the CTAs 1 through 7 to achieve compliance with the volume limit in §80.503(a)(3);

(d) Additional requirements for early credits. Early credits generated under paragraphs (b) and (c) of this section are subject to the following additional requirements:

(1) The designation requirements of §80.598, and all recordkeeping and reporting requirements of §§80.592 (except for paragraph (a)(3)), 80.593, 80.594, 80.600, and 80.601.

(2) Credits generated under paragraphs (b) and (c) of this section shall be generated separately by CTA as defined in paragraph (a)(5) of this section and must be designated by CTA of generation, and by the refiner and refinery, or by importer and port of import, as applicable, except as provided under paragraph (c)(5) of this section.

(3) Credits may not be generated for the same fuel by both a foreign refiner and an importer.

(4) [Reserved]

(5) In addition to the reporting requirements under paragraph (d)(1) of this section, the refiner or importer must submit a report to the Administrator no later than August 31, 2005 for the period from June 1, 2004 through May 31, 2005, or August 31, 2006 for the period from June 1, 2005 through May 31, 2006, demonstrating that all the motor vehicle diesel fuel produced or imported for which credits were generated met the applicable requirements of paragraph (b), (c), or (d)(4) of this section. If the Administrator finds that such credits did not in fact meet the requirements of paragraphs (b)(1) and (c)(1) of this section, as applicable, or if the Administrator determines that there is insufficient information to determine the validity of such credits, the Administrator may deny the credits submitted in whole or in part.

(e) Credits generated by small refiners. (1) Notwithstanding the provisions of paragraph (a) of this section, a small refiner that is approved by the EPA as a small refiner under §80.551(g) may generate credits under §80.552(b). Such a small refiner may generate one credit for each gallon of motor vehicle diesel fuel produced that is designated under §80.598 as motor vehicle diesel fuel subject to the 15 ppm sulfur standard under §80.520(a)(1).

(2)(i) Credits may be generated under this paragraph (e) and §80.552(b) only during the compliance periods beginning June 1, 2006 and ending on May 31, 2010, however diesel fuel produced after December 31, 2009 shall not generate credits. Credits shall be designated separately by refinery, separately by CTA of generation, and separately by annual compliance period. The annual compliance period for 2006 shall be June 1, 2006 through June 30, 2007. The annual compliance period for 2010 shall be July 1, 2009 through May 31, 2010.

(ii) The small refiner must meet the requirements of paragraphs (d)(1), (d)(2) and (d)(3) of this section, and the recordkeeping and reporting requirements of §§80.592, 80.593 and 80.594.

(iii) In addition, a foreign refiner that is approved by the Administrator to generate credits under §80.552(b) shall comply with the requirements of §80.620.

[66 FR 5136, Jan. 18, 2001, as amended at 69 FR 39173, June 29, 2004; 70 FR 40895, July 15, 2005; 70 FR 70510, Nov. 22, 2005; 71 FR 25717, May 1, 2006]

§80.532   How are motor vehicle diesel fuel credits used and transferred?

(a) Credit use stipulations. Motor vehicle diesel fuel credits generated under §80.531 may be used to meet the volume limit of §80.530(a)(3) provided that:

(1) The motor vehicle diesel fuel credits were generated and reported according to the requirements of this subpart; and

(2) The conditions of this section are met.

(b) Use of credits generated under §80.531. Motor vehicle diesel fuel credits generated under §80.531 may be used by a refiner or by an importer to comply with §80.530 by applying one credit for every gallon of motor vehicle diesel fuel needed to meet compliance with the volume limit of §80.530(a)(3).

(c) Credit banking. Motor vehicle diesel fuel credits generated may be banked for use or transfer in a later compliance period or may be transferred to another refiner or importer for use as provided in paragraph (d) of this section.

(d) Credit transfers. (1) Motor vehicle diesel fuel credits obtained from another refiner or from another importer, including early motor vehicle diesel fuel credits and small refiner motor vehicle diesel fuel credits as described in §80.531(b) through (e), may be used to satisfy the volume limit of §80.530(a)(3) if all the following conditions are met:

(i) The motor vehicle diesel fuel credits were generated in the same CTA as the CTA in which motor vehicle diesel fuel credits are used to achieve compliance, except as provided in §80.531(c)(5);

(ii) The motor vehicle diesel fuel credits are used in compliance with the time period limitations for credit use in this subpart;

(iii) Any credit transfer takes place no later than the August 31 following the compliance period when the motor vehicle diesel fuel credits are used;

(iv) No credit may be transferred more than twice, as follows: The first transfer by the refiner or importer who generated the credit may only be made to a refiner or importer who intends to use the credit; if the transferee cannot use the credit, it may make a second and final transfer only to a refiner or importer who intends to use the credit. In no case may a credit be transferred more than twice before being used or terminated;

(v) The credit transferor must apply any motor vehicle diesel fuel credits necessary to meet the transferor's annual compliance requirements before transferring motor vehicle diesel fuel credits to any other refinery or importer;

(vi) No motor vehicle diesel fuel credits may be transferred that would result in the transferor having a negative credit balance; and

(vii) Each transferor must supply to the transferee records indicating the year the motor vehicle diesel fuel credits were generated, the identity of the refiner (and refinery) or importer who generated the motor vehicle diesel fuel credits, the CTA of credit generation, and the identity of the transferring entity, if it is not the same entity who generated the motor vehicle diesel fuel credits.

(2) In the case of motor vehicle diesel fuel credits that have been calculated or created improperly, or are otherwise determined to be invalid, the following provisions apply:

(i) Invalid motor vehicle diesel fuel credits cannot be used to achieve compliance with the transferee's volume requirements regardless of the transferee's good faith belief that the motor vehicle diesel fuel credits were valid.

(ii) The refiner or importer who used the motor vehicle diesel fuel credits, and any transferor of the motor vehicle diesel fuel credits, must adjust their credit records, reports and compliance calculations as necessary to reflect the proper motor vehicle diesel fuel credits.

(iii) Any properly created motor vehicle diesel fuel credits existing in the transferor's credit balance after correcting the credit balance, and after the transferor applies motor vehicle diesel fuel credits as needed to meet the compliance requirements at the end of the compliance period, must first be applied to correct the invalid transfers before the transferor trades or banks the motor vehicle diesel fuel credits.

(e) Limitations on credit use. (1) Motor vehicle diesel fuel credits may not be used to achieve compliance with any requirements of this subpart other than the volume limit of §80.530(a)(3), unless specifically approved by the Administrator pursuant to a hardship relief petition under §80.560 or 80.561.

(2) A refiner or importer possessing motor vehicle diesel fuel credits must use all motor vehicle diesel fuel credits in its possession prior to applying the credit deficit provisions of §80.530(a)(6).

(3) No motor vehicle diesel fuel credits may be used to meet compliance with this subpart subsequent to the compliance period ending May 31, 2010.

[69 FR 39173, June 29, 2004, as amended at 71 FR 25717, May 1, 2006]

§80.533   How does a refiner or importer apply for a motor vehicle or non-highway baseline for the generation of NRLM credits or the use of the NRLM small refiner compliance options?

(a) A refiner or importer wishing to generate credits under §80.535 or use the small refiner provisions under §80.554 must submit an application to EPA that includes the information required under paragraph (c) of this section by the dates specified in paragraph (f) of this section. A refiner must apply for a motor vehicle baseline for each refinery in order to generate credits under §80.535 and apply for a non-highway baseline for each refinery to use the provisions of §80.554 (a), (b), or (d).

(b) The baseline must be sent to the following address: U.S. EPA—Attn: Nonroad Rule Diesel Fuel Baseline, Transportation and Regional Programs Division (6406J), 1200 Pennsylvania Avenue, NW., Washington, DC 20460 (regular mail) or U.S. EPA, Attn: Nonroad Rule Diesel Fuel Baseline, Transportation and Regional Programs Division (6406J), 1310 L Street, NW., 6th floor, Washington, DC 20005 (express mail).

(c) A baseline application must be submitted for each refinery or import facility and include the following information:

(1) A listing of the names and addresses of all refineries or import facilities owned by the company for which the refiner or importer is applying for a motor vehicle or non-highway baseline.

(2)(i) For purposes of a motor vehicle baseline volume for use in determining early credits per §80.535(a) and (b) and for purposes of a non-highway baseline volume used in determining compliance with the provisions of §80.554(a) or (d), the baseline volume produced during the three calendar years beginning January 1, 2003, 2004, and 2005, as calculated under paragraph (e)(1) of this section.

(ii) For purposes of a motor vehicle baseline volume for use in determining early credits per §80.535(c) and for purposes of a non-highway baseline volume used in determining compliance with the provisions of §80.554(b), the baseline volumes produced during the three calendar years beginning January 1, 2006, 2007, and 2008, as calculated under paragraph (e)(2) of this section.

(iii) For purposes of a total diesel baseline volume for use in determining compliance with the provisions of §80.554(d), the baseline volumes of motor vehicle diesel fuel produced during the calendar years beginning January 1, 1998 and 1999 (per §§80.595(a) and 80.596(a)); and the baseline volumes of non-highway diesel fuel produced during the three calendar years beginning January 1, 2003, 2004, and 2005. This shall be calculated as stated under paragraph (f) of this section.

(3) A letter signed by the president, chief operating officer of the company, or his/her delegate, stating that the information contained in the motor vehicle or non-highway baseline application is true to the best of his/her knowledge.

(4) Name, address, phone number, facsimile number and e-mail address of a corporate contact person.

(5) For each batch of diesel fuel produced or imported during each calendar year:

(i) The date that production was completed or importation occurred for the batch and the batch designation or classification.

(ii) The batch volume.

(6) Other appropriate information as requested by EPA.

(d) Calculation of the Motor vehicle Baseline, BMV. (1) Under paragraph (c)(2)(i) of this section, BMV equals the average annual volume of motor vehicle diesel fuel produced or imported from January 1, 2003 through December 31, 2005.

(2) Under paragraph (c)(2)(ii) of this section, BMV equals the average annual volume of motor vehicle diesel fuel produced or imported during the period from January 1, 2006 through December 31, 2008.

(3) For purposes of this paragraph, fuel produced for export, jet fuel (kerosene), and fuel specifically produced to meet military specifications (such as JP-4, JP-8, and F-76), shall not be included in baseline calculations.

(e) Calculation of the Non-highway Baseline, BNRLM. For purposes of this paragraph (e), BMV shall only include the average annual volume of #2D distillate fuel.

(1) Under paragraphs (c)(2)(i) and (c)(2)(iii) of this section, BNRLM equals the average annual volume of all #2D distillate produced or imported from January 1, 2003 through December 31, 2005, less BMV as determined in paragraph (d)(1) of this section.

(2) Under paragraph (c)(2)(ii) of this section, BNRLM equals the average annual volume of MVNRLM produced or imported from January 1, 2006 through December 31, 2008, less BMV as determined in paragraph (d)(2) of this section.

(3) For purposes of this paragraph (e), fuel produced for export, jet fuel, kerosene, and fuel specifically produced to meet military specification (such as JP-4, JP-8, and F-76), shall not be included in baseline calculations.

(f) Calculation of the Total Diesel Baseline, BMVNRLM. BMVNRLM equals the sum of BMV (as calculated under §80.596) plus BNRLM (as calculated under paragraph (e)(1) of this section).

(g)(1) Applications submitted under paragraphs (c)(2)(i) and (c)(2)(iii) of this section must be postmarked by February 28, 2006.

(2) Applications submitted under paragraph (c)(2)(ii) of this section must be postmarked by February 28, 2009.

(h)(1) For applications submitted under paragraphs (c)(2)(i) and (c)(2)(iii) of this section, EPA will notify refiners or importers by June 1, 2006 of approval of the baselines for each of the refiner's refineries or importer's import facilities or of any deficiencies in the refiner's or importer's application.

(2) For applications submitted under paragraph (c)(2)(ii) of this section, EPA will notify refiners or importers by June 1, 2009 regarding approval of the baselines for each of the refiner's refineries or importer's import facilities of any deficiencies in the refiner's or importer's application.

(i) If at any time the motor vehicle baseline or non-highway baseline submitted in accordance with the requirements of this section is determined to be incorrect, EPA will notify the refiner or importer of the corrected baseline and any compliance calculations made on the basis of that baseline will have to be adjusted retroactively.

[69 FR 39174, June 29, 2004, as amended at 70 FR 70510, Nov. 22, 2005; 71 FR 25717, May 1, 2006]

§80.534   [Reserved]

§80.535   How are NRLM diesel fuel credits generated?

(a) Generation of high sulfur NRLM credits from June 1, 2006 through May 31, 2007. (1) During the period June 1, 2006 through May 31, 2007, a refiner or importer may generate credits pursuant to the provisions of this section if all of the following conditions are met:

(i) The refiner or importer notifies EPA of its intention to generate credits and the period during which it will generate credits. This notification must be received by EPA at least 30 calendar days prior to the date it begins generating credits under this section.

(ii) Each batch or partial batch of NRLM diesel fuel for which credits are claimed shall be subject to all of the provisions of this subpart for NRLM diesel fuel as if it had been produced after June 1, 2007 and before June 1, 2010.

(iii) The number of high-sulfur NRLM credits (HSC) that are generated shall be a positive number.

(2) The refiner or importer shall choose one of the following methods for calculating credits for each calculation period.

(i) For fuel that is dyed under the provisions of §80.520, HSC equals the volume of fuel in gallons produced or imported during the period identified in paragraph (a)(1) of this section that is designated as NRLM diesel fuel and that is subject to and complies with the provisions of §80.510(a); or

(ii) For dyed or undyed fuel that complies with the provisions of §80.598 for a calculation period of June 1, 2006 through May 31, 2007, determine HSC as follows:

HSC = V510 + V520 − BMV

Where:

V510 = The total volume of NRLM diesel fuel produced or imported during the annual calculation period that complies with the standards of §80.510(a) or (b).

V520 = The total volume of motor vehicle diesel fuel produced or imported during the annual calculation period that complies with the standards of §80.520(a) or (c).

BMV = As calculated in §80.533(d)(1).

(3) High-sulfur NRLM credits shall be generated and designated as follows:

(i) Credits shall be generated separately for each refiner or importer.

(ii) Credits may not be generated by both a foreign refiner and by an importer for the same motor vehicle diesel fuel.

(iii) Credits shall not be generated under both §80.531 and this section for the same diesel fuel.

(iv) Any credits generated by a foreign refiner shall be generated as provided in §80.620(c) and this section.

(4) No credits may be generated under this paragraph (a) after May 31, 2007.

(5) Any fuel for which a refiner or importer wishes to generate credits must be designated as 500 ppm sulfur NRLM diesel fuel when delivered to the next entity. The refiner may not designate the fuel as 500 ppm sulfur with the intent that it be mixed by the next entity with a batch of distillate with a higher sulfur level to create a fuel with a classification other than 500 ppm sulfur or the classification of the fuel it is mixed with (e.g., it cannot mix fuel designated as 500 ppm sulfur with fuel classified as high sulfur to produce a fuel classified as 2000 ppm sulfur to meet state or local sulfur limits).

(6) The refiner or importer must submit a report to the Administrator no later than July 31, 2007. The report must demonstrate that all the NRLM diesel fuel produced or imported which generated credits met the applicable requirements of paragraphs (a)(1) through (a)(5) of this section. If the Administrator finds that such credits did not in fact meet the requirements of paragraphs (a)(1) through (a)(5) of this section, as applicable, or if the Administrator determines that there is insufficient information to determine the validity of such credits, the Administrator may deny the credits submitted in whole or in part.

(b) Generation of high-sulfur NRLM credits by small refiners from June 1, 2006 through May 31, 2010. (1) Notwithstanding the dates specified in paragraph (a) of this section, during the period from June 1, 2006 through May 31, 2010, a refiner that is approved by the EPA as a small refiner under §80.551 may generate credits under paragraph (a) of this section during any compliance period as specified under §80.599(a)(2) for diesel fuel produced or imported that is designated as NRLM diesel fuel and complies with the provisions of §80.510(a).

(2) The small refiner must submit a report to the Administrator no later than August 31 after the end of each calculation period during which credits were generated. The report must demonstrate that all the NRLM diesel fuel produced or imported which generated credits met the applicable requirements of paragraphs (a)(1) through (a)(5) of this section. If the Administrator finds that such credits did not in fact meet the requirements of paragraphs (a)(1) through (a)(5) of this section, as applicable, or if the Administrator determines that there is insufficient information to determine the validity of such credits, the Administrator may deny the credits submitted in whole or in part.

(3) In addition, a foreign refiner that is approved by the Administrator to generate credits under §80.554 shall comply with the requirements of §80.620.

(c) Generation of 500 ppm sulfur NRLM credits from June 1, 2009 through May 31, 2010. (1) During the period of June 1, 2009 through May 31, 2010, a refiner or importer may generate credits pursuant to the provisions of this section if all of the following conditions are met:

(i) The refiner or importer notifies EPA of its intention to generate credits and the period during which it will generate credits. This notification must be received by EPA at least 30 calendar days prior to the date it begins generating credits under this section.

(ii) Each batch or partial batch of NRLM diesel fuel for which credits are claimed shall be subject to all of the provisions of this subpart for NRLM diesel fuel as if it had been produced after June 1, 2010.

(iii) The number of 500 ppm sulfur NRLM credits in gallons that are generated, C500, shall be a positive number calculated as follows:

C500 = V15−BMV

Where:

V15 = The total volume in gallons of 15 ppm diesel fuel produced or imported during the period stated under paragraph (c)(1)(i) of this section that is designated as either motor vehicle diesel fuel or NRLM diesel fuel.

BMV = As determined in §80.533(d)(2).

(2) 500 ppm sulfur NRLM credits shall be generated and designated as follows:

(i) Credits shall be generated separately for each refiner or importer.

(ii) Credits may not be generated by both a foreign refiner and by an importer for the same diesel fuel.

(iii) Credits shall not be generated under both §80.531 and this section for the same diesel fuel.

(iv) Any credits generated by a foreign refiner shall be generated as provided in §80.620(c) and this section.

(3) No credits may be generated under this paragraph (c) after May 31, 2010.

(4) The refiner or importer must submit a report to the Administrator no later than August 31, 2010. The report must demonstrate that all the 15 ppm sulfur NRLM diesel fuel produced or imported which generated credits met the applicable requirements of paragraphs (c)(1) through (c)(3) of this section. If the Administrator finds that such credits did not in fact meet the requirements of paragraphs (c)(1) through (c)(3) of this section, as applicable, or if the Administrator determines that there is insufficient information to determine the validity of such credits, the Administrator may deny the credits submitted in whole or in part.

(d) Generation of 500 ppm sulfur NRLM credits by small refiners from June 1, 2009 through December 31, 2013. (1) Notwithstanding the dates specified in paragraph (c) of this section, during the period from June 1, 2009 through December 31, 2013, a refiner that is approved by the EPA as a small refiner under §80.551 may generate credits under paragraph (c) of this section during any compliance period as specified under §80.599(a)(2) for diesel fuel produced or imported that is designated as NR or NRLM diesel fuel and complies with the provisions of §80.510(b) or (c).

(2) The small refiner must submit a report to the Administrator no later than August 31 after the end of each calculation period during which credits were generated. The report must demonstrate that all the 15 ppm sulfur NR or NRLM diesel fuel produced or imported for which credits were generated met the applicable requirements of paragraphs (c)(1) through (c)(3) of this section. If the Administrator finds that such credits did not in fact meet the requirements of paragraphs (c)(1) through (c)(3) of this section, as applicable, or if the Administrator determines that there is insufficient information to determine the validity of such credits, the Administrator may deny the credits submitted in whole or in part.

(3) In addition, a foreign refiner that is approved by the Administrator to generate credits under §80.554 shall comply with the requirements of §80.620.

[69 FR 39175, June 29, 2004, as amended at 71 FR 25718, May 1, 2006]

§80.536   How are NRLM diesel fuel credits used and transferred?

(a) Credit use stipulations. Credits generated under §80.535(a) and (b) may be used to meet the NRLM diesel fuel sulfur standard of §80.510(a), and credits generated under 80.535(c) and (d) may be used to meet the NR and NRLM diesel fuel sulfur standard of 80.510(b) and (c), respectively, provided that:

(1) The credits were generated and reported according to the requirements of this subpart; and

(2) The conditions of this section are met.

(b) Using credits generated under §80.535. Credits generated under §80.535 may be used by a refiner or an importer to comply with the diesel fuel standards of §80.510 (a), (b), and (c) by applying one credit for every gallon of diesel fuel that does not comply with the applicable standard.

(c) Credit banking. Credits generated may be banked for use at a later time or may be transferred to any other refiner or importer nationwide for use as provided in paragraph (d) of this section.

(d) Credit transfers. (1) Credits generated under §80.535 that are obtained from another refiner or importer may be used to comply with the diesel fuel sulfur standards of §80.510(a), (b), and (c) if all the following conditions are met:

(i) The credits are used in compliance with the time period limitations for credit use in this subpart;

(ii) Any credit transfer is completed no later than August 31 following the compliance period when the credits are used to comply with a standard under paragraph (a) of this section;

(iii) No credit is transferred more than twice, as follows:

(A) The first transfer by the refiner or importer who generated the credit may only be made to a refiner or importer that intends to use the credit; if the transferee cannot use the credit, it may make a second and final transfer only to a refiner or importer who intends to use the credit; and

(B) In no case may a credit be transferred more than twice before it is used or it expires;

(iv) The credit transferor applies any credits necessary to meet the transferor's annual compliance requirements before transferring credits to any other refinery or importer;

(v) No credits are transferred that would result in the transferor having a negative credit balance; and

(vi) Each transferor supplies to the transferee records indicating the year the credits were generated, the identity of the refiner (and refinery) or importer that generated the credits, and the identity of the transferor, if it is not the same party that generated the credits.

(2) In the case of credits that have been calculated or created improperly, or are otherwise determined to be invalid, the following provisions apply:

(i) Invalid credits cannot be used to achieve compliance with the transferee's volume requirements regardless of the transferee's good faith belief that the credits were valid.

(ii) The refiner or importer that used the credits, and any transferor of the credits, must adjust its credit records, reports and compliance calculations as necessary to reflect the proper credits.

(iii) Any properly created credits existing in the transferor's credit balance after correcting the credit balance, and after the transferor applies credits as needed to meet the compliance requirements at the end of the calendar year, must first be applied to correct the invalid transfers before the transferor trades or banks the credits.

(e) General limitation on credit use. Credits may not be used to achieve compliance with any requirements of this subpart other than the standards of §80.510(a), (b), and (c), unless specifically approved by the Administrator pursuant to a hardship relief petition under §80.560 or §80.561.

(f) Use of high sulfur NRLM credits. (1) High sulfur NRLM credits generated under §80.535(a) or (b) may be used on a one-for-one basis to meet the NRLM diesel fuel sulfur standard of §80.510(a) from June 1, 2007 through May 31, 2010. For example, one credit generated by the production or importation of one gallon of NRLM diesel fuel subject to the NRLM diesel fuel sulfur standard of §80.510 (a) may be used to produce or import one gallon of NRLM diesel fuel that is exempt from the sulfur standard of §80.510(a) during the period from June 1, 2007 through May 31, 2010.

(2) Any high sulfur NRLM diesel fuel produced after June 1, 2007 through the use of credits must—

(i) Be dyed red under the provisions of §80.520 at the point of production or importation;

(ii) Be associated with a product transfer document that bears a unique product code as specified in §80.590; and

(iii) Not be used to sell or deliver diesel fuel into areas specified in §80.510(g)(1) or (g)(2).

(3) No high sulfur NRLM credits may be used subsequent to the compliance period ending May 31, 2010.

(4) Any high sulfur NRLM credits not used under the provisions of paragraph (f)(1) of this section may be converted into 500 ppm sulfur NRLM credits on a one-for-one basis for use under paragraph (g) of this section.

(g) Use of 500 ppm sulfur NRLM credits. (1) 500 ppm sulfur NRLM credits generated under §80.535(c) or (d) or converted from high sulfur NRLM credits under paragraph (f)(3) of this section may be used on a one-for-one basis to meet the NR or NRLM diesel fuel sulfur standards of §80.510(b) or (c) from June 1, 2010 through May 31, 2014. For example, one credit generated by the production or importation of one gallon of NRLM diesel fuel subject to the NRLM diesel fuel sulfur standard of §80.510 (c) may be used to produce or import one gallon of NR diesel fuel that is subject to the sulfur standard of §80.510(a) during the period from June 1, 2010 through May 31, 2014.

(2) Any 500 ppm sulfur NR or NRLM diesel fuel produced or imported after June 1, 2010 through the use of these credits must—

(i) Bear a unique product code as specified in §80.590; and

(ii) Not be used to sell or deliver diesel fuel into areas specified in §80.510(g)(1) or (g)(2).

(3) No 500 ppm sulfur NRLM credits may be used after May 31, 2014.

[69 FR 39176, June 29, 2004]

§§80.537-80.539   [Reserved]

Geographic Phase-In Provisions

§80.540   How may a refiner be approved to produce gasoline under the GPA gasoline sulfur standards in 2007 and 2008?

(a) A refiner that has been approved by EPA under §80.217 for the geographic phase-in area (GPA) gasoline sulfur content standards under §80.216 may apply to EPA for approval to produce gasoline subject to the GPA standards in 2007 and 2008. Such application shall be submitted to EPA, at the address provided in §80.595(b), by December 31, 2001. A foreign refiner must apply under the provisions of paragraph (n) of this section.

(b) The refiner must submit an application in accordance with the provisions of §§80.595 and 80.596. The application must also include information, as provided in §80.594(c), demonstrating that starting no later than June 1, 2006, 95 percent of the motor vehicle diesel fuel produced by the refinery for United States use will comply with the 15 ppm sulfur standard under §80.520(a)(1), and that the volume of motor vehicle diesel fuel produced will comply with the volume requirements of paragraph (e) of this section.

(c) The Administrator may approve a refiner's application to produce gasoline subject to the GPA gasoline sulfur content standards in 2007 and 2008 if the provisions of paragraph (b) of this section are satisfied. In approving an application, the Administrator shall establish a motor vehicle diesel fuel volume baseline under §§80.595 and 80.596.

(d) From June 1, 2006 through December 31, 2008, 95 percent of the motor vehicle diesel fuel produced by a refiner that has been approved under paragraph (c) of this section to produce gasoline subject to the GPA gasoline sulfur standards in 2007 and 2008, must be accurately designated under §80.598 as meeting the 15 ppm sulfur standard of §80.520(a)(1).

(e) The total volume of motor vehicle diesel fuel produced for use in the United States and designated as meeting the 15 ppm sulfur standard under paragraph (d) of this section must meet or exceed 85 percent of the baseline volume established under paragraph (c) of this section, except that for the first compliance period from June 1, 2006 through June 30, 2007, the total volume must meet or exceed 92 percent of the baseline volume.

(f) Compliance with the volume requirements in paragraph (e) of this section shall be determined each compliance period. Annual compliance periods shall be from July 1 through June 30. For the year 2006, the compliance period shall be from June 1, 2006 through June 30, 2007.

(g) If a refiner fails to comply with the requirements of paragraph (d) of this section, or if the approval of the application, including the baseline, was based on false or inaccurate information, the approval to produce gasoline subject to the GPA gasoline sulfur content standards under this section during the years 2007 and 2008 shall be void ab initio, and gasoline produced for use in the GPA must meet the gasoline sulfur content standards of subpart H of this Part as if there had been no approval to produce gasoline subject to the GPA gasoline sulfur content standards in 2007 and 2008.

(h) If for any compliance period a refiner fails to meet the volume requirements in paragraph (e) of this section, the approval to produce gasoline subject to the GPA gasoline sulfur content standards shall be void for that compliance period and for all succeeding compliance periods, and gasoline produced for use in the GPA must meet the gasoline sulfur standards under subpart H of this subpart as if there had been no approval to produce gasoline subject to the GPA gasoline sulfur content standards under this section in 2007 and 2008.

(i) A refiner that is approved for production of gasoline subject to the GPA gasoline sulfur standards under this section in 2007 and 2008 must meet all applicable recordkeeping and reporting requirements of §§80.592, 80.593, and 80.594, and shall meet all the recordkeeping and reporting requirements under §§80.219, 80.365 and 80.370.

(j) A refiner approved to produce gasoline subject to the GPA gasoline sulfur standards under this section in 2007 and 2008 may not generate or use credits under §80.531(a) or (e), or §80.532 unless the approval is vacated as provided in paragraph (k) of this section.

(k) A refiner may petition the Administrator to vacate approval to produce gasoline subject to the GPA gasoline sulfur content standards in 2007 and 2008. EPA may grant such a petition, effective January 1 of the compliance period following EPA's receipt of such petition (or effective June 1, in 2006, if applicable). Upon such effective date and thereafter, gasoline produced for use in the GPA must meet the gasoline sulfur content standards under subpart H of this Part as if there had been no approval to produce gasoline subject to the GPA gasoline sulfur content standards under this section in 2007 and 2008. Upon such effective date, the refiner shall not be subject to the requirements of this section.

(l) The provisions of this section shall apply separately for each refinery of a refiner.

(m) If any refinery is approved for production of gasoline subject to GPA gasoline sulfur content standards under this section in 2007 and 2008, the GPA downstream gasoline sulfur standard under §80.220(a)(2) shall apply as follows:

(1) During the period of February 1, 2005 through January 31, 2009, the sulfur content of GPA gasoline at any downstream location other than at a retail outlet or wholesale purchaser-consumer facility shall not exceed 326 ppm.

(2) During the period of March 1, 2005 through February 28, 2009, the sulfur content of GPA gasoline at any downstream location shall not exceed 326 ppm.

(n) A foreign refiner may apply to the Administrator to produce gasoline that is subject to the gasoline sulfur standards for GPA gasoline under §80.216 for the compliance years 2007 and 2008. Such application must be submitted to the EPA, at the address in §80.595(b), by December 31, 2001.

(1) The Administrator may approve such interim GPA gasoline sulfur standards for the foreign refiner provided that the foreign refiner applies for a gasoline sulfur baseline under paragraph (n)(2) of this section and complies with:

(i) The requirements of paragraphs (b) through (l) of this section;

(ii) The requirements for the import of motor vehicle diesel fuel under §80.620; and

(iii) All applicable gasoline requirements for refiners under subpart H of this Part, including the foreign refiner requirements under §80.410, the attest requirements of §80.415, the recordkeeping and reporting requirements of §§80.365 and 80.370, the designation and product transfer document requirements of §80.219, the sampling and testing requirements of §80.330, and the sample retention requirements of §80.335.

(2) The refiner must submit an application for a gasoline sulfur baseline under the provisions of §§80.216(a), 80.295, and 80.410(b).

(3) After review of the foreign refiner's individual refinery gasoline sulfur baseline, its individual refinery motor vehicle diesel fuel baseline, and other information submitted with the application, the Administrator may approve such baselines and the application for GPA gasoline sulfur standards for 2007 and 2008.

(o) An importer is not eligible for approval to import gasoline subject to the GPA standards in 2007 or 2008 under this section.

[66 FR 5136, Jan. 18, 2001, as amended at 69 FR 39177, June 29, 2004]

§§80.541-80.549   [Reserved]

Small Refiner Hardship Provisions

§80.550   What is the definition of a motor vehicle diesel fuel small refiner or a NRLM diesel fuel small refiner under this subpart?

(a) A motor vehicle diesel fuel small refiner is defined as any person, as defined by 42 U.S.C. 7602(e), who—

(1) Produces diesel fuel at a refinery by processing crude oil through refinery processing units; and

(2) Employed an average of no more than 1,500 people, based on the average number of employees for all pay periods from January 1, 1999, to January 1, 2000; and

(3) Had an average crude oil capacity less than or equal to 155,000 barrels per calendar day (bpcd) for 1999; or

(4) Has been approved by EPA as a small refiner under §80.235 and continues to meet the criteria of a small refiner under §80.225.

(b) A NRLM diesel fuel small refiner is defined as any person, as defined by 42 U.S.C. 7602(e), who—

(1) Produces diesel fuel at a refinery by processing crude oil through refinery processing units;

(2) Employed an average of no more than 1,500 people, based on the average number of employees for all pay periods from January 1, 2002, to January 1, 2003; and

(3) Had an average crude oil capacity less than or equal to 155,000 barrels per calendar day (bpcd) for 2002.

(c) Determine the number of employees and crude oil capacity under paragraphs (a) or (b) of this section, as follows:

(1) The refiner shall include the employees and crude oil capacity of any subsidiary companies, any parent company and subsidiaries of the parent company in which the parent has 50 percent or greater ownership, and any joint venture partners.

(2) For any refiner owned by a governmental entity, the number of employees and total crude oil capacity as specified in paragraph (a) of this section shall include all employees and crude oil production of the government to which the governmental entity is a part.

(3) Any refiner owned and controlled by an Alaska Regional or Village Corporation organized pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601) is not considered an affiliate of such entity, or with other concerns owned by such entity solely because of their common ownership.

(d)(1) Notwithstanding the provisions of paragraph (a) of this section, a refiner that acquires or reactivates a refinery that was shut down or non-operational between January 1, 1999, and January 1, 2000, may apply for motor vehicle diesel fuel small refiner status in accordance with the provisions of §80.551(c)(1)(ii).

(2) Notwithstanding the provisions of paragraph (b) of this section, a refiner that acquires or reactivates a refinery that was shutdown or non-operational between January 1, 2002, and January 1, 2003, may apply for NRLM diesel fuel small refiner status in accordance with the provisions of §80.551(c)(2)(ii).

(e) The following are ineligible for the small refiner provisions:

(1)(i) For motor vehicle diesel fuel, refiners with refineries built or started up after January 1, 2000.

(ii) For NRLM diesel fuel, refiners with refineries built or started up after January 1, 2003.

(2)(i) For motor vehicle diesel fuel, persons who exceed the employee or crude oil capacity criteria under this section on January 1, 2000, but who meet these criteria after that date, regardless of whether the reduction in employees or crude oil capacity is due to operational changes at the refinery or a company sale or reorganization.

(ii) For NRLM diesel fuel, persons who exceed the employee or crude oil capacity criteria under this section on January 1, 2003, but who meet these criteria after that date, regardless of whether the reduction in employees or crude oil capacity is due to operational changes at the refinery or a company sale or reorganization.

(3) Importers.

(4) Refiners who produce motor vehicle diesel fuel or NRLM diesel fuel other than by processing crude oil through refinery processing units.

(f)(1)(i) Refiners who qualify as motor vehicle diesel fuel small refiners under this section and subsequently cease production of diesel fuel from processing crude oil through refinery processing units, or employ more than 1,500 people or exceed the 155,000 bpcd crude oil capacity limit after January 1, 2004 as a result of merger with or acquisition of or by another entity, are disqualified as small refiners, except as provided for under paragraph (f)(4) of this section. If disqualification occurs, the refiner shall notify EPA in writing no later than 20 days following this disqualifying event.

(ii) Except as provided under paragraph (f)(3) of this section, any refiner whose status changes under this paragraph shall meet the applicable standards of §80.520 within a period of up to 30 months from the disqualifying event for any of its refineries that were previously subject to the small refiner standards of §80.552, but no later than the May 31, 2010.

(2)(i) Refiners who qualify as NRLM diesel fuel small refiners under this section and subsequently cease production of diesel fuel from crude oil, or employ more than 1,500 people or exceed the 155,000 bpcd crude oil capacity limit after January 1, 2004 as a result of merger with or acquisition of or by another entity, are disqualified as small refiners, except as provided for under paragraph (f)(4) of this section. If disqualification occurs, the refiner shall notify EPA in writing no later than 20 days following this disqualifying event.

(ii) Except as provided under paragraph (f)(3) of this section, any refiner whose status changes under this paragraph shall meet the applicable standards of §80.510 within a period of up to 30 months of the disqualifying event for any of its refineries that were previously subject to the small refiner standards of §80.552, but no later than the dates specified in §80.554(a) or (b), as applicable.

(3) A refiner may apply to EPA for up to an additional six months to comply with the standards of §80.510 or §80.520 if more than 30 months would be required for the necessary engineering, permitting, construction, and start-up work to be completed. Such applications must include detailed technical information supporting the need for additional time. EPA will base a decision to approve additional time on information provided by the refiner and on other relevant information. In no case will EPA extend the compliance date beyond May 31, 2010 for a motor vehicle diesel fuel small refiner or beyond the dates specified in §80.554(a) or (b), as applicable, for a NRLM diesel fuel small refiner.

(4) Disqualification under paragraphs (f)(1) or (f)(2) of this section shall not apply in the case of a merger between two previously approved small refiners.

(5) During the period of time up to 30 months provided under paragraph (f)(1)(ii) of this section, and any extension provided under paragraph (f)(3) of this section, the refiner may not generate motor vehicle diesel fuel sulfur credits under §80.531(e). During the period of time up to 30 months provided under paragraph (f)(2)(ii) of this section, and any extension provided under paragraph (f)(3) of this section, the refiner may not generate NRLM diesel fuel sulfur credits under §80.535(b) or (d).

(g) Notwithstanding the criteria in paragraph (a) of this section, any small refiner that has been approved by EPA as a small refiner under §80.235 and meets the criteria of paragraph (a)(1) of this section, will be considered a small refiner under this section as well, for as long as they are a small refiner under §80.225. The provisions of paragraph (f) of this section apply to any such refiner.

[66 FR 5136, Jan. 18, 2001, as amended at 69 FR 39177, June 29, 2004; 70 FR 40896, July 15, 2005]

§80.551   How does a refiner obtain approval as a small refiner under this subpart?

(a)(1)(i) Applications for motor vehicle diesel fuel small refiner status must be submitted to EPA by December 31, 2001.

(ii) Applications for NRLM diesel fuel small refiner status must be submitted to EPA by December 31, 2004.

(2)(i) In the case of a refiner who acquires or reactivates a refinery that was shutdown or non-operational between January 1, 1999, and January 1, 2000, the application for motor vehicle diesel fuel small refiner status must be submitted to EPA by June 1, 2003.

(ii) In the case of a refiner who acquires or reactivates a refinery that was shutdown or non-operational between January 1, 2002, and January 1, 2003, the application for NRLM diesel fuel small refiner status must be submitted to EPA by June 1, 2006.

(b) Applications for small refiner status must be sent via certified mail with return receipt or express mail with return receipt to: U.S. EPA—Attn: Diesel Small Refiner Status (6406J), 1200 Pennsylvania Avenue, NW., Washington, DC 20460 (certified mail/return receipt) or Attn: Diesel Small Refiner Status, Transportation and Regional Programs Division, 1310 L Street, NW., 6th floor, Washington, DC 20005 (express mail/return receipt).

(c) The small refiner status application must contain the following information for the company seeking small refiner status, plus any subsidiary companies, any parent company and subsidiaries of the parent company in which the parent has 50 percent or greater ownership, and any joint venture partners:

(1) For motor vehicle diesel fuel small refiners—

(i) A listing of the name and address of each location where any employee worked during the 12 months preceding January 1, 2000; the average number of employees at each location based upon the number of employees for each pay period for the 12 months preceding January 1, 2000; and the type of business activities carried out at each location; or

(ii) In the case of a refiner who acquires or reactivates a refinery that was shutdown or non-operational between January 1, 1999, and January 1, 2000, a listing of the name and address of each location where any employee of the refiner worked since the refiner acquired or reactivated the refinery; the average number of employees at any such acquired or reactivated refinery during each calendar year since the refiner acquired or reactivated the refinery; and the type of business activities carried out at each location.

(2) For NRLM diesel fuel small refiners—

(i) A listing of the name and address of each location where any employee worked during the 12 months preceding January 1, 2003; the average number of employees at each location based upon the number of employees for each pay period for the 12 months preceding January 1, 2003; and the type of business activities carried out at each location; or

(ii) In the case of a refiner who acquires or reactivates a refinery that was shutdown or non-operational between January 1, 2002, and January 1, 2003, a listing of the name and address of each location where any employee of the refiner worked since the refiner acquired or reactivated the refinery; the average number of employees at any such acquired or reactivated refinery during each calendar year since the refiner acquired or reactivated the refinery; and the type of business activities carried out at each location.

(3) The total corporate crude oil capacity of each refinery as reported to the Energy Information Administration (EIA) of the U.S. Department of Energy (DOE) for the most recent 12 months of operation. The information submitted to EIA is presumed to be correct. In cases where a company disagrees with this information, the company may petition EPA with appropriate data to correct the record when the company submits its application for small refiner status. EPA may accept such alternate data at its discretion.

(4) For motor vehicle diesel fuel, an indication of whether the refiner, for each refinery, is applying for—

(i) The ability to produce motor vehicle diesel fuel subject to the 500 ppm sulfur standard under §80.520(c) or generate credits under §80.531, pursuant to the provisions of §80.552(a) or (b); or

(ii) An extension of the duration of its small refiner gasoline sulfur standard under §80.553, pursuant to the provisions of §80.552(c).

(5) For NRLM diesel fuel, an indication of whether the refiner, for each refinery, is applying for—

(i) The ability to delay compliance under §80.554(a) or (b), or to generate NRLM diesel sulfur credits under §80.535(b) or (d), pursuant to the provisions of §80.554(c); or

(ii) An adjustment to its small refiner gasoline sulfur standards under §80.240(a), pursuant to the provisions of §80.554(d).

(6) A letter signed by the president, chief operating or chief executive officer of the company, or his/her designee, stating that the information contained in the application is true to the best of his/her knowledge.

(7) Name, address, phone number, facsimile number and e-mail address (if available) of a corporate contact person.

(d) For joint ventures, the total number of employees includes the combined employee count of all corporate entities in the venture.

(e) For government-owned refiners, the total employee count includes all government employees.

(f) Approval of small refiner status for refiners who apply under §80.550(d) will be based on all information submitted under paragraph (c) of this section, except as provided in §80.550(e).

(g) EPA will notify a refiner of approval or disapproval of small refiner status by letter. If disapproved, the refiner must comply with the sulfur standards in §80.510 or 80.520, as appropriate, except as otherwise provided in this subpart.

(h) If EPA finds that a refiner provided false or inaccurate information on its application for small refiner status, upon notice from EPA the refiner's small refiner status will be void ab initio.

(i) Upon notification to EPA, an approved small refiner may withdraw its status as a small refiner. Effective on January 1 of the year following such notification, the small refiner will become subject to the sulfur standards in §80.510 or 80.520, as appropriate, unless one of the other hardship provisions of this subpart apply.

[69 FR 39178, June 29, 2004, as amended at 70 FR 40896, July 15, 2005; 75 FR 22970, Apr. 30, 2010]

§80.552   What compliance options are available to motor vehicle diesel fuel small refiners?

(a) A refiner that has been approved by EPA as a motor vehicle diesel fuel small refiner under §80.551(g) may produce motor vehicle diesel fuel subject to the 500 ppm sulfur standard pursuant to the provisions of §80.530, except that the volume limits of §80.530(a)(3) shall only apply to that volume of diesel fuel that is produced or imported during an annual compliance period that exceeds 105 percent of the baseline volume established under §80.595 (V500). The annual compliance period shall be from July 1 through June 30. For the year 2006, the compliance period shall be from June 1, 2006 through June 30, 2007, and the volume limits shall only apply to that volume V500 that exceeds 113 percent of the baseline volume.

(b) A refiner that has been approved by EPA as a motor vehicle diesel fuel small refiner under §80.551(g) may generate motor vehicle diesel fuel credits pursuant to the provisions of §80.531, except that for purposes of §80.531(a), the term “Credit” shall equal V15, without further adjustment.

(c) A refiner that has been approved by EPA as a motor vehicle diesel fuel small refiner under §80.551(g) may apply for an extension of the duration of its small refiner gasoline sulfur standards pursuant to §80.553.

(d) A refiner that produces motor vehicle diesel fuel under the provisions of paragraph (a) of this section or generates credits under the provisions of paragraph (b) of this section may not receive an extension of its small refiner gasoline sulfur standard under the provisions of paragraph (c) of this section. A refiner that receives an extension of its small refiner gasoline sulfur standard under the provisions of paragraph (c) of this section may not produce motor vehicle diesel fuel under the provisions of paragraph (a) of this section and may not generate credits under the provisions of paragraph (b) of this section.

(e) The provisions of this section shall apply separately for each refinery owned or operated by a motor vehicle diesel fuel small refiner.

[66 FR 5136, Jan. 18, 2001, as amended at 69 FR 39179, June 29, 2004]

§80.553   Under what conditions may the small refiner gasoline sulfur standards be extended for a small refiner of motor vehicle diesel fuel?

(a) A refiner that has been approved by EPA for small refiner gasoline sulfur standards under §80.240 may apply, under §80.551, for an extension of the duration of its small refiner gasoline sulfur standards through the calendar year 2010 annual averaging period.

(b) As part of its application, the refiner must submit an application for a motor vehicle diesel fuel baseline in accordance with the provisions of §§80.595 and 80.596. The application must also include information, as provided in §80.594, demonstrating that starting no later than June 1, 2006, 95 percent of the motor vehicle diesel fuel produced by the refiner will comply with the 15 ppm sulfur content standard under §80.520(a)(1), and that the volume of motor vehicle diesel fuel produced will comply with the volume requirements of paragraph (e) of this section.

(c) The Administrator may approve an application for extension of the small refiner gasoline sulfur standards if the provisions of paragraph (b) of this section and §§80.595 and 80.596 are satisfied. In approving an application for extension, the Administrator shall establish a motor vehicle diesel fuel volume baseline under §§80.595 and 80.596.

(d) Beginning June 1, 2006, and continuing through December 31, 2010, 95 percent of the motor vehicle diesel fuel produced by a refiner that has received an extension of its small refiner gasoline sulfur standards under this section must be accurately designated under §80.598 as meeting the 15 ppm sulfur content standard under §80.520(a)(1).

(e) The total volume of motor vehicle diesel fuel produced for use in the United States and designated as meeting the 15 ppm sulfur content standard under paragraph (d) of this section must meet or exceed 85 percent of the baseline volume established under paragraph (c) of this section, except that for the first compliance period from June 1, 2006 through June 30, 2007, the total volume must meet or exceed 92 percent of the baseline volume.

(f) Compliance with the volume requirements in paragraph (e) of this section shall be determined each compliance period. Annual compliance periods shall be from July 1 through June 30. For the year 2006, the compliance period shall be from June 1, 2006 through June 30, 2007 and for the year 2009 the compliance period shall be from July 1, 2009 through May 31, 2010.

(g) If a refiner fails to comply with the requirements of paragraph (d) of this section, or if approval of the application, including the baseline, was based on false or inaccurate information, the extension of the applicable small refiner gasoline sulfur standards under this section shall be void ab initio, and all gasoline produced by the refinery must meet the gasoline sulfur standards under subpart H of this Part as if there had been no extension of the small refiner gasoline sulfur standards.

(h) If for any compliance period a refiner fails to meet the volume requirements in paragraph (e) of this section, the extension of the small refiner gasoline sulfur standards shall be void for that compliance period and for all succeeding compliance periods and all gasoline produced by the refinery must meet the gasoline sulfur standards under subpart H of this part as if there had been no extension of the small refiner gasoline sulfur standards under this section for such compliance periods.

(i) A refiner that is approved for an extension of the interim small refiner gasoline sulfur standards under this section must meet all applicable recordkeeping and reporting requirements of §§80.592, 80.593, and 80.594, and shall meet all the recordkeeping and reporting requirements under §§80.210, 80.365 and 80.370. Any foreign refiner shall meet all additional requirements under §§80.620 and 80.410.

(j) A refiner approved for the small refiner gasoline sulfur standards extension under this section may not generate or use credits under §80.531(a) or (e), or §80.532.

(k) A refiner may petition the Administrator to vacate an extension of the small refiner gasoline sulfur content standards. EPA may grant such a petition, effective July 1 of the compliance period following receipt of such petition (or effective June 1, 2006, if applicable). Upon such effective date, all gasoline produced by the refiner must meet the gasoline sulfur content standards under subpart H of this part as if there had been no extension of the small refiner gasoline sulfur content standards under this section. Upon such effective date, the refiner shall not be subject to the requirements of this section.

(l) The provisions of this section shall apply separately for each refinery of a refiner.

[66 FR 5136, Jan. 18, 2001, as amended at 69 FR 39179, June 29, 2004; 71 FR 25718, May 1, 2006]

§80.554   What compliance options are available to NRLM diesel fuel small refiners?

(a) Option 1: A refiner that has been approved by EPA as a NRLM diesel fuel small refiner under §80.551(g) may produce NRLM diesel fuel from crude oil from June 1, 2007 through May 31, 2010, that is exempt from the standards under §80.510(a), but only for a refinery located outside the areas specified under §80.510(g)(1).

(1) The volume of NRLM diesel fuel that is exempt from §80.510(a) must be less than or equal to 105 percent of BNRLM as defined under §80.533, less any volume of heating oil produced.

(2) Any volume of NRLM diesel fuel in excess of the volume allowed under (a)(1) of this section will be subject to the 500 ppm sulfur standard under §80.510(a).

(3) High-sulfur NRLM produced under this paragraph must—

(i) Be dyed red pursuant to the provisions of §80.520 at the point of production or importation;

(ii) Be associated with a product transfer document that bears a unique product code as specified under §80.590; and

(iii) Not be delivered into areas specified under §80.510(g)(1).

(4) From June 1, 2007 through May 31, 2010, a refiner that has been approved by EPA as a NRLM diesel fuel small refiner under §80.551(g) may produce at a refinery located in 80.510(g)(2) NRLM diesel fuel that is exempt from the standards under §80.510(a) only if the refiner first obtains approval from the Administrator for a compliance plan. The compliance plan must detail how the refiner will segregate any fuel produced that does not meet the standards under §80.510(a) from the refinery through to the ultimate consumer from fuel having any other designations and from fuel produced by any other refiner. The compliance plan must also identify all ultimate consumers to whom the refiner supplies the fuel that does not meet the standards under §80.510(a).

(b) Option 2: A refiner that has been approved by EPA as a NRLM diesel fuel small refiner under §80.551(g) may produce NR diesel fuel from crude oil from June 1, 2010, through May 31, 2014, and NRLM diesel fuel from crude oil from June 1, 2012 through May 31, 2014 that is subject to the standards under §80.510(a), but only for a refinery located outside the areas specified under §80.510(g)(1).

(1) The volume of NR diesel fuel that may be subject to the 500 ppm sulfur standard from June 1, 2010 through June 30, 2011 must be less than or equal to 113 percent of BNRLM, and from July 1, 2011 through May 31, 2012 must be less than or equal to 96 percent of BNRLM, as defined under §80.533, less any volume of locomotive and marine diesel fuel produced.

(2) The volume of NRLM diesel fuel that may be subject to the 500 ppm sulfur standard from June 1, 2012 through June 30, 2013 must be less than or equal to 113 percent of BNRLM, and from July 1, 2013 through May 31, 2014 must be less than or equal to 96 percent of BNRLM, as defined under §80.533.

(3) NRLM diesel fuel produced in excess of the volume allowed under paragraph (b)(1) of this section will be subject to the standards under §80.510(b) and (c).

(4) 500 ppm sulfur NRLM diesel fuel produced under this paragraph must—

(i) Bear a unique product code as specified under §80.590; and

(ii) Not be sold or delivered into areas specified under §80.510(g)(1).

(5) From June 1, 2010 through May 31, 2012, for NR diesel fuel, and from June 1, 2012 through May 31, 2014 for NRLM diesel fuel, a refiner that has been approved by EPA as a NRLM diesel fuel small refiner under §80.551(g) may produce, at a refinery located in Alaska, NR and NRLM diesel fuel, as applicable, from crude oil that is subject to the standards of §80.510(a), only if the refiner first obtains approval from the Administrator for a compliance plan. The compliance plan must detail how the refiner will segregate any fuel produced subject to the standards under §80.510(a) from the refinery through to the ultimate consumer from fuel having any other designations and from fuel produced by any other refiner. The compliance plan must also identify all ultimate consumers to whom the refiner supplies the fuel that does not meet the standards under §80.510(a).

(c) Option 3: A refiner that has been approved by EPA as a NRLM diesel fuel small refiner under §80.551(g) may generate diesel fuel credits under the provisions of §80.535(b) and (d), except as provided in paragraph (d)(1) of this section.

(d) Option 4: (1) In lieu of Options 1, 2, and 3 of this section, a refiner that has been approved by EPA as a NRLM diesel fuel small refiner under §80.551(g) may choose to adjust its small refiner gasoline sulfur standards, subject to the following conditions:

(i) From June 1, 2006 until the expiration of the refiner's small refiner gasoline sulfur standards (through December 31, 2007 or 2010) 95 percent of the total MVNRLM diesel fuel produced by the refiner must be accurately designated under §80.598(a) as meeting the 15 ppm sulfur standard of §80.510(b).

(ii) The refiner must produce MVNRLM diesel fuel each year or partial year under paragraph (d)(1)(i) of this section at a volume that is equal to or greater than 85 percent of BMVNRLM, as defined in §80.533, calculated on an annual basis.

(2)(i) For a refiner meeting the conditions of paragraph (d)(1) of this section, beginning January 1, 2004, the applicable small refiner's annual average and per-gallon cap gasoline sulfur standards will be the standards of §80.240(a) increased by a factor of 1.20 for the duration of the refiner's small refiner gasoline sulfur standards under §80.240(a) or §80.553 (i.e., through calendar years 2007 or 2010).

(ii) In no case may the per-gallon cap exceed 450 ppm.

(3)(i) If the refiner fails to produce the necessary volume of 15 ppm sulfur MVNRLM diesel fuel by June 1, 2006 and every year thereafter through the deadlines specified under paragraph (d)(1)(i) of this section, the refiner must report this in its annual report under §80.604, and the adjustment of gasoline sulfur standards under paragraph (d)(2)(i) of this section will be considered void as of January 1, 2004.

(ii) If such a refiner had produced gasoline above its interim gasoline sulfur standard of §80.240(a) prior to June 1, 2006, such fuel will not be considered in violation of the small refiner standards under §80.240(a), provided the refiner obtains and uses a quantity of gasoline sulfur credits equal to the volume of gasoline exceeding the small refiner standards multiplied by the number of parts per million by which the gasoline exceeded the small refiner standards.

(e) Multiple refineries. The provisions of this section shall apply separately for each refinery owned or operated by a NRLM diesel fuel small refiner.

(f) Other provisions. From June 1, 2007 through May 31, 2010, a refiner who is an approved motor vehicle diesel fuel small refiner under §80.550(a) but does not qualify as a NRLM diesel fuel small refiner under §80.550(b) may produce NRLM diesel fuel that is exempt from the per-gallon sulfur standard and the cetane or aromatics standard of §80.510(a). This exemption does not apply to diesel fuel sold or intended for sale in the areas listed in §80.510(g)(1) or (g)(2). From June 1, 2010 through May 31, 2012, NR and LM diesel fuel produced by such refiners is subject to the standards under §80.510(b) and beginning June 1, 2012, all NRLM diesel fuel is subject to the standards under §80.510(c).

[69 FR 39179, June 29, 2004, as amended at 71 FR 25718, May 1, 2006]

§80.555   What provisions are available to a large refiner that acquires a small refiner or one or more of its refineries?

(a) In the case of a refiner without approved small refiner status who acquires a refinery from a refiner with approved status as a motor vehicle diesel fuel small refiner or a NRLM diesel fuel small refiner under §80.551(g), the applicable small refiner provisions of §§80.552 and 80.554 may apply to the acquired refinery for a period of up to 30 months from the date of acquisition of the refinery. In no case shall this period extend beyond May 31, 2010 for a refinery acquired from a motor vehicle diesel fuel small refiner or beyond the dates specified in §80.554(a) or (b), as applicable, for a refinery acquired from a NRLM diesel fuel small refiner.

(b) A refiner may apply to EPA for up to an additional six months to comply with the standards of §80.510 or 80.520 for the acquired refinery if more than 30 months would be required for the necessary engineering, permitting, construction, and start-up work to be completed. Such applications must include detailed technical information supporting the need for additional time. EPA will base a decision to approve additional time on information provided by the refiner and on other relevant information. In no case will EPA extend the compliance date beyond May 31, 2010 for a refinery acquired from a motor vehicle diesel fuel small refiner or beyond the dates specified in §80.554(a) or (b), as applicable, for a refinery acquired from a NRLM diesel fuel small refiner.

(c) Refiners who acquire a refinery from a refiner with approved status as a motor vehicle diesel fuel small refiner or a NRLM diesel fuel small refiner under §80.551(g), shall notify EPA in writing no later than 20 days following the acquisition.

[69 FR 39180, June 29, 2004]

§§80.556-80.559   [Reserved]

Other Hardship Provisions

§80.560   How can a refiner seek temporary relief from the requirements of this subpart in case of extreme hardship circumstances?

(a) EPA may, at its discretion, grant a refiner of crude oil that processes crude oil through refinery processing units, for one or more of its refineries, temporary relief from some or all of the provisions of this subpart. Such relief shall be no less stringent than the small refiner compliance options specified in §80.552 for motor vehicle diesel fuel and §80.554 for NRLM diesel fuel. EPA may grant such relief provided that the refiner demonstrates that—

(1) Unusual circumstances exist that impose extreme hardship and significantly affect the refiner's ability to comply by the applicable date; and

(2) It has made best efforts to comply with the requirements of this subpart.

(b)(1) For motor vehicle diesel fuel, applications must be submitted to EPA by June 1, 2002 to the following address: U.S. EPA—Attn: Diesel Hardship, Transportation and Regional Programs Division (6406J), 1200 Pennsylvania Avenue, NW., Washington, DC 20460 (certified mail/return receipt) or Attn: Diesel Hardship, Transportation and Regional Programs Division, 1310 L Street, NW., 6th floor, Washington, DC 20005 (express mail/return receipt). EPA reserves the right to deny applications for appropriate reasons, including unacceptable environmental impact. Approval to distribute motor vehicle diesel fuel not subject to the 15 ppm sulfur standard may be granted for such time period as EPA determines is appropriate, but shall not extend beyond May 31, 2010.

(2) For NRLM diesel fuel, applications must be submitted to EPA by June 1, 2005 to the following address: U.S. EPA—Attn: Diesel Hardship, Transportation and Regional Programs Division (6406J), 1200 Pennsylvania Avenue, NW., Washington, DC 20460 (certified mail/return receipt) or Attn: Diesel Hardship, Transportation and Regional Programs Division, 1310 L Street, NW., 6th floor, Washington, DC 20005 (express mail/return receipt). EPA reserves the right to deny applications for appropriate reasons, including unacceptable environmental impact. Approval to distribute NRLM diesel fuel not subject to the 500 ppm sulfur standard may be granted for such time period as EPA determines is appropriate, but shall not extend beyond May 31, 2010 for NR diesel fuel and May 31, 2012 for NRLM diesel fuel. Approval to distribute NRLM diesel fuel not subject to the 15 ppm sulfur standard may be granted for such time period as EPA determines is appropriate, but shall not extend beyond May 31, 2014.

(c) Applications must include a plan demonstrating how the refiner will comply with the requirements of this subpart as expeditiously as possible. The plan shall include a showing that contracts are or will be in place for engineering and construction of desulfurization equipment a plan for applying for and obtaining any permits necessary for construction or operation, projected timeline for beginning and completing construction, and for beginning actual operation of such equipment, and a description of plans to obtain necessary capital, and a detailed estimate of when the requirements of this subpart will be met.

(d) Applicants must provide, at a minimum, the following information:

(1) Detailed description of efforts to obtain capital for refinery investments and efforts made to obtain credits for compliance under §80.531 for motor vehicle diesel fuel or §§80.535 through 80.536 for NRLM diesel fuel;

(2) Bond rating of entity that owns the refinery (in the case of joint ventures, include the bond rating of the joint venture entity and the bond ratings of all partners; in the case of corporations, include the bond ratings of any parent or subsidiary corporations); and

(3) Estimated capital investment needed to comply with the requirements of this subpart by the applicable date.

(e) In addition to the application requirements of paragraph (b) through (d) of this section, a refiner's application for temporary relief under this paragraph (e) must also include a compliance plan. Such compliance plan shall demonstrate how the refiner will engage in a quality assurance testing program, where appropriate, to ensure that the following conditions are met:

(1)(i) Its motor vehicle diesel fuel subject solely to the sulfur standards under §80.520(c) has not caused motor vehicle diesel fuel subject to the 15 ppm sulfur standard §80.520(a)(1) to fail to comply with that standard; or

(ii) Its NRLM diesel fuel subject solely to the 500 ppm sulfur standard under §80.510(a) has not caused NRLM diesel fuel subject to the 15 ppm sulfur standard under §80.510(b) or (c) to fail to comply with that standard.

(2) The quality assurance program must at least include periodic sampling and testing at the party's own facilities and at downstream facilities in the refiner's or importer's diesel fuel distribution system, to determine compliance with the applicable sulfur standards for both categories of motor vehicle diesel fuel; examination at the party's own facilities and at applicable downstream facilities, of product transfer documents to confirm appropriate transfers and deliveries of both products; and inspection of retailer and wholesale purchaser-consumer pump stands for the presence of the labels and warning signs required under this section. Any violations that are discovered shall be reported to EPA within 48 hours of discovery.

(f) Applications under this section must be accompanied by:

(1) A letter signed by the president, chief operating or chief executive officer of the company, or his/her designee, stating that the information contained in the application is true to the best of his/her knowledge.

(2) The name, address, phone number, facsimile number and e-mail address of a corporate contact person.

(g) Applicants must also provide any other relevant information requested by EPA.

(h) Refiners who are granted a hardship relief standard for any refinery and importers of fuel subject to temporary foreign refiner relief standards, must comply with the requirements of §80.561(f).

(i) EPA may impose any reasonable conditions on waivers under this section, including limitations on the refinery's volume of motor vehicle diesel fuel and NRLM diesel fuel subject to temporary refiner relief standards.

(j) The provisions of this section are available only to refineries that produce diesel fuel from crude.

(k) The individual refinery sulfur standard and the compliance plan will be approved or disapproved by the Administrator, and approval will be effective when the refiner receives an approval letter from EPA. Unless approved, the refiner or, where applicable, the importer must comply with the motor vehicle diesel fuel standard under §80.520(a)(1) by the appropriate compliance date specified in §80.500 or the NRLM diesel fuel standards and compliance dates under §80.510(a), (b), and (c) as applicable.

(l) If EPA finds that a refiner provided false or inaccurate information on its application for hardship relief, EPA's approval of the refiners application will be void ab initio.

[66 FR 5136, Jan. 18, 2001, as amended at 69 FR 39181, June 29, 2004]

§80.561   How can a refiner or importer seek temporary relief from the requirements of this subpart in case of extreme unforeseen circumstances?

In appropriate extreme, unusual, and unforseen circumstances (for example, natural disaster or refinery fire) which are clearly outside the control of the refiner or importer and which could not have been avoided by the exercise of prudence, diligence, and due care, EPA may permit a refiner or importer, for a brief period, to distribute motor vehicle diesel fuel or NRLM diesel fuel which does not meet the requirements of this subpart if:

(a) It is in the public interest to do so (e.g., distribution of the nonconforming diesel fuel is necessary to meet projected shortfalls which cannot otherwise be compensated for);

(b) The refiner or importer exercised prudent planning and was not able to avoid the violation and has taken all reasonable steps to minimize the extent of the nonconformity;

(c) The refiner or importer can show how the requirements for motor vehicle diesel fuel or NRLM diesel fuel will be expeditiously achieved;

(d) The refiner or importer agrees to make up any air quality detriment associated with the nonconforming motor vehicle diesel fuel or NRLM diesel fuel, where practicable;

(e) The refiner or importer pays to the U.S. Treasury an amount equal to the economic benefit of the nonconformity minus the amount expended pursuant to paragraph (d) of this section, in making up the air quality detriment; and

(f)(1) In the case of motor vehicle diesel fuel distributed under this section that does not meet the 15 ppm sulfur standard under §80.520(a)(1), such diesel fuel shall not be distributed for use in model year 2007 or later motor vehicles, and must meet all the requirements and prohibitions of this subpart applicable to diesel fuel meeting the sulfur standard under §80.520(c), or to diesel fuel that is not motor vehicle diesel fuel, as applicable.

(2) In the case of NRLM diesel fuel distributed under this section from June 1, 2007 through May 31, 2010 that does not meet the 500 ppm sulfur standard under §80.510(a), such diesel fuel must meet the requirements and prohibitions applicable to high sulfur NRLM credit fuel under §80.536(f)(1)(i) and (ii).

(3) In the case of NR diesel fuel distributed under this section after May 31, 2010 that does not meet the 15 ppm sulfur standard under §80.510(b), such diesel fuel shall not be distributed for use in model year 2011 or later nonroad engines, and must meet all the requirements and prohibitions of this subpart applicable to diesel fuel meeting the sulfur standard under §80.510(a) for NRLM diesel fuel.

(4) In the case of NRLM diesel fuel distributed under this section after May 31, 2012 that does not meet the 15 ppm sulfur standard under §80.510(c), such diesel fuel shall not be distributed for use in model year 2011 or later nonroad engines, and must meet all the requirements and prohibitions of this subpart applicable to diesel fuel meeting the sulfur standard under §80.510(a) for NRLM diesel fuel.

[66 FR 5136, Jan. 18, 2001, as amended at 69 FR 39181, June 29, 2004; 75 FR 22970, Apr. 30, 2010]

§§80.562-80.569   [Reserved]

Labeling Requirements

§80.570   What labeling requirements apply to retailers and wholesale purchaser-consumers of diesel fuel beginning June 1, 2006?

(a) From June 1, 2006 through November 30, 2010, any retailer or wholesale purchaser-consumer who sells, dispenses, or offers for sale or dispensing, motor vehicle diesel fuel subject to the 15 ppm sulfur standard of §80.520(a)(1), must affix the following conspicuous and legible label, in block letters of no less than 24-point bold type, and printed in a color contrasting with the background, to each pump stand:

ULTRA-LOW SULFUR HIGHWAY DIESEL FUEL (15 ppm Sulfur Maximum)

Required for use in all model year 2007 and later highway diesel vehicles and engines.

Recommended for use in all diesel vehicles and engines.

(b) From June 1, 2006, through November 30, 2010, any retailer or wholesale purchaser-consumer who sells, dispenses, or offers for sale or dispensing, motor vehicle diesel fuel subject to the 500 ppm sulfur standard of §80.520(c), must prominently and conspicuously display in the immediate area of each pump stand from which motor vehicle fuel subject to the 500 ppm sulfur standard is offered for sale or dispensing, the following legible label, in block letters of no less than 24-point bold type, printed in a color contrasting with the background:

LOW SULFUR HIGHWAY DIESEL FUEL (500 ppm Sulfur Maximum)

WARNING

Federal law prohibits use in model year 2007 and later highway vehicles and engines.

Its use may damage these vehicles and engines.

(c) From June 1, 2006 through May 31, 2007, any retailer or wholesale purchaser-consumer who sells, dispenses, or offers for sale or dispensing, diesel fuel for non-motor vehicle equipment that does not meet the standards for motor vehicle diesel fuel, must affix the following conspicuous and legible label, in block letters of no less than 24-point bold type, and printed in a color contrasting with the background, to each pump stand:

NON-HIGHWAY DIESEL FUEL (May Exceed 500 ppm Sulfur)

WARNING

Federal law prohibits use in highway vehicles or engines.

Its use may damage these vehicles and engines.

(d) The labels required by paragraphs (a) through (c) of this section must be placed on the vertical surface of each pump housing and on each side that has gallon and price meters. The labels shall be on the upper two-thirds of the pump, in a location where they are clearly visible.

(e) Alternative labels to those specified in paragraphs (a) through (c) of this section may be used as approved by EPA.

[69 FR 39182, June 29, 2004, as amended at 71 FR 25718, May 1, 2006; 75 FR 22970, Apr. 30, 2010]

§80.571   What labeling requirements apply to retailers and wholesale purchaser-consumers of NRLM diesel fuel or heating oil beginning June 1, 2007?

Any retailer or wholesale purchaser-consumer who sells, dispenses, or offers for sale or dispensing nonroad, locomotive or marine (NRLM) diesel fuel (including nonroad (NR) and locomotive or marine (LM)), or heating oil, must prominently and conspicuously display in the immediate area of each pump stand from which non-highway diesel fuel is offered for sale or dispensing, one of the following legible labels, as applicable, in block letters of no less than 24-point bold type, printed in a color contrasting with the background:

(a) From June 1, 2007 through May 31, 2010, for pumps dispensing NRLM diesel fuel meeting the 15 ppm sulfur standard of §80.510(b):

ULTRA-LOW SULFUR NON-HIGHWAY DIESEL FUEL (15 ppm Sulfur Maximum)

Required for use in all model year 2011 and newer nonroad diesel engines.

Recommended for use in all nonroad, locomotive, and marine diesel engines.

WARNING

Federal Law prohibits use in highway vehicles or engines.

(b) From June 1, 2007, through September 30, 2010, for pumps dispensing NRLM diesel fuel meeting the 500 ppm sulfur standard of §80.510(a):

LOW SULFUR NON-HIGHWAY DIESEL FUEL (500 ppm Sulfur Maximum)

WARNING

Federal Law prohibits use in highway vehicles or engines.

(c) From June 1, 2007 through September 30, 2010, for pumps dispensing NRLM diesel fuel not meeting, or not offered as meeting, the 500 ppm sulfur standard of §80.510(a) or the 15 ppm sulfur standard of §80.510(b):

HIGH SULFUR NON-HIGHWAY DIESEL FUEL (May Exceed 500 ppm Sulfur)

WARNING

Federal law prohibits use in highway vehicles or engines.

May damage nonroad diesel engines required to use low-sulfur or ultra-low sulfur diesel fuel.

(d) From June 1, 2007, and beyond, for pumps dispensing non-motor vehicle diesel fuel for use other than in nonroad, locomotive, or marine engines, such as for use as heating oil:

HEATING OIL (May Exceed 500 ppm Sulfur)

WARNING

Federal law prohibits use in highway vehicles or engines, or in nonroad, locomotive, or marine diesel engines.

Its use may damage these diesel engines.

(e) The labels required by paragraphs (a) through (d) of this section must be placed on the vertical surface of each pump housing and on each side that has gallon and price meters. The labels shall be on the upper two-thirds of the pump, in a location where they are clearly visible.

(f) Alternative labels to those specified in paragraphs (a) through (d) of this section may be used as approved by EPA.

[69 FR 39182, June 29, 2004, as amended at 71 FR 25718, May 1, 2006; 75 FR 22970, Apr. 30, 2010]

§80.572   What labeling requirements apply to retailers and wholesale purchaser-consumers of Motor Vehicle, NR, LM and NRLM diesel fuel and heating oil beginning June 1, 2010?

Any retailer or wholesale purchaser-consumer who sells, dispenses, or offers for sale or dispensing nonroad, locomotive or marine (NRLM) diesel fuel (including nonroad (NR) and locomotive or marine (LM)), or heating oil, must prominently and conspicuously display in the immediate area of each pump stand from which non-highway diesel fuel is offered for sale or dispensing, one of the following legible labels, as applicable, in block letters of no less than 24-point bold type, printed in a color contrasting with the background:

(a) From June 1, 2010 through November 30, 2014, any retailer or wholesale purchaser-consumer who sells, dispenses, or offers for sale or dispensing, motor vehicle diesel fuel subject to the 15 ppm sulfur standard of §80.520(a)(1), must affix the following conspicuous and legible label, in block letters of no less than 24-point bold type, and printed in a color contrasting with the background, to each pump stand:

ULTRA-LOW SULFUR HIGHWAY DIESEL FUEL (15 ppm Sulfur Maximum)

Required for use in all highway diesel vehicles and engines.

Recommended for use in all diesel vehicles and engines.

(b) From June 1, 2010, through September 30, 2012, for pumps dispensing NR diesel fuel subject to the 15 ppm sulfur standard of §80.510(b):

ULTRA-LOW SULFUR NON-HIGHWAY DIESEL FUEL (15 ppm Sulfur Maximum)

Required for use in all model year 2011 and later nonroad diesel engines.

Recommended for use in all other non-highway diesel engines.

WARNING

Federal law prohibits use in highway vehicles or engines.

(c) From June 1, 2010 through September 30, 2014, for pumps dispensing NRLM diesel fuel subject to the 500 ppm sulfur standard of §80.510(a):

LOW SULFUR NON-HIGHWAY DIESEL FUEL (500 ppm Sulfur Maximum)

WARNING

Federal law prohibits use in all model year 2011 and newer nonroad engines.

May damage model year 2011 and newer nonroad engines.

Federal law prohibits use in highway vehicles or engines.

(d) From June 1, 2010 through September 30, 2012 and from February 25, 2013 and thereafter, for pumps dispensing LM diesel fuel subject to the 500 ppm sulfur standard of §80.510(a):

LOW SULFUR LOCOMOTIVE AND MARINE DIESEL FUEL (500 ppm Sulfur Maximum)

WARNING

Federal law prohibits use in nonroad engines or in highway vehicles or engines.

(e) The labels required by paragraphs (a) through (d) of this section must be placed on the vertical surface of each pump housing and on each side that has gallon and price meters. The labels shall be on the upper two-thirds of the pump, in a location where they are clearly visible.

(f) Alternative labels to those specified in paragraphs (a) through (d) of this section may be used as approved by EPA.

[69 FR 39183, June 29, 2004, as amended at 71 FR 25718, May 1, 2006; 75 FR 22970, Apr. 30, 2010; 77 FR 75880, Dec. 26, 2012; 79 FR 23653, Apr. 28, 2014]

§80.573   What labeling requirements apply to retailers and wholesale purchaser-consumers of NRLM diesel fuel and heating oil beginning June 1, 2012?

Any retailer or wholesale purchaser-consumer who sells, dispenses, or offers for sale or dispensing nonroad, locomotive or marine (NRLM) diesel fuel (including nonroad (NR) and locomotive or marine (LM)), or heating oil, must prominently and conspicuously display in the immediate area of each pump stand from which non-highway diesel fuel is offered for sale or dispensing, one of the following legible labels, as applicable, in block letters of no less than 24-point bold type, printed in a color contrasting with the background:

(a) From June 1, 2012 through September 30, 2014, for pumps dispensing NRLM diesel fuel subject to the 15 ppm sulfur standard of §80.510(c):

ULTRA-LOW SULFUR NON-HIGHWAY DIESEL FUEL (15 ppm Sulfur Maximum)

Required for use in all model year 2011 and later nonroad diesel engines.

Recommended for use in all other non-highway diesel engines.

WARNING

Federal law prohibits use in highway vehicles or engines.

(b) The labels required by paragraph (a) of this section must be placed on the vertical surface of each pump housing and on each side that has gallon and price meters. The labels shall be on the upper two-thirds of the pump, in a location where they are clearly visible.

(c) Alternative labels to those specified in paragraph (a) of this section may be used as approved by EPA.

[69 FR 39183, June 29, 2004, as amended at 71 FR 25718, May 1, 2006; 75 FR 22970, Apr. 30, 2010; 79 FR 23653, Apr. 28, 2014]

§80.574   What labeling requirements apply to retailers and wholesale purchaser-consumers of ECA marine fuel beginning June 1, 2014?

(a) Any retailer or wholesale purchaser-consumer who sells, dispenses, or offers for sale or dispensing ECA marine fuel must prominently and conspicuously display in the immediate area of each pump stand from which ECA marine fuel is offered for sale or dispensing, one of the following legible labels, as applicable, in block letters of no less than 24-point bold type, printed in a color contrasting with the background:

(1) From June 1, 2014 and beyond, for pumps dispensing ECA marine fuel subject to the 1,000 ppm sulfur standard of §80.510(k):

1,000 ppm SULFUR ECA MARINE FUEL (1,000 ppm Sulfur Maximum).

For use in Category 3 (C3) marine vessels only.

WARNING

Federal law prohibits use in any engine that is not installed on a C3 marine vessel; use of fuel oil with a sulfur content greater than 1,000 ppm in an ECA is prohibited except as allowed by 40 CFR part 1043.

(2) The labels required by paragraph (a)(1) of this section must be placed on the vertical surface of each pump housing and on each side that has gallon and price meters. The labels shall be on the upper two-thirds of the pump, in a location where they are clearly visible.

(b) Alternative labels to those specified in paragraph (a) of this section may be used as approved by EPA. Send requests to—

(1) For US Mail: U.S. EPA, Attn: Diesel Sulfur Alternative Label Request, 6406J, 1200 Pennsylvania Avenue NW., Washington, DC 20460.

(2) [Reserved]

[79 FR 23653, Apr. 28, 2014]

§§80.575-80.579   [Reserved]

Sampling and Testing

§80.580   What are the sampling and testing methods for sulfur?

The sulfur content of diesel fuel and diesel fuel additives is to be determined in accordance with this section.

(a) Sampling method. The applicable sampling methodology is provided in §80.330(b).

(b) Test method for sulfur—(1) For ECA marine fuel subject to the 1,000 ppm sulfur standard of §80.510(k), sulfur content may be determined using ASTM D2622 (incorporated by reference, see paragraph (e) of this section).

(2) For motor vehicle diesel fuel and diesel fuel additives subject to the 500 ppm sulfur standard of §80.520(c), and NRLM diesel fuel subject to the 500 ppm sulfur standard of §80.510(a)(1), sulfur content may be determined using ASTM D2622 (incorporated by reference, see paragraph (e) of this section).

(3) Beginning August 30, 2004, for motor vehicle diesel fuel and diesel fuel additives subject to the 15 ppm sulfur standard of §80.520(a)(1), sulfur content may be determined using any test method approved under §80.585.

(4) Beginning August 30, 2004, for NRLM diesel fuel and diesel fuel additives subject to the 15 ppm standard of §80.510(b), sulfur content may be determined using any test method approved under §80.585.

(c) Alternative test methods for sulfur—(1) Options for testing sulfur content of 1,000 ppm diesel fuel. (i) For ECA marine fuel subject to the 1,000 ppm sulfur standard of §80.510(k), sulfur content may be determined using ASTM D4294, ASTM D5453, or ASTM D6920 (all incorporated by reference, see paragraph (e) of this section), provided that the refiner or importer test result is correlated with the appropriate method specified in paragraph (b)(1) of this section; or

(ii) For ECA marine fuel subject to the 1,000 ppm sulfur standard of §80.510(k), sulfur content may be determined using any test method approved under §80.585.

(2) Options for testing sulfur content of 500 ppm diesel fuel. (i) For motor vehicle diesel fuel and diesel fuel additives subject to the 500 ppm sulfur standard of §80.520(c), and for NRLM diesel fuel subject to the 500 ppm sulfur standard of §80.510(a), sulfur content may be determined using ASTM D4294, ASTM D5453, or ASTM D6920 (all incorporated by reference, see paragraph (e) of this section), provided that the refiner or importer test result is correlated with the appropriate method specified in paragraph (b)(2) of this section; or

(ii) For motor vehicle diesel fuel and diesel fuel additives subject to the 500 ppm sulfur standard of §80.520(c), and for NRLM diesel fuel subject to the 500 ppm sulfur standard of §80.510(a), sulfur content may be determined using any test method approved under §80.585.

(d) Adjustment factor for downstream test results. (1) Except as specified in paragraph (d)(1)(i) of this section, an adjustment factor of negative two ppm sulfur shall be applied to the test results from any testing of motor vehicle diesel fuel or NRLM diesel fuel downstream of the refinery or import facility, to account for test variability, but only for testing of motor vehicle diesel fuel or NRLM diesel fuel identified as subject to the 15 ppm sulfur standard of §80.510(b) or §80.520(a)(1).

(i) Prior to October 15, 2008 an adjustment factor of negative three ppm sulfur shall be applied to the test results, to account for test variability, but only for testing of motor vehicle diesel fuel or NRLM diesel fuel identified as subject to the 15 ppm sulfur standard of §80.510(b) or §80.520(a)(1).

(ii) [Reserved]

(2) In addition to the adjustment factor provided in paragraph (d)(1)(i) of this section, prior to September 1, 2006, an adjustment factor of negative 7 ppm shall be applied to the test results from any testing of motor vehicle diesel fuel downstream of the refinery or import facility, to facilitate the transition to ULSD fuel, but only for testing of motor vehicle diesel fuel identified as subject to the 15 ppm sulfur standard of §80.520(a)(1).

(3) In addition to the adjustment factor provided in paragraph (d)(1)(i) of this section, prior to October 15, 2006, an adjustment factor of negative 7 ppm shall be applied to the test results from any testing of motor vehicle diesel fuel at any retail outlet or wholesale purchaser-consumer facility, to facilitate the transition to ULSD fuel, but only for testing of motor vehicle diesel fuel identified as subject to the 15 ppm sulfur standard of §80.520(a)(1).

(e) Materials incorporated by reference. The published materials identified in this section are incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, a document must be published in the Federal Register and the material must be available to the public. All approved materials are available for inspection at the Air and Radiation Docket and Information Center (Air Docket) in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave. NW., Washington, DC. The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number of the EPA/DC Public Reading Room is (202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742. These approved materials are also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030 or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. In addition, these materials are available from the sources listed below.

(1) ASTM International material. The following standards are available from ASTM International, 100 Barr Harbor Dr., P.O. Box C700, West Conshohocken, PA 19428-2959, (877) 909-ASTM, or http://www.astm.org:

(i) ASTM D2622-10, Standard Test Method for Sulfur in Petroleum Products by Wavelength Dispersive X-ray Fluorescence Spectrometry, approved February 15, 2010.

(ii) ASTM D4294-10, Standard Test Method for Sulfur in Petroleum and Petroleum Products by Energy Dispersive X-ray Fluorescence Spectrometry, approved February 15, 2010.

(iii) ASTM D5453-12, Standard Test Method for Determination of Total Sulfur in Light Hydrocarbons, Spark Ignition Engine Fuel, Diesel Engine Fuel, and Engine Oil by Ultraviolet Fluorescence, approved November 1, 2012.

(iv) ASTM D6920-13, Standard Test Method for Total Sulfur in Naphthas, Distillates, Reformulated Gasolines, Diesels, Biodiesels, and Motor Fuels by Oxidative Combustion and Electrochemical Detection, approved September 15, 2013.

(2) [Reserved]

[69 FR 39184, June 29, 2004, as amended at 70 FR 40896, July 15, 2005; 70 FR 70510, Nov. 22, 2005; 71 FR 16500, Apr. 3, 2006; 71 FR 25719, May 1, 2006; 73 FR 74357, Dec. 8, 2008; 75 FR 22971, Apr. 30, 2010; 79 FR 23653, Apr. 28, 2014]

§80.581   What are the batch testing and sample retention requirements for motor vehicle diesel fuel, NRLM diesel fuel, and ECA marine fuel?

(a) Beginning on June 1, 2006 (or earlier pursuant to §80.531), for motor vehicle diesel fuel, and beginning June 1, 2010 (or earlier pursuant to §80.535), for NRLM diesel fuel, and beginning June 1, 2014, for ECA marine fuel, each refiner and importer shall collect a representative sample from each batch of motor vehicle or NRLM diesel fuel produced or imported and subject to the 15 ppm sulfur content standard, or ECA marine fuel subject to the 1,000 ppm sulfur content standard. Batch, for the purposes of this section, means batch as defined under §80.2 but without the reference to transfer of custody from one facility to another facility.

(b) Except as provided in paragraph (c) of this section, the refiner or importer shall test each sample collected pursuant to paragraph (a) of this section to determine its sulfur content for compliance with the requirements of this subpart prior to the diesel fuel leaving the refinery or import facility, using an appropriate sampling and testing method as specified in §80.580.

(c)(1) Any refiner who produces motor vehicle, NRLM diesel fuel, or ECA marine fuel using computer-controlled in-line blending equipment, including the use of an on-line analyzer test method that is approved under the provisions of §80.580, and who, subsequent to the production of the diesel fuel batch tests a composited sample of the batch under the provisions of §80.580 for purposes of designation and reporting, is exempt from the requirement of paragraph (b) of this section to obtain the test result required under this section prior to the diesel fuel leaving the refinery, provided that the refiner obtains approval from EPA. The requirement of this paragraph (c)(1) that the in-line blending equipment must include an on-line analyzer test method that is approved under the provisions of §80.580 is effective beginning June 1, 2006.

(2) To obtain an exemption from paragraph (b) of this section, the refiner must submit to EPA all the information required under §80.65(f)(4)(i)(A). A letter signed by the president, chief operating or chief executive officer of the company, or his/her designee, stating that the information contained in the submission is true to the best of his/her belief must accompany any submission under this paragraph (c)(2).

(3) Refiners who seek an exemption under paragraph (c)(2) of this section must comply with any request by EPA for additional information or any other requirements that EPA includes as part of the exemption.

(4) Within 60 days of EPA's receipt of a submission under paragraph (c)(2) of this section, EPA will notify the refiner if the exemption is not approved or of any deficiencies in the refiner's submission, or if any additional information is required or other requirements are included in the exemption pursuant to paragraph (c)(3) of this section. In the absence of such notification from EPA, the effective date of an exemption under this paragraph (c) is 60 days from EPA's receipt of the refiner's submission.

(5) EPA reserves the right to modify the requirements of an exemption under this paragraph (c), in whole or in part, at any time, if EPA determines that the refiner's operation does not effectively or adequately control, monitor or document the sulfur content of the refinery's diesel fuel production, or if EPA determines that any other circumstances exist which merit modification of the requirements of an exemption, such as advancements in the state of the art for in-line blending measurement which allow for additional control or more accurate monitoring or documentation of sulfur content. If EPA finds that a refiner provided false or inaccurate information in any submission required for an exemption under this section, upon notification from EPA, the refiner's exemption will be void ab initio.

(d) All test results under this section shall be retained for five years and must be provided to EPA upon request.

(e) Samples collected under this section must be retained for at least 30 days and provided to EPA upon request.

[69 FR 39184, June 29, 2004, as amended at 71 FR 25719, May 1, 2006; 75 FR 22971, Apr. 30, 2010]

§80.582   What are the sampling and testing methods for the fuel marker?

For heating oil and NRLM diesel fuel subject to the fuel marker requirement in §80.510(d), (e), or (f), the identification of the presence and concentration of the fuel marker in diesel fuel may be determined using the test procedures qualified in accordance with the requirements in this section.

(a) Sampling and testing for methods for the fuel marker. The sampling, sample preparation, and testing methods qualified for use in accordance with the requirements of this section may involve the use of hazardous materials, operations and equipment. This section does not address the associated safety problems which may exist. It is the responsibility of the user of the procedures specified in this section to establish appropriate safety and health practices prior to their use. It is also the responsibility of the user to dispose of any byproducts which might result from conducting these procedures in a manner consistent with applicable safety and health requirements.

(b) What are the precision and accuracy criteria for qualification of fuel marker test methods?—(1) Precision. A standard deviation of less than 0.10 milligrams per liter is required, computed from the results of a minimum of 20 repeat tests made over 20 days on samples taken from a homogeneous commercially available diesel fuel which meets the applicable industry consensus and federal regulatory specifications and which contains the fuel marker at a concentration in the range of 0.10 to 8 milligrams per liter. In order to qualify, the 20 results must be a series of tests on the same material and there must be a sequential record of the analysis with no omissions. A laboratory facility may exclude a given sample or test result only if the exclusion is for a valid reason under good laboratory practices and it maintains records regarding the sample and test results and the reason for excluding them.

(2) Accuracy. (i) The arithmetic average of a continuous series of at least 10 tests performed on a commercially available marker solvent yellow 124 standard in the range of 0.10 to 1 milligrams per liter shall not differ from the ARV of that standard by more than 0.05 milligrams per liter.

(ii) The arithmetic average of a continuous series of at least 10 tests performed on a commercially available marker solvent yellow 124 standard in the range of 4 to 10 milligrams per liter shall not differ from the ARV of that standard by more than 0.05 milligrams per liter.

(iii) In applying the tests of paragraphs (b)(2)(i) and (ii) of this section, individual test results shall be compensated for any known chemical interferences.

(c) What process must a test facility follow in order to qualify a test method for determining the fuel marker content of distillate fuels and how will EPA qualify or decline to qualify a test method?—(1) Qualification of test methods approved by voluntary consensus-based standards bodies. Any standard test method developed by a Voluntary Consensus-Based Standards Body, such as the American Society for Testing and Materials (ASTM) or International Standards Organization (ISO), shall be considered a qualified test method for determining the fuel marker content of distillate fuel provided that it meets the precision and accuracy criteria under paragraph (b) of this section. The qualification of a test method is limited to the single test facility that performed the testing for accuracy and precision. The individual facility must submit the accuracy and precision results for each method, including information on the date and time of each test measurement used to demonstrate precision, following procedures established by the Administrator.

(2) Qualification of test methods that have not been approved by a voluntary consensus-based standards body. A test method that has not been approved by a voluntary consensus-based standards body may be qualified upon approval by the Administrator. The following information must be submitted in the application for approval by each test facility, for each test method that it wishes to have approved:

(i) Full test method documentation, including a description of the technology and/or instrumentation that makes the method functional.

(ii) Information demonstrating that the test method meets the accuracy and precision criteria under paragraph (b) of this section, including information on the date and time of each test measurement used to demonstrate precision.

(iii) Samples used for precision and accuracy determination must be retained for 90 days.

(iv) If requested by the Administrator, test results utilizing the method and performed on a sample of commercially available distillate fuel which meets the applicable industry consensus and federal regulatory specifications and which contains the fuel marker.

(v) Any additional information requested by the Administrator and necessary to render a decision as to qualification of the test method.

(vi) The qualification of a test method is limited to the single test facility that performed the testing for accuracy and precision and any other required testing.

(3)(i) Within 90 days of receipt of all materials required to be submitted under paragraph (c)(1) or (c)(2) of this section, the Administrator shall determine whether to qualify the test method under this section. The Administrator shall qualify the test method if all materials required under this section are received and the test method meets the accuracy and precision criteria of paragraph (b) of this section.

(ii) If the Administrator denies approval of the test method, within 90 days of receipt of all materials required to be submitted under this section, the Administrator will notify the applicant of the reasons for not approving the method. If the Administrator does not notify the applicant within 90 days of receipt of the application, that the test method is not approved, then the test method shall be deemed approved.

(iii) If the Administrator finds that an individual test facility has provided false or inaccurate information under this section, upon notice from the Administrator, the qualification shall be void ab initio.

(iv) The qualification of any test method under this paragraph (c) shall be valid for the duration of the period during which the fuel marker requirements remain applicable under this subpart.

(d) Quality control procedures for fuel marker measurement instrumentation. A test shall not be considered a test using a qualified test method unless the following quality control procedures are performed separately for each instrument used to make measurements:

(1) Follow all mandatory provisions of ASTM D 6299-02 and construct control charts from the mandatory quality control testing prescribed in paragraph 7.1 of the reference method, following guidelines under A 1.5.1 for individual observation charts and A 1.5.2 for moving range charts. The Director of the Federal Register approved the incorporation by reference of ASTM D 6299-02, Standard Practice for Applying Statistical Quality Assurance Techniques to Evaluate Analytical Measurement System Performance, as prescribed in 5 U.S.C. 552(a) and 1 CFR part 51. Anyone may purchase copies of this standard from the American Society for Testing and Materials, 100 Barr Harbor Dr., West Conshohocken, PA 19428. Anyone may inspect copies at the U.S. EPA, Air and Radiation Docket and Information Center, 1301 Constitution Ave., NW., Room B102, EPA West Building, Washington, DC 20460 or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

(2) Follow paragraph 7.3.1 of ASTM D 6299-02 to check standards using a reference material at least monthly or following any major change to the laboratory equipment or test procedure. Any deviation from the accepted reference value of a check standard greater than 0.10 milligrams per liter must be investigated.

(3) Samples of tested batches must be retained for 30 days or the period equal to the interval between quality control sample tests, whichever is longer.

(4) Upon discovery of any quality control testing violation of paragraph A 1.5.1.3 or A 1.5.2.1 of ASTM D 6299-02, or any check standard deviation greater than 0.10 milligrams per liter, conduct an investigation into the cause of such violation or deviation and, after restoring method performance to statistical control, retest retained samples from batches originally tested since the last satisfactory quality control material or check standard testing occasion.

(5) Retain results of quality control testing and retesting of retained samples under paragraph (d)(3) of this section for five years.

[69 FR 39185, June 29, 2004]

§80.583   What alternative sampling and testing requirements apply to importers who transport motor vehicle diesel fuel, NRLM diesel fuel, or ECA marine fuel by truck or rail car?

Importers who import diesel fuel subject to the 15 ppm sulfur standard under §80.510(b) or (c) or 80.520(a) into the United States by truck or by rail car may comply with the following requirements instead of the requirements to sample and test each batch of fuel designated as subject to the 15 ppm sulfur standard under §80.581 otherwise applicable to importers:

(a) Terminal testing. For purposes of determining compliance with the 15 ppm sulfur standard, the importer may use test results for sulfur content testing conducted by the foreign truck-loading or rail car-loading terminal operator for diesel fuel contained in the storage tank from which trucks or rail cars used to transport diesel fuel designated as subject to the 15 ppm sulfur content standard into the United States are loaded, provided the following conditions are met:

(1) The sampling and testing shall be performed after each receipt of diesel fuel into the storage tank, or immediately before each transfer of diesel fuel to the importer's truck or rail car.

(2) The sampling and testing shall be performed according to §80.580.

(3) At the time of each transfer of diesel fuel to the importer's truck or rail car for import to the U.S., the importer must obtain a copy of the terminal test result that indicates the sulfur content of the truck or rail car load, or truck or rail car compartment load, as applicable.

(b) Quality assurance program. The importer must conduct a quality assurance program, as specified in this paragraph (b), for each truck or rail car loading terminal.

(1) Quality assurance samples must be obtained from the truck-loading or rail car loading terminal and tested by the importer, or by an independent laboratory, and the terminal operator must not know in advance when samples are to be collected.

(2) The sampling and testing must be performed using the methods specified in §80.580.

(3) The frequency of the quality assurance sampling and testing must be at least one sample for each 50 of an importer's trucks or rail cars that are loaded at a terminal, or one sample per month, whichever is more frequent.

(c) Party required to conduct quality assurance testing. The quality assurance program under paragraph (b) of this section shall be conducted by the importer. In the alternative, this testing may be conducted by an independent laboratory that meets the criteria under §80.65(f)(2)(iii), provided the importer receives copies of all results of tests conducted no later than 21 days after the sample was taken.

(d) Alternative batch designations. For purposes of maintaining batch records under §§80.592, 80.600, and 80.602, designation of batches under §80.598, and reporting under §§80.593, 80.601, and 80.604:

(1) In lieu of treating each portion of a tank truck compartment delivered to a different facility as a different batch, a truck importer may treat each compartment as a batch, if all the fuel in the compartment is delivered only to retail outlets, wholesale purchaser-consumers or other end users. Where different compartments contain homogeneous product of identical designations, the total volume of those compartments may be treated as a single batch, if the entire volume is delivered only to retail outlets, wholesale purchaser-consumers or other ultimate consumers.

(2) Each portion of a rail car (or rail cars) delivery of a different designation or each delivery to a different facility is considered to be a separate batch.

(e) EPA inspections of terminals. EPA inspectors or auditors must be given full and immediate access to the truck or rail car-loading terminal and any laboratory at which samples of diesel fuel collected at the terminal are analyzed, and must be allowed to conduct inspections, review records, collect diesel fuel samples and perform audits. These inspections or audits may be either announced or unannounced.

(f) Certified DFR-Diesel. This section does not apply to Certified DFR-Diesel as defined in §80.620.

(g) Effect of noncompliance. If any of the requirements of this section are not met, all motor vehicle diesel fuel and NRLM diesel fuel imported by the truck or rail car importer during the time the requirements are not met is deemed in violation of the 15 ppm sulfur diesel fuel standards in §80.510(b) or (c) or §80.520(a), as applicable. Additionally, if any requirement is not met, EPA may notify the importer of the violation, and, if the requirement is not fulfilled within 10 days of notification, the truck importer may not in the future use the sampling and testing provisions in this section in lieu of the provisions in §80.581.

[69 FR 39186, June 29, 2004, as amended at 75 FR 22971, Apr. 30, 2010]

§80.584   What are the precision and accuracy criteria for approval of test methods for determining the sulfur content of motor vehicle diesel fuel, NRLM diesel fuel, and ECA marine fuel?

(a) Precision. (1) For motor vehicle diesel fuel and diesel fuel additives subject to the 15 ppm sulfur standard of §80.520(a)(1) and NRLM diesel fuel and diesel fuel additives subject to the 15 ppm sulfur standard of §80.510(b) and (c), a standard deviation less than 0.72 ppm, computed from the results of a minimum of 20 repeat tests made over 20 days on samples taken from a single homogeneous commercially available diesel fuel with a sulfur content in the range of 5-15 ppm. The 20 results must be a series of tests with a sequential record of the analyses and no omissions. A laboratory facility may exclude a given sample or test result only if the exclusion is for a valid reason under good laboratory practices and it maintains records regarding the sample and test results and the reason for excluding them.

(2) For motor vehicle diesel fuel subject to the 500 ppm sulfur standard of §80.520(c), and for NRLM diesel fuel subject to the 500 ppm sulfur standard of §80.510(a), of a standard deviation less than 9.68 ppm, computed from the results of a minimum of 20 repeat tests made over 20 days on samples taken from a single homogeneous commercially available diesel fuel with a sulfur content in the range of 200-500 ppm. The 20 results must be a series of tests with a sequential record of the analyses and no omissions. A laboratory facility may exclude a given sample or test result only if the exclusion is for a valid reason under good laboratory practices and it maintains records regarding the sample and test results and the reason for excluding them.

(3) For ECA marine fuel subject to the 1,000 ppm sulfur standard of §80.510(k), of a standard deviation less than 18.07 ppm, computed from the results of a minimum of 20 repeat tests made over 20 days on samples taken from a single homogeneous commercially available diesel fuel with a sulfur content in the range of 700-1,000 ppm. The 20 results must be a series of tests with a sequential record of the analyses and no omissions. A laboratory facility may exclude a given sample or test result only if the exclusion is for a valid reason under good laboratory practices and it maintains records regarding the sample and test results and the reason for excluding them.

(b) Accuracy. (1) For motor vehicle diesel fuel and diesel fuel additives subject to the 15 ppm sulfur standard of §80.520(a)(1) and NRLM diesel fuel and diesel fuel additives subject to the 15 ppm sulfur standard of §80.510(b) and (c):

(i) The arithmetic average of a continuous series of at least 10 tests performed on a commercially available gravimetric sulfur standard in the range of 1-10 ppm sulfur shall not differ from the accepted reference value (ARV) of that standard by more than 0.54 ppm sulfur;

(ii) The arithmetic average of a continuous series of at least 10 tests performed on a commercially available gravimetric sulfur standard in the range of 10-20 ppm sulfur shall not differ from the ARV of that standard by more than 0.54 ppm sulfur; and

(iii) In applying the tests of paragraphs (b)(1)(i) and (ii) of this section, individual test results shall be compensated for any known chemical interferences.

(2) For motor vehicle diesel fuel subject to the 500 ppm sulfur standard of §80.520(c), and for NRLM diesel fuel subject to the 500 ppm sulfur standard of §80.510(a):

(i) The arithmetic average of a continuous series of at least 10 tests performed on a commercially available gravimetric sulfur standard in the range of 100-200 ppm sulfur shall not differ from the ARV of that standard by more than 7.26 ppm sulfur;

(ii) The arithmetic average of a continuous series of at least 10 tests performed on a commercially available gravimetric sulfur standard in the range of 400-500 ppm sulfur shall not differ from the ARV of that standard by more than 7.26 ppm sulfur; and

(iii) In applying the tests of paragraphs (b)(2)(i) and (ii) of this section, individual test results shall be compensated for any known chemical interferences.

(3) For ECA marine fuel subject to the 1,000 ppm sulfur standard of §80.510(k):

(i) The arithmetic average of a continuous series of at least 10 tests performed on a commercially available gravimetric sulfur standard in the range of 300-400 ppm sulfur shall not differ from the ARV of that standard by more than 13.55 ppm sulfur;

(ii) The arithmetic average of a continuous series of at least 10 tests performed on a commercially available gravimetric sulfur standard in the range of 900-1,000 ppm sulfur shall not differ from the ARV of that standard by more than 13.55 ppm sulfur; and

(iii) In applying the tests of paragraphs (b)(3)(i) and (ii) of this section, individual test results shall be compensated for any known chemical interferences.

[69 FR 39187, June 29, 2004, as amended at 75 FR 22971, Apr. 30, 2010]

§80.585   What is the process for approval of a test method for determining the sulfur content of diesel or ECA marine fuel?

(a) Approval of test methods approved by voluntary consensus-based standards bodies. For such a method to be approved, the following information must be submitted to the Administrator by each test facility for each test method that it wishes to have approved: Any test method approved by a voluntary consensus-based standards body, such as the American Society for Testing and Materials (ASTM) or International Standards Organization (ISO), shall be approved as a test method for determining the sulfur content of diesel fuel if it meets the applicable accuracy and precision criteria under §80.584. The approval of a test method is limited to the single test facility that performed the testing for accuracy and precision. The individual facility must submit the accuracy and precision results for each method, including information on the date and time of each test measurement used to demonstrate precision, following procedures established by the Administrator.

(b) Approval of test methods not approved by a voluntary consensus-based standards body. For such a method to be approved, the following information must be submitted to the Administrator by each test facility for each test method that it wishes to have approved:

(1) Full test method documentation, including a description of the technology and/or instrumentation that makes the method functional.

(2) Information demonstrating that the test method meets the applicable accuracy and precision criteria of §80.584, including information on the date and time of each test measurement used to demonstrate precision.

(3) If requested by the Administrator, test results from use of the method to analyze samples of commercially available fuel provided by EPA.

(4) Any additional information requested by the Administrator and necessary to render a decision as to approval of the test method.

(c) Sample retention. Samples used for precision and accuracy determination must be retained for 90 days.

(d) EPA approval. (1) Within 90 days of receipt of all materials required to be submitted under paragraph (a) or (b) of this section, the Administrator shall determine whether the test method is approved under this section.

(2) If the Administrator denies approval of the test method, within 90 days of receipt of all materials required to be submitted under paragraph (a) or (b) of this section, the Administrator will notify the applicant of the reasons for not approving the method. If the Administrator does not notify the applicant within 90 days of receipt of the application, that the test method is not approved, then the test method shall be deemed approved.

(3) If the Administrator finds that an individual test facility has provided false or inaccurate information under this section, upon notice from the Administrator the approval shall be void ab initio.

(4) The approval of any test method under paragraph (b) of this section shall be valid for five years from the date of approval by the Administrator. After the five year period has ceased, in order for the test method approval to remain valid, the test method must be resubmitted for approval with applicable precision and accuracy information contained in §80.584(a) and (b). If, however, the test method is later approved by a voluntary consensus-based standards body, the approval shall remain valid as long as the conditions of paragraph (a) of this section are met.

(e) Quality assurance procedures for sulfur measurement instrumentation. A test shall not be considered a test using an approved test method unless the following quality control procedures are performed separately for each instrument used to make measurements:

(1) Follow all mandatory provisions of ASTM D 6299-02 and construct control charts from the mandatory quality control testing prescribed in paragraph 7.1 of the reference method, following guidelines under A 1.5.1 for individual observation charts and A 1.5.2 for moving range charts. The Director of the Federal Register approved the incorporation by reference of ASTM D 6299-02, Standard Practice for Applying Statistical Quality Assurance Techniques to Evaluate Analytical Measurement System Performance, as prescribed in 5 U.S.C. 552(a) and 1 CFR part 51. Anyone may purchase copies of this standard from the American Society for Testing and Materials, 100 Barr Harbor Dr., West Conshohocken, PA 19428. Anyone may inspect copies at the U.S. EPA, Air and Radiation Docket and Information Center, 1301 Constitution Ave., NW., Room B102, EPA West Building, Washington, DC 20460 or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

(2) Follow paragraph 7.3.1 of ASTM D 6299-02 to check standards using a reference material at least monthly or following any major change to the laboratory equipment or test procedure. Any deviation from the accepted reference value of a check standard greater than 1.44 ppm (for diesel fuel subject to the 15 ppm sulfur standard), 19.36 ppm (for diesel fuel subject to the 500 ppm sulfur standard), or 36.14 ppm (for ECA marine fuel subject to the 1,000 ppm sulfur standard must be investigated.

(3) Samples of tested batches must be retained for 30 days or the period equal to the interval between quality control sample tests, whichever is longer.

(4) Upon discovery of any quality control testing violation of paragraph A 1.5.1.3 or A 1.5.2.1 of ASTM D 6299-02, or any check standard deviation greater than 1.44 ppm (for diesel fuel subject to the 15 ppm sulfur standard), 19.36 ppm (for diesel fuel subject to the 500 ppm sulfur standard), or 36.14 ppm (for ECA marine fuel subject to the 1,000 ppm sulfur standard), conduct an investigation into the cause of such violation or deviation and, after restoring method performance to statistical control, retest retained samples from batches originally tested since the last satisfactory quality control material or check standard testing occasion.

[69 FR 39187, June 29, 2004, as amended at 75 FR 22972, Apr. 30, 2010; 79 FR 23654, Apr. 28, 2014]

§80.586   What are the record retention requirements for test methods approved under this subpart?

Each individual test facility must retain records related to the establishment of accuracy and precision values, all test method documentation, and any quality control testing and analysis under §§80.582, 80.584 and 80.585, for five years.

[69 FR 39188, June 29, 2004]

§§80.587-80.589   [Reserved]

Recordkeeping and Reporting Requirements

§80.590   What are the product transfer document requirements for motor vehicle diesel fuel, NRLM diesel fuel, heating oil, ECA marine fuel, and other distillates?

(a) This paragraph (a) applies on each occasion that any person transfers custody or title to MVNRLM diesel fuel, heating oil, or ECA marine fuel (including distillates used or intended to be used as MVNRLM diesel fuel, heating oil, or ECA marine fuel) except when such fuel is dispensed into motor vehicles or nonroad equipment, locomotives, marine diesel engines or C3 vessels. Note that 40 CFR part 1043 specifies requirements for documenting fuel transfers to certain marine vessels. For all fuel transfers subject to this paragraph (a), the transferor must provide to the transferee documents which include the following information:

(1) The names and addresses of the transferor and transferee.

(2) The volume of diesel fuel or distillate which is being transferred.

(3) The location of the diesel fuel or distillate at the time of the transfer.

(4) The date of the transfer.

(5) For transfers of MVNRLM diesel fuel or ECA marine fuel (beginning June 1, 2014), the sulfur content standard the transferor represents the fuel to meet.

(6) Beginning June 1, 2006, when an entity, from a facility at any point in the distribution system, transfers custody of a distillate or residual fuel designated under §80.598, the following information must also be included:

(i) The facility registration number of the transferor and transferee, for terminals and all parties upstream, under §80.597, if any.

(ii) An accurate and clear statement of the applicable designation and/or classification under §80.598(a) and (b), for example, “500 ppm sulfur NRLM diesel fuel”, or “jet fuel”; and whether the fuel is dyed or undyed, and for heating oil, whether marked or unmarked where applicable.

(7) For transfers of title or custody from one facility to another in the distribution system where diesel fuel or distillates are taxed, dyed or marked, and for any subsequent transfers (except when such fuel is dispensed into motor vehicles or nonroad, locomotive, or marine equipment), an accurate statement on the product transfer document of the applicable fuel uses and classifications, as follows (however, in instances where space is constrained, substantially similar language may be used following approval from EPA):

(i) Undyed 15 ppm sulfur diesel fuel. For the period from June 1, 2006 and beyond, “15 ppm sulfur (maximum) Undyed Ultra-Low Sulfur Diesel Fuel. For use in all diesel vehicles and engines.” From June 1, 2006 through May 31, 2010, the product transfer document must also state whether the diesel fuel is #1D or #2D, or NP diesel.

(ii) Dyed 15 ppm sulfur diesel fuel. From June 1, 2006 and beyond, “15 ppm sulfur (maximum) Dyed Ultra-Low Sulfur Diesel Fuel. For use in all nonroad diesel engines. Not for use in highway vehicles or engines except for tax-exempt use in accordance with section 4082 of the Internal Revenue Code.”

(iii) Undyed 500 ppm sulfur diesel fuel. From June 1, 2006 through September 30, 2010, “500 ppm sulfur (maximum) Undyed Low Sulfur Diesel Fuel. For use in Model Year 2006 and older diesel highway vehicles and engines. Also for use in nonroad, locomotive, and marine diesel engines. Not for use in model year 2007 and newer highway vehicles or engines.”

(iv) Dyed 500 ppm sulfur diesel fuel. (A) For the period of June 1, 2006 through September 30, 2010, “500 ppm sulfur (maximum) Dyed Low Sulfur Nonroad, Locomotive or Marine Diesel Fuel. Not for use in highway vehicles or engines except for use in Model Year 2006 and older highway diesel vehicles or engines for tax-exempt use in accordance with section 4082 of the Internal Revenue Code.”

(B) From June 1, 2010 through September 30, 2014, “500 ppm sulfur (maximum) Dyed Low Sulfur Nonroad Diesel Fuel. For use in model year 2010 and older nonroad diesel engines. May be used in locomotive and marine diesel engines. Not for use in highway vehicles and engines or model year 2011 or later nonroad engines other than locomotive or marine diesel engines. Not for use in the Northeast/Mid-Atlantic Area.”

(C) For dyed locomotive and marine diesel fuel beginning June 1, 2010, “500 ppm sulfur (maximum) Dyed Low Sulfur Locomotive and Marine diesel fuel. Not for use in highway or other nonroad vehicles and engines.”

(v) Dyed High Sulfur NRLM Fuel. From June 1, 2007 through September 30, 2010, “High Sulfur Dyed Nonroad, Locomotive, or Marine Engine Diesel fuel—sulfur content may exceed 500 ppm sulfur. Not for use in highway vehicles or engines. Not for use in any nonroad engines requiring Ultra-Low Sulfur Diesel Fuel. Not for use in the Northeast/Mid-Atlantic Area.”

(vi) Heating oil. For heating oil produced or imported beginning June 1, 2007, “Heating Oil. Not for use in highway vehicles or engines or nonroad, locomotive, or marine engines.”

(vii) ECA marine fuel. For ECA marine fuel produced or imported beginning June 1, 2014, “1,000 ppm sulfur (maximum) ECA marine fuel. For use in Category 3 marine vessels only. Not for use in engines not installed on C3 marine vessels.”

(b) The following may be substituted for the descriptions in paragraph (a) of this section, as appropriate:

(1) “This is high sulfur diesel fuel for use only in Guam, American Samoa, or the Northern Mariana Islands.”;

(2) “This diesel fuel is for export use only.”;

(3) “This diesel fuel is for research, development, or testing purposes only.”; or

(4) “This diesel fuel is for use in diesel highway vehicles or nonroad equipment under an EPA-approved national security exemption only.”

(c) If undyed and/or unmarked distillate fuel is dyed and/or marked subsequent to the issuance of a product transfer document, at the time the distillate fuel is dyed and/or marked, a new product transfer document must be prepared with the language under paragraph (a)(7) of this section applicable to the changed fuel and provided to subsequent transferees.

(d) Except for transfers to truck carriers, retailers or wholesale purchaser-consumers, product codes may be used to convey the information required under this section if such codes are clearly understood by each transferee. “15”, “500”, or “greater than 500” or “>500” must appear clearly on the product transfer document, and may be contained in the product code. If the designation is included in the code: codes used to convey the statement in paragraphs (a)(7)(i) and (a)(7)(ii) of this section must contain the number “15”, codes used to convey the statement in paragraphs (a)(7)(iii) and (a)(7)(iv) of this section must contain the number “500”; codes used to convey the statement in paragraph (a)(7)(v) of this section must contain the statement “greater than 500” or “>500”. If another letter, number, or symbol is being used to convey any of the statements in paragraphs (a)(7)(i), (a)(7)(ii), (a)(7)(iii), (a)(7)(iv), and/or (a)(7)(v) of this section, it must be clearly defined and denoted on the product transfer document.

(e) Beginning June 1, 2014, for ECA marine fuel only (except for transfers to truck carriers, retailers or wholesale purchaser-consumers), product codes may be used to convey the information required under this section if such codes are clearly understood by each transferee. “1000” must appear clearly on the product transfer document, and may be contained in the product code. If the designation is included in the code, codes used to convey the statement in paragraph (a)(7)(vii) of this section must contain the number “1000”. If another letter, number, or symbol is being used to convey the statement in paragraph (a)(7)(vii) of this section, it must be clearly defined and denoted on the product transfer document.

(f) From June 1, 2001 through May 31, 2005, any transfer subject to this section, which is also subject to the early credit provisions of §80.531(b), must comply with all applicable requirements of this section.

(g) From June 1, 2005 through May 31, 2006, any transfer subject to this section, which is also subject to the early credit requirements of §80.531(c), must comply with all applicable requirements of this section.

(h) Mobile refuelers. The provisions of this section shall also apply to a mobile refueler that dispenses fuel from tanker trucks or other vessels into motor vehicles, nonroad diesel engines or nonroad diesel engine equipment. Each visit by the mobile refueler to a location shall be considered a separate occasion for purposes of paragraph (a) of this section. The tank trucks used by mobile refuelers are not subject to the labeling requirements in §§80.570 through 80.574.

(i) Identifications of fuel designations can be limited to a sub-designation that accurately identifies the fuel and do not need to also include the broader designation. For example, NR diesel fuel does not also need to be designated as NRLM or MVNRLM diesel fuel.

(j) Pipeline ticketing. For the case where a pipeline delivers a batch of ULSD to another facility that contains slight amounts of another type of fuel from a preceding or following batch, a clear statement must be included on the PTD denoting this. When this occurs, the receiving facility must handle the fuel appropriately (e.g., redesignate or downgrade any amount of fuel in that batch that does not meet the applicable sulfur standard), in accordance with the provisions of §§80.527 and 80.599.

[69 FR 39188, June 29, 2004, as amended at 70 FR 40896, July 15, 2005; 70 FR 70510, Nov. 22, 2005, as amended at 71 FR 25719, May 1, 2006; 75 FR 22972, Apr. 30, 2010]

§80.591   What are the product transfer document requirements for additives to be used in diesel fuel?

(a) Except as provided in paragraphs (b) and (d) of this section, on each occasion that any person transfers custody or title to a diesel fuel additive that is subject to the provisions of §80.521 to a party in the additive distribution system or in the diesel fuel distribution system for use downstream of the diesel fuel refiner, the transferor must provide to the transferee documents which identify the additive, and—

(1) Identify the name and address of the transferor and transferee; the date of transfer; the location at which the transfer took place; the volume of additive transferred; and

(2) Indicate compliance with the 15 ppm sulfur standard by inclusion of the following statement: “The sulfur content of this diesel fuel additive does not exceed 15 ppm.”

(b) On each occasion that any person transfers custody or title to a diesel fuel additive subject to the requirements of §80.521(b), to a party in the additive distribution system or in the diesel fuel distribution system for use in diesel fuel downstream of the diesel fuel refiner, the transferor must provide to the transferee documents which identify the additive, and do each of the following:

(1) Identify the name and address of the transferor and transferee; the date of transfer; the location at which the transfer took place; the volume of additive transferred.

(2) Indicate the high sulfur potential of the additive by inclusion of the following statement:

This diesel fuel additive may exceed the federal 15 ppm sulfur standard. Improper use of this additive may result in non-complying diesel fuel.

(3) If the additive package contains a static dissipater additive and/or red dye having a sulfur content greater than 15 ppm, a statement must be included which accurately describes the contents of the additive package pursuant to one of the following choices:

(i) “This diesel fuel additive contains a static dissipater additive having a sulfur content greater than 15 ppm.”

(ii) “This diesel fuel additive contains red dye having a sulfur content greater than 15 ppm.”

(iii) “This diesel fuel additive contains a static dissipater additive and red dye having a sulfur content greater than 15 ppm.”

(4) Include the following information:

(i) The additive package's maximum sulfur concentration.

(ii) The maximum recommended concentration in volume percent for use of the additive package in diesel fuel.

(iii) The contribution to the sulfur level of the fuel, in ppm, that would result if the additive package is used at the maximum recommended concentration.

(c) Except for transfers of diesel fuel additives to truck carriers, retailers or wholesale purchaser-consumers, product codes may be used to convey the information required under paragraphs (a) and (b) of this section, if such codes are clearly understood by each transferee. Codes used to convey the statement in paragraph (a)(2) of this section must contain the number “15” and codes used to convey the statement in paragraph (b)(2) of this section must not contain such number.

(d) For those diesel fuel additives which are sold in containers for use by the ultimate consumer of diesel fuel, each transferor must have displayed on the additive container, in a legible and conspicuous manner, either of the following statements, as applicable:

(1) “This diesel fuel additive complies with the federal low sulfur content requirements for use in diesel motor vehicles and nonroad engines.”; or

(2) For those additives sold in containers for use by the ultimate consumer, with a sulfur content in excess of 15 ppm the following statement: “This diesel fuel additive does not comply with federal ultra-low sulfur content requirements for use in model year 2007 and newer diesel motor vehicles or model year 2011 and newer diesel nonroad equipment engines.”

[69 FR 39189, June 29, 2004, as amended at 70 FR 40896, July 15, 2005; 71 FR 25719, May 1, 2006]

§80.592   What records must be kept by entities in the motor vehicle diesel fuel and diesel fuel additive distribution systems?

(a) Records that must be kept by entities in the motor vehicle diesel fuel and diesel fuel additive distribution systems. Beginning June 1, 2006, or for a refiner or importer, the first compliance period in which the refiner or importer is generating early credits under §80.531(b) or (c), whichever is earlier, 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 all the following records:

(1) The applicable product transfer documents required under §§80.590 and 80.591.

(2) For any sampling and testing for sulfur content for a batch of motor vehicle diesel fuel produced or imported and subject to the 15 ppm sulfur standard or any sampling and testing for sulfur content as part of a quality assurance testing program, and any sampling and testing for cetane index, aromatics content, solvent yellow 124 content or dye solvent red 164 content of motor vehicle diesel fuel or motor vehicle diesel fuel additives:

(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 sulfur content (including, where applicable, the test results with and without application of the adjustment factor under §80.580(d)) and for cetane index or aromatics content (as applicable), 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 motor vehicle diesel fuel found not to be in compliance with the sulfur 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.

(b) Additional records to be kept by refiners and importers of motor vehicle diesel fuel subject to hardship standards, small refiner standards and early credit provisions. Beginning June 1, 2006, or for a refiner or importer, the first compliance period in which the refiner or importer is generating early credits under §80.531(b) or (c), any refiner producing motor vehicle diesel fuel subject to the sulfur standard under §80.520(a)(1), for each of its refineries, and any importer importing such motor vehicle diesel fuel, shall keep records that include the following information for each batch of motor vehicle diesel fuel produced or imported:

(1) The batch volume.

(2) The batch number, assigned under the batch numbering procedures under §80.65(d)(3).

(3) The date of production or import.

(4) A record designating the batch as motor vehicle diesel fuel meeting the 500 ppm sulfur standard or as motor vehicle diesel fuel meeting the 15 ppm sulfur standard.

(5) For foreign refiners, the designations and other records required to be kept under §80.620.

(6) In the case of importers, the designations and other records required under §80.620(o).

(7) Information regarding credits, kept separately for each calendar year compliance period, kept separately for each refinery and in the case of importers, kept separately for imports into each CTA, and designated as motor vehicle diesel fuel credits and kept separately from NRLM credits, as follows:

(i) The number of credits in the refiner's or importer's possession at the beginning of the calendar year;

(ii) The number of credits generated;

(iii) The number of credits used;

(iv) If any were obtained from or transferred to other parties, for each such other party, its name, its EPA refiner or importer registration number consistent with §80.593(d), in the case of credits generated by an importer the port and CTA of import of the diesel fuel that generated the credits, and the number obtained from, or transferred to, the other party;

(v) The number in the refiner's or importer's possession that will carry over into the subsequent calendar year compliance period; and

(vi) Commercial documents that establish each transfer of credits from the transferor to the transferee.

(8) The calculations used to determine compliance with the volume requirements of this subpart.

(9) The calculations used to determine the number of credits generated.

(10) A copy of reports submitted to EPA under §80.593.

(c) Additional records importers must keep. Any importer shall keep records that identify and verify the source of each batch of certified diesel fuel program foreign refiner DFR-Diesel and non-certified DFR-Diesel imported and demonstrate compliance with the requirements under §80.620.

(d) Length of time records must be kept. The records required in this section shall be kept for five years from the date they were created, except that records relating to credit transfers shall be kept by the transferor for 5 years from the date the credits were transferred, and shall be kept by the transferee for 5 years from the date the credits were transferred, used or terminated, whichever is later.

(e) Make records available to EPA. On request by EPA, the records required in this section must be made available to the Administrator or the Administrator's representative. For records that are electronically generated or maintained, the equipment and software necessary to read the records shall be made available, or if requested by EPA, electronic records shall be converted to paper documents which shall be provided to the Administrator's authorized representative.

(f) Additional records to be kept by aggregated facilities consisting of a refinery and a truck loading terminal. In addition to the records required by paragraph (a) of this section, such aggregated facilities must also keep the following records beginning June 1, 2006:

(1) The following information for each batch of motor vehicle diesel fuel produced by the refinery and sent over the aggregated facility's truck rack:

(i) The batch volume;

(ii) The batch number, assigned under the batch numbering procedures under §§80.65(d)(3) and 80.502(d)(1);

(iii) The date of receipt or import;

(iv) A record designating the batch as motor vehicle diesel fuel meeting the 500 ppm sulfur standard or as motor vehicle diesel fuel meeting the 15 ppm sulfur standard; and,

(v) A record indicating the volumes that were either taxed, dyed, or dyed and marked.

(2) Volume reports for all motor vehicle diesel fuel from external sources (i.e., from another refiner or importer), as described in §80.601(f)(2), sent over the aggregated facility's truck rack.

[66 FR 5136, Jan. 18, 2001, as amended at 69 FR 39189, June 29, 2004; 70 FR 70510, Nov. 22, 2005; 71 FR 25719, May 1, 2006]

§80.593   What are the reporting requirements for refiners and importers of motor vehicle diesel fuel subject to temporary refiner relief standards?

Beginning with 2006, or the first compliance period during which credits are generated under §80.531(b) or (c), whichever is earlier, any refiner or importer who produces or imports motor vehicle diesel fuel subject to the 500 ppm sulfur standard under §80.520(c), or any refiner or importer who generates, uses, obtains, or transfers credits under §§80.530 through 80.532, and continuing for each year thereafter, must submit to EPA annual reports that contain the information required in this section, and such other information as EPA may require:

(a) Refiners and importers. Refiners and importers must report the following information separately for each refinery or CTA, in the case of importers, subject to a phase-in sulfur standard, small refiner standard or temporary refiner relief sulfur standard, or who generates, uses or transfers credits under §§80.530 through 80.532:

(1) The refiner's name and the EPA refinery registration number.

(2) For all motor vehicle diesel fuel produced for use in the United States during the compliance period:

(i) The total volume of motor vehicle diesel fuel produced;

(ii) The volume, in gallons, that complied with a sulfur content standard of 500 ppm; and

(iii) The volume, in gallons, that complied with the 15 ppm sulfur content standard.

(3) The percentage of the volume of motor vehicle diesel fuel produced during the compliance period that met the 15 ppm sulfur standard and the percentage that met the 500 ppm sulfur standard prior to the application of any volume credits.

(4) The percentage of volume of motor vehicle diesel fuel produced meeting the 15 ppm sulfur standard after the inclusion of any credits.

(5) Information regarding credits, separately for each refinery and for credits or debits related to imported motor diesel fuel, separately by importer and separately by CTA of import as follows:

(i) The CTA of the refiner's refinery or the importer's or the foreign refiner's CTA and port of importation;

(ii) The number of credits at the beginning of the compliance period;

(iii) The number of credits generated;

(iv) The number of credits used;

(v) If any credits were obtained from or transferred to other refineries or import ports, for each other refinery or importer, its name, address (or Port) and CTA, EPA refinery or importer registration number, and the number of credits obtained from or transferred to the other refinery or importer (by import CTA);

(vi) The number of credits, if any, that will carry over to the subsequent compliance period; and

(vii) The number of credits in deficit that must be made up for the following year;

(6) The reporting requirements under §80.620, if applicable.

(7) For each batch of motor vehicle diesel fuel produced or imported during the compliance period:

(i) The batch number assigned using the batch numbering conventions under §80.65(d)(3) and the appropriate designation under §80.598.

(ii) The date the batch was produced; and

(iii) The volume of the batch, in gallons.

(8) When submitting reports under this paragraph (a), any importer shall exclude certified DFR-Diesel.

(b) Additional reporting requirements for importers. Importers of motor vehicle diesel fuel subject to the 500 ppm sulfur standard must report the following information:

(1) The importer's name and EPA registration number.

(2) For each foreign refinery from which motor vehicle diesel fuel is imported that is subject to a sulfur standard under §80.520(c), the importer must report, for each batch of diesel fuel imported, the information required to be reported under §80.620(o).

(c) Report submission. Any annual report required by this section shall be:

(1) Signed and certified as meeting all the applicable requirements of this subpart by the owner or a responsible corporate officer of the refiner or importer; and

(2) Submitted to EPA no later than August 31 for the prior annual compliance period.

[66 FR 5136, Jan. 18, 2001, as amended at 69 FR 39190, June 29, 2004; 70 FR 70510, Nov. 22, 2005; 75 FR 22972, Apr. 30, 2010]

§80.594   What are the pre-compliance reporting requirements for motor vehicle diesel fuel?

(a) Except as provided in paragraph (d) of this section, beginning on June 1, 2003, and on June 1, 2004 and June 1, 2005, all refiners and importers planning to produce or import motor vehicle diesel fuel subject to the provisions of this subpart, shall submit the following information to EPA:

(1) Any changes to the information submitted for the company registration;

(2) Any changes to the information submitted for any refinery or import facility registration;

(3) An estimate of the average daily volumes (in gallons) of each sulfur grade of motor vehicle diesel fuel produced (or imported) at each refinery (or import facility). These volume estimates must be provided both for fuel produced from crude oil, as well as any fuel produced from other sources, and must be provided for the periods of June 1, 2006 through December 31, 2006, January 1, 2007 through December 31, 2007, January 1, 2008 through December 31, 2008, January 1, 2009 through December 31, 2009, and January 1, 2010 through May 31, 2010, for each refinery and import facility;

(4) If expecting to participate in the temporary compliance options provisions and the credit trading program, estimates of the number of credits to be generated and/or used each year the program is applicable;

(5) Information on project schedule by quarter of known or projected completion date by the stage of the project, for example, following the five project phases described in EPA's June 2002 Highway Diesel Progress Review report (EPA420-R-02-016, http://www.epa.gov/otaq/regs/hd2007/420r02016.pdf): Strategic planning, Planning and front-end engineering, Detailed engineering and permitting, Procurement and construction, and Commissioning and startup;

(6) Basic information regarding the selected technology pathway for compliance (e.g., conventional hydrotreating vs. other technologies, revamp vs. grassroots, etc.);

(7) Whether capital commitments have been made or are projected to be made; and

(8) The pre-compliance reports due 2004 and 2005 must provide an update of the progress in each of these areas.

(b) Beginning on June 1, 2003, all approved motor vehicle diesel fuel small refiners shall submit the following additional information to EPA, as applicable:

(1) In the case of a refinery with an approved application under §80.552(a):

(i) A showing that sufficient sources of 15 ppm motor vehicle diesel fuel will likely be available in its marketing area after June 1, 2006 and through 2010;

(ii) If after 2003 the sources of 15 ppm motor vehicle diesel fuel decrease, the pre-compliance reports for 2004 and/or 2005 must identify this change and must include a supplementary showing that the sources of 15 ppm motor vehicle diesel fuel are still sufficient.

(2) In the case of a refinery with an approved application under §80.552(c), a demonstration that by June 1, 2006, 95 percent of its motor vehicle diesel fuel will be at 15 ppm sulfur at a volume meeting the requirements of §80.553(e).

(c) For each refiner and importer approved under §80.540, a demonstration that by June 1, 2006, 95 percent of its motor vehicle diesel fuel will be at 15 ppm sulfur at a volume of meeting the requirements of §80.540(e).

(d) By July 1, 2006, each refiner and importer of motor vehicle diesel fuel shall submit a report to EPA stating that the production or importation of 15 ppm sulfur motor vehicle diesel fuel commenced by June 1, 2006.

(e) The pre-compliance reporting requirements of this section do not apply to refineries subject to the provisions of §80.513.

[66 FR 5136, Jan. 18, 2001, as amended at 69 FR 39190, June 29, 2004; 70 FR 40896, July 15, 2005]

§80.595   How does a small or GPA refiner apply for a motor vehicle diesel fuel volume baseline for the purpose of extending their gasoline sulfur standards?

(a) Any small refiner applying for an extension of the duration of its small refiner gasoline sulfur standards of §80.240, under §§80.552(c) and 80.553, any small refiner applying to produce MVDF under §80.552(a), or any refiner applying for an extension of the duration of the GPA standards under §80.540 must apply for a motor vehicle diesel fuel volume baseline by December 31, 2001. A separate volume baseline must be sought for each refinery for which application of the provisions of §80.553 or §80.540 is sought.

(b) The volume baseline must be sent via certified mail with return receipt or express mail with return receipt to: U.S. EPA-Attn: Diesel Baseline, 1200 Pennsylvania Avenue, NW. (6406J), Washington, DC 20460 (certified mail/return receipt) or Attn: Diesel Baseline, Transportation and Regional Programs Division, 501 3rd Street, NW. (6406J), Washington, DC 20001 (express mail/return receipt).

(c) The motor vehicle diesel fuel volume baseline application must include the following information:

(1) A listing of the names and addresses of all refineries owned by the refiner for which the refiner is applying for a motor vehicle diesel fuel volume baseline.

(2) The average annual volume (in gallons) of motor vehicle diesel fuel produced for U.S. use in 1998 and 1999, for each refinery for which the refiner is applying for such baseline, calculated in accordance with §80.596. The refiner shall follow the procedures, applicable to volume baselines and using motor vehicle diesel fuel instead of gasoline, specified in §§80.91 through 80.93 to establish the volume of motor vehicle diesel fuel that was produced for U.S. use in 1998 and 1999 for purposes of establishing a volume baseline under this section.

(3) A letter signed by the president, chief operating, or chief executive officer of the company, or his/her delegate, stating that the information contained in the volume baseline determination is true to the best of his/her knowledge.

(4) Name, address, phone number, facsimile number, and e-mail address (if available) of a corporate contact person.

(5) The following information for each batch of motor vehicle diesel fuel produced for U.S. use in 1998 and 1999:

(i) Batch number assigned to the batch under procedures such as those in §80.65(d) or §80.101(i), or, if unavailable, such other identifying information as is available; and

(ii) Volume of the batch, in gallons.

(6) For a refinery that was not in operation during part or all of the period 1998 and 1999, the information required under this paragraph (c) for the motor vehicle diesel fuel produced for U.S. use during the most recent calendar year that the refinery was in operation after the refinery was reactivated.

(d) Within 120 days of receipt of an application under this section, EPA will notify the refiner of an approval of the refinery's baseline, or of any deficiencies in the application.

(e) If at any time the baseline submitted in accordance with the requirements of this section is determined to be incorrect, EPA will notify the refiner of the corrected baseline. The corrected baseline shall apply to all applicable compliance calculations under this subpart.

(f)(1) If insufficient information is available for the Administrator to establish a baseline under the provisions of paragraph (c) of this section and §80.596(a), the refiner shall submit additional information sufficient for the Administrator to establish a baseline.

(2) To satisfy the requirements of paragraph (f)(1) of this section, the Administrator may require, and consider, any information pertinent to establish a baseline, including:

(i) Motor vehicle diesel fuel production volumes for other years;

(ii) Crude capacity of the refinery;

(iii) The ratio, or the typical ratio, for other similarly sized or configured refineries, between motor vehicle diesel fuel production and gasoline production.

[66 FR 5136, Jan. 18, 2001, as amended at 70 FR 40896, July 15, 2005]

§80.596   How is a refinery motor vehicle diesel fuel volume baseline calculated?

(a) For purposes of this subpart, a refinery's motor vehicle diesel fuel volume baseline is calculated using the following equation:

eCFR graphic er18ja01.007.gif

View or download PDF

Where:

Vbase = Volume baseline value, in gallons.

Vi = Volume of motor vehicle diesel fuel batch i, in gallons.

n = Total number of batches of motor vehicle diesel fuel produced for U.S. use during January 1, 1998 through December 31, 1999 (or the total number of batches of motor vehicle diesel fuel produced during the most recent calendar year the refinery was in operation after being reactivated pursuant to §80.595(c)(6)); or, for a foreign refinery, the total number of batches of motor vehicle diesel fuel produced and imported into the U.S. during January 1, 1998 through December 31, 1999 (or the total number of batches of motor vehicle diesel fuel produced and imported into the U.S. during the most recent calendar year the refinery was in operation after being reactivated pursuant to §80.595(c)(6)).

i = Individual batch of motor vehicle diesel fuel produced during January 1, 1998 through December 31, 1999 (or individual batch of motor vehicle diesel fuel produced during the most recent calendar year the refinery was in operation after being reactivated pursuant to §80.595(c)(6)); or, for a foreign refinery, individual batch of motor vehicle diesel fuel produced and imported into the U.S. during January 1, 1998 through December 31, 1999 (or individual batch of motor vehicle diesel fuel produced and imported into the U.S. during the most recent calendar year the refinery was in operation after being reactivated pursuant to §80.595(c)(6)).

m = Number of months in the baseline period (24 except in the case of a startup or reactivation).

(b) If insufficient information is available for the Administrator to establish a baseline under paragraph (a) of this section, the baseline may be determined under the provisions of §80.595(f).

[66 FR 5136, Jan. 18, 2001, as amended at 70 FR 40896, July 15, 2005]

§80.597   What are the registration requirements?

The following registration requirements apply under this subpart:

(a) Registration for motor vehicle diesel fuel. Refiners having any refinery that is subject to a sulfur standard under §80.520(a), and importers importing such diesel fuel, must provide EPA the information under §80.76, if such information has not been provided under the provisions of this part. In addition, for each import facility, the same identifying information as required for each refinery under §80.76(c) must be provided.

(b) Registration for NRLM diesel. Refiners and importers that intend to produce or supply NRLM diesel fuel by June 1, 2007, must provide EPA the information under §80.76 no later than December 31, 2005, if such information has not been provided under the provisions of this part. In addition, for each import facility, the same identifying information as required for each refinery under §80.76(c) must be provided.

(c) Registration for ECA marine fuel. Refiners and importers that intend to produce or supply ECA marine fuel beginning June 1, 2014, must provide EPA the information under §80.76 no later than December 31, 2012, if such information has not been previously provided under the provisions of this part. In addition, for each import facility, the same identifying information as required for each refinery under §80.76(c) must be provided.

(d) Entity registration. (1) Except as prescribed in paragraph (d)(6) of this section, each entity as defined in §80.502 that intends to deliver or receive custody of any of the following fuels from June 1, 2006 through May 31, 2010, must register with EPA by December 31, 2005, or six months prior to commencement of producing, importing, or distributing any distillate listed in paragraphs (d)(1)(i) through (d)(1)(iii) of this section:

(i) Fuel designated as 500 ppm sulfur MVNRLM diesel fuel under §80.598 on which taxes have not been assessed pursuant to IRS code (26 CFR part 48).

(ii) Fuel designated as 15 ppm sulfur MVNRLM diesel fuel under §80.598 on which taxes have not been assessed pursuant to IRS code (26 CFR part 48).

(iii) Fuel designated as NRLM diesel fuel under §80.598 that is undyed pursuant to §80.520.

(iv) Fuel designated as California Diesel fuel under §80.598 on which taxes have not been assessed and red dye has not been added (if required) pursuant to IRS code (26 CFR part 48) and that is delivered by pipeline to a terminal outside of the State of California pursuant to the provisions of §80.617(b).

(2) Except as prescribed in paragraph (d)(6) of this section, each entity as defined in §80.502 that intends to deliver or receive custody of any of the following fuels from June 1, 2007, through May 31, 2014, must register with EPA by December 31, 2005, or six months prior to commencement of producing, importing, or distributing any distillate listed in paragraph (d)(1) of this section:

(i) Fuel designated as 500 ppm sulfur MVNRLM diesel fuel under §80.598 on which taxes have not been assessed pursuant to IRS code (26 CFR part 48).

(ii) Fuel designated as NRLM diesel fuel under §80.598 that is undyed pursuant to §80.520.

(iii) Fuel designated as heating oil under §80.598 that is unmarked pursuant to §80.510(d) through (f).

(iv) Fuel designated as LM diesel fuel under §80.598(a)(2)(iii) that is unmarked pursuant to §80.510(e).

(3) Except as prescribed in paragraph (d)(6) of this section, each entity as defined in §80.502 that intends to deliver or receive custody of any of the following fuels beginning June 1, 2014, must register with EPA by December 31, 2012, or prior to commencement of producing, importing, or distributing any distillate or residual fuel listed in this paragraph (d):

(i) Fuel designated as 1,000 ppm sulfur ECA marine fuel under §80.598.

(ii) Fuel designated as 500 ppm LM diesel fuel.

(4) Registration shall be on forms prescribed by the Administrator, and shall include the name, business address, contact name, telephone number, e-mail address, and type of production, importation, or distribution activity or activities engaged in by the entity.

(5) Registration shall include the information required under paragraph (e) of this section for each facility owned or operated by the entity that delivers or receives custody of a fuel described in paragraphs (d)(1) through (3) of this section.

(6) Exceptions for Excluded Liquids. An entity that would otherwise be required to register pursuant to the requirements of paragraphs (d)(1) through (3) of this section is exempted from the registration requirements under this section provided that:

(i) The only diesel fuel or heating oil that the entity delivers or receives on which taxes have not been assessed or which is not received dyed pursuant to IRS code 26 CFR part 48 is an excluded liquid as defined pursuant to IRS code 26 CFR 48.4081-1(b).

(ii) The entity does not transfer the excluded liquid to a facility which delivers or receives diesel fuel other than an excluded liquid on which taxes have not been assessed pursuant to IRS code (26 CFR part 48).

(e) Facility registration. (1) List for each separate facility of an entity required to register under paragraph (d) of this section, the facility name, physical location, contact name, telephone number, e-mail address and type of facility. For facilities that are aggregated under §80.502, provide information regarding the nature and location of each of the components. If aggregation is changed for any subsequent compliance period, the entity must provide notice to EPA prior to the beginning of such compliance period.

(2) If facility records are kept off-site, list the off-site storage facility name, physical location, contact name, and telephone number.

(3) Mobile facilities: (i) A description shall be provided in the registration detailing the types of mobile vessels that will likely be included and the nature of the operations.

(ii) Entities may combine all mobile operations into one facility; or may split the operations by vessel, region, route, waterway, etc. and register separate mobile facilities for each.

(iii) The specific vessels need not be identified in the registration, however information regarding specific vessel contracts shall be maintained by each registered entity for its mobile facilities, pursuant to §80.602(d).

(f) Changes to registration information. Any company or entity shall submit updated registration information to the Administrator within 30 days of any occasion when the registration information previously supplied for an entity, or any of its registered facilities, becomes incomplete or inaccurate.

(g) Issuance of registration numbers. EPA will supply a registration number to each entity and a facility registration number to each of an entity's facilities that is identified, which shall be used in all reports to the Administrator.

[69 FR 39190, June 29, 2004, as amended at 70 FR 70510, Nov. 22, 2005; 71 FR 25720, May 1, 2006; 75 FR 22972, Apr. 30, 2010; 77 FR 75880, Dec. 26, 2012]

§80.598   What are the designation requirements for refiners, importers, and distributors?

(a) Designation requirements for refiners and importers. (1) Any refiner or importer shall accurately and clearly designate all fuel it produces or imports for use in diesel motor vehicles as either motor vehicle diesel fuel meeting the 15 ppm sulfur standard under §80.520(a)(1) or as motor vehicle diesel fuel meeting the 500 ppm sulfur standard under §80.520(c).

(2) Subject to the restrictions in paragraph (a)(3) of this section, beginning June 1, 2006, any refiner or importer shall accurately and clearly designate each batch of diesel fuel or distillate fuel for which they transfer custody to another entity, according to the following categories, including specifying its volume:

(i) Designate the fuel as one of the following fuel types:

(A) Motor vehicle, nonroad, locomotive or marine (MVNRLM) diesel fuel.

(B) Heating oil.

(C) Jet fuel.

(D) Kerosene.

(E) No. 4 fuel.

(F) Distillate fuel for export only.

(G) Exempt distillate fuels such as fuels that are covered by a national security exemption under §80.606, fuels that are used for purposes of research and development pursuant to §80.607, and fuels used in the U.S. Territories pursuant to §80.608 (including additional identifying information).

(H) ECA marine fuel. This designation may be used beginning June 1, 2014, and fuel designated as such is subject to the restrictions in paragraph (a)(3)(xv) of this section.

(ii) From June 1, 2006 through May 31, 2014 any batch designated as MVNRLM diesel fuel must also be designated as one of the following:

(A) Motor vehicle diesel fuel; or

(B) NRLM diesel fuel.

(iii) From June 1, 2010 through May 31, 2012 any batch designated as NRLM must also be designated as one of the following:

(A) NR diesel fuel; or

(B) LM diesel fuel.

(iv) Until June 1, 2014, any batch designated as MVNRLM diesel fuel must also be designated according to one of the following three sulfur level specifications:

(A) 15 ppm if its sulfur content is less than or equal to 15 ppm.

(B) 500 ppm if its sulfur content is less than or equal to 500 ppm.

(C) High Sulfur if its sulfur content is greater than 500 ppm.

(v) From June 1, 2006, through May 31, 2010, any batch designated as motor vehicle diesel fuel must also be designated according to one of the following distillation classifications that most accurately represents the fuel:

(A) #1D.

(B) #2D.

(C) NP diesel (NP).

(3) The following restrictions and clarifications apply:

(i) Prior to June 1, 2006, any batch of MVNRLM not containing visible evidence of red dye under §80.520(b) must be designated as motor vehicle diesel fuel.

(ii) Any distillate fuel containing visible evidence of dye may not be designated as motor vehicle diesel fuel unless it is further designated as tax exempt motor vehicle diesel fuel.

(iii) Any distillate containing the marker required pursuant to the provisions of §80.510(d) through (f) must be designated as heating oil, except that from June 1, 2010 through May 31, 2012 it may also be designated as LM diesel fuel, pursuant to §80.510(e).

(iv) Prior to June 1, 2009 all 15 ppm sulfur MVNRLM diesel fuel must be designated as motor vehicle diesel fuel. A refiner that has been approved as a NRLM diesel fuel small refiner under §80.551(g) and has elected to use the compliance option specified under §80.554(d) may also designate 15 ppm sulfur MVNRLM fuel as NRLM diesel fuel beginning June 1, 2006.

(v) Beginning June 1, 2010 any distillate fuel having a sulfur content greater than 15 ppm may not be designated as motor vehicle diesel fuel.

(vi) Beginning June 1, 2014, any distillate fuel having a sulfur content greater than 15 ppm may not be designated as MVNRLM diesel fuel.

(vii) Any batch of #1D fuel which is suitable for use as MVNRLM and which is also suitable for use as kerosene or jet fuel (i.e., commonly referred to as dual use kerosene) may be designated as MVNRLM, kerosene, or jet fuel (as applicable).

(viii) Beginning June 1, 2007, any distillate fuel with a sulfur content greater than 500 ppm distributed or intended for distribution in the area specified in §80.510(g)(1), may not be designated as MVNRLM diesel fuel.

(ix) From June 1, 2010 through May 31, 2012, any distillate fuel with a sulfur content greater than 15 ppm distributed or intended for distribution in the area specified in §80.510(g)(1), may not be designated as NR diesel fuel.

(x) From June 1, 2012 through May 31, 2014, any distillate fuel with a sulfur content greater than 15 ppm distributed or intended for distribution in the area specified in §80.510(g)(1), may not be designated as NRLM diesel fuel.

(xi) Beginning June 1, 2007, any distillate fuel with a sulfur content greater than 500 ppm distributed or intended for distribution in the area specified in §80.510(g)(2) may not be designated as NRLM diesel fuel unless EPA has first approved a compliance plan for the refiner for segregating the fuel from all other types of NRLM diesel fuel from the refinery gate to the ultimate consumer, as specified under §80.554(a)(4).

(xii) From June 1, 2010 through May 31, 2012, any distillate fuel with a sulfur content greater than 15 ppm distributed or intended for distribution in the area specified in §80.510(g)(2) may not be designated as NR diesel fuel unless EPA has first approved a compliance plan for the refiner for segregating the fuel from all other types of NRLM diesel fuel from the refinery gate to the ultimate consumer, as specified under §80.554(b)(4).

(xiii) From June 1, 2012 through May 31, 2014, any distillate fuel with a sulfur content greater than 15 ppm distributed or intended for distribution in the area specified in §80.510(g)(2) may not be designated as NRLM diesel fuel unless, EPA has first approved a compliance plan for the refiner for segregating the fuel from all other types of NRLM diesel fuel from the refinery gate to the ultimate consumer, as specified under §80.554(b)(4).

(xiv) Beginning June 1, 2014, any distillate fuel with a sulfur content greater than 15 ppm may not be designated as MVNRLM diesel fuel.

(xv) Beginning June 1, 2014, any fuel designated as ECA marine fuel will be subject to all the following restrictions:

(A) Such fuel may not exceed a sulfur level of 1,000 ppm.

(B) Such fuel may only be produced, distributed, sold, and purchased for use in C3 marine vessels.

(b) Designation requirements for fuel distributors. (1) Pursuant to the provisions of paragraphs (b)(2) through (b)(9) of this section, beginning June 1, 2006, any distributor shall accurately and clearly designate each batch of diesel fuel or distillate fuel for which they transfer custody to another facility, including specifying its volume, as specified in this paragraph (b). Distributors must also accurately and clearly classify such diesel fuel and distillate fuel by sulfur content, while it is in their custody between receipt and delivery.

(2) From June 1, 2006 through May 31, 2009, whenever custody of a batch of 15 ppm sulfur motor vehicle diesel fuel is transferred to another facility, the entity transferring custody must accurately and clearly designate the batch as one of the following and specify its volume:

(i) #1D 15 ppm sulfur motor vehicle diesel fuel.

(ii) #2D 15 ppm sulfur motor vehicle diesel fuel.

(iii) Fuel that meets the requirements specified in §80.616 which is transferred by a pipeline facility to a terminal facility outside of the State of California pursuant to §80.617(b) may be designated as California diesel fuel. Such fuel must subsequently be redesignated by the receiving terminal as either #1D or #2D 15 ppm motor vehicle diesel fuel, or segregated for delivery by tank truck to a retail or wholesale purchaser consumer facility inside the State of California pursuant to §80.617(b)(2).

(iv) NP 15 ppm sulfur motor vehicle diesel fuel.

(3) From June 1, 2009 through May 31, 2010, whenever custody of a batch of 15 ppm sulfur MVNRLM diesel fuel is transferred to another facility, the entity transferring custody must accurately and clearly designate the batch as one of the following and specify its volume:

(i) #1D 15 ppm sulfur motor vehicle diesel fuel.

(ii) #2D 15 ppm sulfur motor vehicle diesel fuel.

(iii) 15 ppm sulfur NRLM diesel fuel.

(iv) Fuel that meets the requirements specified in §80.616 that is transferred by a pipeline facility to a terminal facility outside of the State of California pursuant to §80.617(b) may be designated as California diesel fuel. Such fuel must either be redesignated by the receiving terminal as either #1D or #2D 15 ppm motor vehicle diesel fuel as prescribed in paragraph (b)(9)(xvi) of this section, or segregated for delivery by tank truck to a retail or wholesale purchaser consumer facility inside the State of California pursuant to §80.617(b)(2).

(v) NP 15 ppm sulfur motor vehicle diesel fuel.

(4) From June 1, 2006 through May 31, 2010, whenever custody of a batch of undyed, 500 ppm sulfur MVNRLM is transferred to another facility, the entity transferring custody must accurately and clearly designate the batch as one of the following and specify its volume:

(i) #1D 500 ppm sulfur motor vehicle diesel fuel.

(ii) #2D 500 ppm sulfur motor vehicle diesel fuel.

(iii) 500 ppm sulfur NRLM diesel fuel.

(iv) NP 500 ppm sulfur motor vehicle diesel fuel.

(5) From June 1, 2007 through May 31, 2010, whenever custody of a batch of distillate fuel (other than jet fuel, kerosene, No. 4 fuel, or fuel for export) having a sulfur content greater than 500 ppm is transferred to another facility, the entity transferring custody must accurately and clearly designate the batch as one of the following and specify its volume:

(i) High sulfur NRLM diesel fuel (HSNRLM);

(ii) Heating oil; or

(iii) Exempt distillate fuels such as fuels that are covered by a national security exemption under §80.606, fuels that are used for purposes of research and development pursuant to §80.607, and fuels used in the U.S. Territories pursuant to §80.608 (including additional identifying information).

(6) From June 1, 2010 through May 31, 2012, whenever custody of a batch of distillate fuel (other than jet fuel, kerosene, No. 4 fuel, or fuel for export) having a sulfur content greater than 15 ppm is transferred to another facility, the entity transferring custody must accurately and clearly designate the batch as one of the following and specify its volume:

(i) 500 ppm sulfur NR diesel fuel;

(ii) 500 ppm sulfur LM diesel fuel;

(iii) Heating oil; or

(iv) Exempt distillate fuels such as fuels that are covered by a national security exemption under §80.606, fuels that are used for purposes of research and development pursuant to §80.607, and fuels used in the U.S. Territories pursuant to §80.608 (including additional identifying information).

(7) From June 1, 2012 through May 31, 2014, whenever custody of a batch of distillate fuel (other than jet fuel, kerosene, No. 4 fuel, or fuel for export) having a sulfur content greater than 15 ppm is transferred to another facility, the entity transferring custody must accurately and clearly designate the batch as one of the following and specify its volume:

(i) 500 ppm sulfur NRLM diesel fuel.

(ii) Heating oil.

(iii) Exempt distillate fuels such as fuels that are covered by a national security exemption under §80.606, fuels that are used for purposes of research and development pursuant to §80.607, and fuels used in the U.S. Territories pursuant to §80.608 (including additional identifying information).

(8) Beginning June 1, 2014, whenever custody of a batch of distillate or residual fuel (other than jet fuel, kerosene, No. 4 fuel, fuel for export, fuel intended for use outside an ECA, or fuel otherwise allowed to be used under 40 CFR part 1043) having a sulfur content greater than 15 ppm is transferred to another facility, the entity transferring custody must accurately and clearly designate the batch as one of the following and specify its volume:

(i) ECA marine fuel.

(ii) Heating oil.

(iii) Exempt distillate fuels such as fuels that are covered by a national security exemption under §80.606, fuels that are used for purposes of research and development pursuant to §80.607, and fuels used in the U.S. Territories pursuant to §80.608 (including additional identifying information).

(9) The following restrictions and clarifications apply. Subject to the provisions of this paragraph (b)(9) and subject to the dye and marker provisions of §80.520(b) and §80.510(d) through (f), when custody of a batch of distillate fuel is transferred, the designation provided by the entity transferring custody pursuant to paragraphs (b)(1) through (b)(8) of this section may be different from the designation of the fuel when that same entity received custody.

(i) Any 500 ppm sulfur diesel fuel designated under this paragraph (b) and containing visible evidence of red dye may not be designated as motor vehicle diesel fuel.

(ii) Until June 1, 2014, any distillate fuel containing greater than or equal to 0.10 milligrams per liter of marker solvent yellow 124 required under §80.510(d), (e), or (f) must be designated as heating oil except that from June 1, 2010, through November 30, 2012, it may also be designated as LM diesel fuel as specified under §80.510(e).

(iii) Any batch of #1D fuel which is suitable for use as MVNRLM diesel fuel and which is also suitable for use as kerosene or jet fuel (i.e., commonly referred to as dual use kerosene) may be designated as either MVNRLM diesel fuel, kerosene, or jet fuel (as applicable).

(iv) Any MVNRLM diesel fuel with a sulfur content of 500 ppm or less in inventory as of June 1, 2007 may be designated as motor vehicle diesel fuel.

(v) Batches or portions of batches of fuel received designated as 15 ppm sulfur #2D motor vehicle diesel fuel may be re-designated as 500 ppm sulfur motor vehicle diesel fuel, but only in accordance with the limitations of §80.527(c).

(vi) Batches or portions of batches received designated as 500 ppm sulfur NRLM diesel fuel may be re-designated as 500 ppm sulfur motor vehicle diesel fuel by a truck loading terminal only if the terminal maintains a neutral or positive balance at the end of each quarterly compliance period on their motor vehicle diesel fuel volume from June 1, 2006 as calculated in §80.599(b)(4).

(vii) Batches or portions of batches received designated as 500 ppm sulfur NRLM diesel fuel may be re-designated as 500 ppm sulfur motor vehicle diesel fuel by a facility other than a truck loading terminal only if the following restrictions are met:

(A) At the end of each annual compliance period, the facility has a neutral or positive balance on its motor vehicle diesel fuel volume from June 1, 2007 as calculated in §80.599(b)(4); and

(B) At the end of each annual compliance period, the facility's balance for motor vehicle diesel fuel volume, from the beginning of the compliance period must be less than two percent of the total volume of motor vehicle diesel fuel received during the compliance period, as calculated in §80.599(b)(5).

(viii) For facilities in areas other than those specified in §80.510(g)(1) and (2), batches or portions of batches of unmarked distillate received designated as heating oil may be re-designated as NRLM or LM diesel fuel only if all the following restrictions are met:

(A) From June 1, 2007, through May 31, 2010, for any compliance period, the volume of high sulfur NRLM diesel fuel delivered from a facility cannot be greater than the volume received, unless the volume of heating oil delivered from the facility is also greater than the volume it received by an equal or greater proportion, as calculated in §80.599(c)(2).

(B) From June 1, 2010, through May 31, 2014, for any compliance period, the volume of fuel designated as heating oil delivered from a facility cannot be less than the volume of fuel designated as heating oil received, as calculated in §80.599(c)(4).

(ix) For facilities in areas other than those specified in §80.510(g)(1) and (g)(2), from June 1, 2010 through May 31, 2012, batches or portions of batches received designated as 500 ppm LM diesel fuel may be redesignated as 500 ppm NR diesel fuel only if for any compliance period the following restrictions are met:

(A) The volume of fuel designated as 500 ppm sulfur NR diesel fuel delivered from the facility cannot be greater than the volume received as calculated in §80.599(d)(2)(i); or

(B) The volume of fuel designated as 500 ppm sulfur NR diesel fuel delivered from the facility in relation to the volume received is not a greater proportion than the volume of fuel designated as 500 ppm sulfur LM diesel fuel delivered from the facility in relation to the volume received, as calculated in §80.599(d)(2)(ii).

(x) Notwithstanding the provisions of paragraphs (b)(5) and (8) of this section, beginning October 1, 2007:

(A) No distillate fuel with a sulfur content greater than 500 ppm distributed or intended for distribution in the areas specified in §80.510(g)(1) and (g)(2), may be designated as NRLM diesel fuel, including LM diesel fuel except as provided in paragraph (b)(9)(xiii) of this section; and

(B) Distillate fuel with a sulfur content greater than 500 ppm distributed from within the areas specified in §80.510(g)(1) and (g)(2) to areas outside these areas is subject to the provisions of paragraph (b)(5) of this section.

(xi) Notwithstanding the provisions of paragraphs (b)(6) through (b)(8) of this section, beginning October 1, 2010—

(A) No distillate fuel with a sulfur content greater than 15 ppm distributed or intended for distribution in the areas specified in §80.510(g)(1) and (g)(2), may be designated as NR diesel fuel, except as provided in paragraph (b)(9)(xiv) of this section; and

(B) Distillate fuel with a sulfur content greater than 15 ppm distributed from within the areas specified in §80.510(g)(1) and (g)(2) to areas outside these areas is subject to the provisions of paragraphs (b)(6) through (b)(7) of this section.

(xii) Notwithstanding the provisions of paragraphs (b)(7) and (8) of this section, beginning October 1, 2012—

(A) No distillate fuel with a sulfur content greater than 15 ppm distributed or intended for distribution in the areas specified in §80.510(g)(1) and (g)(2), may be designated as NRLM diesel fuel, including LM diesel fuel, except as provided in paragraph (b)(9)(xv) of this section; and

(B) Distillate fuel with a sulfur content greater than 15 ppm distributed from within the areas specified in §80.510(g)(1) and (g)(2) to areas outside these areas is subject to the provisions of paragraphs (b)(7) and (8) of this section.

(xiii) From June 1, 2007 through September 30, 2010, in the area specified in §80.510(g)(2) only segregated batches of distillate fuel received designated as HSNRLM diesel fuel may be distributed designated as HSNRLM diesel fuel and must remain segregated from fuel with any other designations unless otherwise approved by EPA in a refiner compliance plan under §80.554(a)(4).

(xiv) From June 1, 2010 through September 30, 2012, in the area specified in §80.510(g)(2) only segregated batches of distillate fuel received designated as 500 ppm sulfur NR diesel fuel may be distributed designated as 500 ppm sulfur NR diesel fuel and must remain segregated from fuel with any other designations and from any other 500 ppm sulfur NRLM diesel fuel from any other sources, except as approved by EPA in a refiner compliance plan under §80.554(a)(4).

(xv) From June 1, 2012 through September 30, 2014, in the area specified in §80.510(g)(2) only segregated batches of distillate fuel received designated as 500 ppm sulfur NRLM diesel fuel may be distributed designated as 500 ppm sulfur NRLM diesel fuel and must remain segregated from fuel with any other designations and from any other 500 ppm sulfur NRLM diesel fuel from any other sources, except as approved by EPA in a refiner compliance plan under §80.554(a)(4).

(xvi) Fuel designated as California diesel fuel under paragraph (b)(3)(iv) of this section that is received by a terminal facility pursuant to the provisions of §80.617(b)(1) must be redesignated as either #1D or #2D 15 ppm motor vehicle diesel fuel as prescribed in paragraph (b)(9)(xvi) of this section, or segregated for delivery by tank truck to a retail or wholesale purchaser consumer facility inside the State of California pursuant to §80.617(b)(2).

(c) Notwithstanding the provisions of paragraph (b) of this section, an entity is not required to designate heating oil that is delivered from a facility that only receives heating oil which is marked pursuant to §80.510(d) through (f).

(d) Notwithstanding the provisions of paragraph (b)(4) of this section, an entity is not required to designate 500 ppm sulfur MVNRLM diesel fuel that is delivered from a facility that only receives 500 ppm sulfur MVNRLM diesel fuel on which taxes have been paid or into which red dye has been added pursuant to §80.520(b).

(e) Notwithstanding the provisions of paragraph (b)(6) of this section, an entity is not required to designate 500 ppm sulfur LM diesel fuel that is delivered from a facility that only receives 500 ppm sulfur LM diesel fuel which is marked pursuant to §80.510(e).

(f) Any entity that is both a distributor and a refiner or importer must comply with the provisions of paragraph (a) of this section for all distillate fuel produced or imported, and the provisions of paragraph (b) of this section for all distillate fuel for which it acted as distributor but not refiner or importer.

(g) No refiner, importer, or distributor may use the designation provisions of this section to circumvent the standards or requirements of §80.510, 80.511, or 80.520.

[69 FR 39191, June 29, 2004, as amended at 70 FR 70511, Nov. 22, 2005; 71 FR 25720, May 1, 2006; 75 FR 22973, Apr. 30, 2010; 77 FR 61294, Oct. 9, 2012]

§80.599   How do I calculate volume balances for designation purposes?

(a) Quarterly compliance periods. The quarterly compliance periods are shown in the following table:

Beginning date of quarterly compliance period Ending date of
quarterly compliance period
June 1, 2006September 30, 2006.
October 1, 2006December 31, 2006.
January 1, 2007March 31, 2007.
April 1, 2007May 31, 2007.
June 1, 2007September 30, 2007.
October 1, 2007December 31, 2007.
January 1, 2008March 31, 2008.
April 1, 2008June 30, 2008.
July 1, 2008September 30, 2008.
October 1, 2008December 31, 2008.
January 1, 2009March 31, 2009.
April 1, 2009June 30, 2009.
July 1, 2009September 30, 2009.
October 1, 2009December 31, 2009.
January 1, 2010March 31, 2010.
April 1, 2010May 31, 2010.
June 1, 2010September 30, 2010.

(1) The annual compliance periods are shown in the following table:

Beginning date of
annual compliance
period
Ending date of annual compliance period
June 1, 2006May 31, 2007.
June 1, 2007June 30, 2008.
July 1, 2008June 30, 2009.
July 1, 2009May 31, 2010.
June 1, 2010June 30, 2011.
July 1, 2011May 31, 2012.
June 1, 2012June 30, 2013.
July 1, 2013May 31, 2014.

(2) [Reserved]

(b) Volume balance for motor vehicle diesel fuel. (1) A facility's motor vehicle diesel fuel volume balance is calculated as follows:

MVB = MVI−MVO−MVINVCHG

Where:

MVB = the volume balance for motor vehicle diesel fuel for the compliance period.

MVI = the total volume of all batches of fuel designated as motor vehicle diesel fuel received for the compliance period. Any motor vehicle diesel fuel produced by or imported into the facility shall also be included in this volume.

MVO = the total volume of all batches of fuel designated as motor vehicle diesel fuel delivered for the compliance period.

MVINVCHG = the total volume of 15 ppm sulfur and 500 ppm sulfur motor vehicle diesel fuel in inventory at the end of the compliance period minus the total volume of 15 ppm sulfur and 500 ppm sulfur motor vehicle diesel fuel in inventory at the beginning of the compliance period, including accounting for any corrections in inventory due to volume swell or shrinkage, difference in measurement calibration between receiving and delivering meters, and similar matters, where corrections that increase inventory are defined as positive.

(2) Calculate the motor vehicle diesel fuel received, as follows:

MVI = MV15I + MV500I

Where:

MV15I = the total volume of all the batches of fuel designated as 15 ppm sulfur motor vehicle diesel fuel received for the compliance period. Any motor vehicle diesel fuel produced by or imported into the facility shall also be included in this volume. Any untaxed and undyed California diesel fuel received by a terminal pursuant to §80.617 (b)(1) shall be included in this volume.

MV500I = the total volume of all batches of fuel designated as 500 ppm sulfur motor vehicle diesel fuel received for the compliance period. Any motor vehicle diesel fuel produced by or imported into the facility shall also be included in this volume.

(3) Calculate the motor vehicle diesel fuel delivered, as follows:

MVO = MV15O + MV500O

Where:

MV15O = the total volume of all batches of fuel designated as 15 ppm sulfur motor vehicle diesel fuel and delivered during the compliance period.

MV500O = the total volume of all batches of fuel designated as 500 ppm sulfur motor vehicle diesel fuel and delivered during the compliance period.

(4) The neutral or positive volume balance required for purposes of compliance with §80.598(b)(9)(vi) and (b)(9)(vii)(A) means that the net balance of motor vehicle diesel fuel in inventory as of the end of the last day of the compliance period (MVNBE) must be greater than or equal to zero. MVNBE is defined by the following equation:

MVNBE = MV15BINV + MV500BINV + ΣMVB

Where:

MV15BINV = the total volume of fuel designated as 15 ppm sulfur motor vehicle diesel fuel in inventory at the beginning of the program on June 1, 2006.

MV500BINV = the total volume of fuel designated as 500 ppm sulfur motor vehicle diesel fuel in inventory at the beginning of the program on June 1, 2006. Any #2D 500 ppm sulfur MVNRLM in inventory at the beginning of the program on June 1, 2006 may be designated as motor vehicle diesel fuel.

ΣMVB = the sum of the balances for motor vehicle diesel fuel for the current compliance period and previous compliance periods.

(5) The volume balance required for purposes of compliance with §80.598(b)(9)(vii)(B) means:

−MVB ≤0.02 × MVI

(6) Calculations in paragraphs (b)(4) and (b)(5) of this section may be combined for all facilities wholly owned by an entity.

(7) For purposes of calculations in paragraphs (b)(1) through (b)(5) of this section, for batches of fuel received from facilities without an EPA facility ID#, any batches of fuel received on which taxes have been paid pursuant to IRS code (26 CFR part 48) shall be deemed to be MV15I or MV500I as appropriate for purposes of this paragraph.

(c) Volume balance for high sulfur NRLM diesel fuel and heating oil. (1) A facility's high sulfur NRLM balance is calculated as follows:

HSNRLMB = HSNRLMII − HSNRLMO − HSNRLMINVCHG

Where:

HSNRLMB = the balance for high sulfur NRLM diesel fuel for the compliance period.

HSNRLMI = the total volume of all batches of fuel designated as high sulfur NRLM received diesel fuel for the compliance period. Any high sulfur NRLM produced by or imported into the facility shall also be included in this volume.

HSNRLMO = the total volume of all batches of fuel designated as high sulfur NRLM diesel fuel delivered for the compliance period.

HSNRLMINVCHG = the volume of high sulfur NRLM diesel fuel in inventory at the end of the compliance period minus the volume of high sulfur NRLM diesel fuel in inventory at the beginning of the compliance period, including accounting for any corrections in inventory due to volume swell or shrinkage, difference in measurement calibration between receiving and delivering meters, and similar matters, where corrections that increase inventory are defined as positive.

(2) The volume balance required for purposes of compliance with §80.598(b)(9)(viii)(A) means one of the following:

(i) HSNRLMB ≥0

(ii) (HSNRLMO + HSNRLMINVCHG) / HSNRLMI ≤(HOO + HOINVCHG) / HOI

(3) A facility's heating oil volume balance is calculated as follows:

HOB = HOI − HOO − HOINVCHG

Where:

HOB = the balance for heating oil for the compliance period.

HOI = the total volume of all batches of fuel designated as heating oil received for the compliance period. Any heating oil produced by or imported into the facility shall also be included in this volume.

HOO = the total volume of all batches of fuel designated as heating oil delivered to all downstream entities for the compliance period.

HOINVCHG = the volume of heating oil in inventory at the end of the compliance period minus the volume of heating oil in inventory at the beginning of the compliance period, including accounting for any corrections in inventory due to volume swell or shrinkage, difference in measurement calibration between receiving and delivering meters, and similar matters, where corrections that increase inventory are defined as positive.

(4) The volume balance required for purposes of compliance with §80.598(b)(9)(viii)(B) means:

HOB ≤0

(5) Calculations in paragraphs (c)(3) and (c)(4) of this section may be combined for all facilities wholly owned by an entity.

(6) For purposes of calculations in paragraphs (c)(1) through (c)(4) of this section, for batches of fuel received from facilities without an EPA facility ID#, any batches of fuel received marked pursuant to §80.510(d) or (f) shall be deemed to be HOI, any batches of fuel received marked pursuant to §80.510(e) shall be deemed to be HOI or LM500I, any diesel fuel with less than or equal to 500 ppm sulfur that is dyed pursuant to §80.520(b) and not marked pursuant to §80.510(d) or (f) shall be deemed to be NRLM diesel fuel, and any diesel fuel with less than or equal to 500 ppm sulfur which is dyed pursuant to §80.520(b) and not marked pursuant to §80.510(e) shall be deemed to be NR diesel fuel.

(d) Volume balance for NR diesel fuel. (1) A facility's 500 ppm nonroad diesel fuel balance is calculated as follows:

NR500B = NR500I − NR500O − NR500INVCHG

Where:

NR500B = the balance for 500 ppm sulfur NR diesel fuel for the compliance period.

NR500I = the total volume of all batches of fuel designated as 500 ppm sulfur NR diesel fuel received for the compliance period. Any 500 ppm sulfur NR diesel fuel produced by or imported into the facility shall also be included in this volume.

NR500O = the total volume of all batches of fuel designated as 500 ppm sulfur NR diesel fuel delivered for the compliance period.

NR500INVCHG = the volume of 500 ppm sulfur NR diesel fuel in inventory at the end of the compliance period minus the volume of 500 ppm sulfur NR diesel fuel in inventory at the beginning of the compliance period, and accounting for any corrections in inventory due to volume swell or shrinkage, difference in measurement calibration between receiving and delivering meters, and similar matters, where corrections that increase inventory are defined as positive.

(2) The volume balance required for purposes of compliance with §80.598(b)(9)(ix) means one of the following:

(i) NR500B ≥0

(ii) (NR500O + NR500INVCHG) / NR500I ≤(LM500O + LM500INVCHG) / LM500I.

Where:

LM500I = the total volume of all batches of fuel designated as 500 ppm sulfur LM diesel fuel received for the compliance period. Any 500 ppm sulfur LM diesel fuel produced by or imported into the facility shall also be included in this volume.

LM500O = the total volume of all batches of fuel designated as 500 ppm sulfur LM diesel fuel delivered for the compliance period.

LM500INVCHG = the volume of 500 ppm sulfur LM diesel fuel in inventory at the end of the compliance period minus the volume of 500 ppm sulfur LM diesel fuel in inventory at the beginning of the compliance period, and accounting for any corrections in inventory due to volume swell or shrinkage, difference in measurement calibration between receiving and delivering meters, and similar matters, where corrections that increase inventory are defined as positive.

(e) Anti-downgrading for motor vehicle diesel fuel. (1) A facility must satisfy the provisions in either paragraphs (e)(2), (e)(3), (e)(4), or (e)(5) of this section to comply with the anti-downgrading limitation of paragraph §80.527(c)(1), for the annual compliance periods defined in §80.527(c)(3).

(2) The volume of #2D 15 ppm sulfur motor vehicle delivered must meet the following requirement:

(#2MV15O + #2MV15INVCHG) ≥0.8 * #2MV15I

Where:

#2MV15O = the total volume of fuel delivered during the compliance period that is designated as #2D 15 ppm sulfur motor vehicle diesel fuel.

#2MV15INVCHG = the total volume of diesel fuel designated as #2D 15 ppm sulfur motor vehicle diesel fuel in inventory at the end of the compliance period minus the total volume of #2D 15 ppm sulfur motor vehicle diesel fuel in inventory at the beginning of the compliance period, and accounting for any corrections in inventory due to volume swell or shrinkage, difference in measurement calibration between receiving and delivering meters, and similar matters, where corrections that increase inventory are defined as positive.

#2MV15I = the total volume of fuel received during the compliance period that is designated as #2D 15 ppm sulfur motor vehicle diesel fuel. Any untaxed and undyed California diesel fuel received by a terminal pursuant to §80.617(b)(1) shall be included in this volume.

(3) The volume of #2D 500 ppm sulfur motor vehicle diesel fuel delivered must meet the following requirement:

#2MV500O ≤#2MV500I − #2MV500INVCHG + 0.2 * #2MV15I

Where:

#2MV500O = the total volume of fuel delivered during the compliance period that is designated as #2D 500 ppm sulfur motor vehicle diesel fuel.

#2MV500I = the total volume of fuel received during the compliance period that is designated as #2D 500 ppm sulfur motor vehicle diesel fuel.

#2MV500INVCHG = the total volume of diesel fuel designated as #2D 500 ppm sulfur motor vehicle diesel fuel in inventory at the end of the compliance period minus the total volume of #2D 500 ppm sulfur motor vehicle diesel fuel in inventory at the beginning of the compliance period, and accounting for any corrections in inventory due to volume swell or shrinkage, difference in measurement calibration between receiving and delivering meters, and similar matters, where corrections that increase inventory are defined as positive.

(4) The following calculation may be used to account for wintertime blending of kerosene and the blending of non-petroleum diesel:

#2MV500O≤#2MV500I + #2MV500P − #2MV500INVCHG + 0.2 * (#1MV15I + #2MV15I + NPMV15I)

Where:

#1MV15I = the total volume of fuel received during the compliance period that is designated as #1D 15 ppm sulfur motor vehicle diesel fuel. Any motor vehicle diesel fuel produced by or imported into the facility shall not be included in this volume.

NPMV15I = the total volume of fuel received during the compliance period that is designated as NP15 ppm sulfur motor vehicle diesel fuel. Any motor vehicle diesel fuel produced by or imported into the facility shall not be included in this volume.

#1MV15P = the total volume of fuel produced by or imported into the facility during the compliance period that was designated as #1D 15 ppm sulfur motor vehicle diesel fuel when it was delivered.

(5) The following calculation may be used to account for wintertime blending of kerosene, the blending of non-petroleum diesel, and/or changes in the facility's volume balance of motor vehicle diesel fuel resulting from a temporary shift of 500 ppm sulfur NRLM diesel fuel to 500 ppm sulfur motor vehicle diesel fuel during the compliance period:

#2MV500O <#2MV500I + #2MV500P − #2MV500INVCHG + 0.2 * #2MV15I + #1MV15B + #2NRLM500S + NPB

Where:

#1MV15B = the total volume of fuel received during the compliance period that is designated as #1D 15 ppm sulfur motor vehicle diesel fuel and that the facility can demonstrate they blended into #2D 500 ppm sulfur motor vehicle diesel fuel. Any motor vehicle diesel fuel produced by or imported into the facility shall not be included in this volume.

#2MV500P = the total volume of fuel produced by or imported into the facility during the compliance period that was designated as #2MV 500 ppm sulfur motor vehicle diesel fuel when it was delivered.

#2NRLM500S = the total volume of #2D 500 ppm sulfur NRLM diesel fuel that the facility can demonstrate they redesignated as #2D 500 ppm sulfur motor vehicle diesel fuel during the compliance period.

NPB = the total volume of fuel received during the compliance period that is designated as NP15 ppm sulfur motor vehicle diesel fuel, and/or NP500 ppm sulfur motor vehicle diesel fuel which the facility can demonstrate they blended into #2D 500 ppm sulfur motor vehicle diesel fuel.

(f) Inventory adjustments. Adjustments to inventory under this section must be based on normal business practices for the industry, appropriate physical plant operations and use of good engineering judgments.

(g) Unique circumstances. EPA may, at its discretion, grant a fuel distributor's application to modify its inventory of motor vehicle diesel fuel, NRLM diesel fuel, or heating oil for a given compliance period. EPA may grant an application to address unique circumstances, where appropriate, such as the start up of a new pipeline or pipeline segment.

(h) Additional requirements for aggregated facilities consisting of a refinery and a truck loading terminal. In addition to the volume balance requirements required by paragraphs (a) through (g) of this section, aggregated facilities consisting of a refinery and a truck loading terminal are responsible for balance calculations on the volume difference between the total volume of diesel fuel sold over the truck loading terminal rack and the production volume from the batch reports. Mathematically, the difference will be the volume of fuel received from external sources and passed through to another facility.

[69 FR 39194, June 29, 2004, as amended at 70 FR 40896, July 15, 2005; 70 FR 70511, Nov. 22, 2005; 71 FR 25720, May 1, 2006; 75 FR 22974, Apr. 30, 2010]

§80.600   What records must be kept for purposes of the designate and track provisions?

(a) In addition to the requirements of §80.592 and §80.602, the following recordkeeping requirements shall apply to refiners and importers:

(1) Any refiner or importer shall maintain the records specified in paragraphs (a)(6) through (a)(10) of this section for each batch of distillate fuel that it transfers custody of and designates during the time period from June 1, 2006 through May 31, 2010, with the following categories:

(i) #1D 15 ppm sulfur motor vehicle diesel fuel;

(ii) #2D 15 ppm sulfur motor vehicle diesel fuel;

(iii) 15 ppm sulfur NRLM diesel fuel;

(iv) #1D 500 ppm sulfur motor vehicle diesel fuel;

(v) #2D 500 ppm sulfur motor vehicle diesel fuel;

(vi) 500 ppm sulfur NRLM diesel fuel;

(vii) NP 15 ppm sulfur motor vehicle diesel fuel;

(viii) NP 500 ppm sulfur motor vehicle diesel fuel; or,

(ix) Exempt distillate fuels such as fuels that are covered by a national security exemption under §80.606, fuels that are used for purposes of research and development pursuant to §80.607, and fuels used in the U.S. Territories pursuant to §80.608 (including additional identifying information).

(2) Any refiner or importer shall maintain the records specified in paragraphs (a)(6) through (a)(10) of this section for each batch of distillate fuel that it transfers custody of and designates during the time period from June 1, 2007 through May 31, 2010 with the following categories:

(i) High sulfur NRLM diesel fuel; or

(ii) Heating oil.

(3) Any refiner or importer shall maintain the records specified in paragraphs (a)(6) through (a)(10) of this section for each batch of distillate fuel that it transfers custody of and designates during the time period from June 1, 2010 through May 31, 2012 with the following categories:

(i) 500 ppm sulfur NR diesel fuel;

(ii) 500 ppm sulfur LM diesel fuel;

(iii) Heating oil; or

(iv) Exempt distillate fuels such as fuels that are covered by a national security exemption under §80.606, fuels that are used for purposes of research and development pursuant to §80.607, and fuels used in the U.S. Territories pursuant to §80.608 (including additional identifying information).

(4) Any refiner or importer shall maintain the records specified in paragraphs (a)(6) through (a)(10) of this section for each batch of distillate fuel that it transfers custody of and designates during the time period from June 1, 2012 through May 31, 2014 with the following categories:

(i) 500 ppm sulfur NRLM diesel fuel;

(ii) Heating oil; or

(iii) Exempt distillate fuels such as fuels that are covered by a national security exemption under §80.606, fuels that are used for purposes of research and development pursuant to §80.607, and fuels used in the U.S. Territories pursuant to §80.608 (including additional identifying information).

(5) Any refiner or importer shall maintain the records specified in paragraphs (a)(6) through (10) of this section for each batch of distillate or residual fuel that it transfers custody of and designates from June 1, 2014, and later as any of the following categories:

(i) Heating oil.

(ii) ECA marine fuel.

(6) The records for each batch with designations identified in paragraphs (a)(1) through (a)(5) of this section must clearly and accurately identify the batch number (including an indication as to whether the batch was received into the facility, produced by the facility, imported into the facility, or delivered from the facility), date and time of day (if multiple batches are delivered per day) that custody was transferred, the designation, the volume in gallons of the batch, and the name and the EPA entity and facility registration number of the facility to whom such batch was transferred.

(7) Any refiner or importer shall, for each of its facilities, maintain records that clearly and accurately identify the total volume in gallons of designated fuel identified in paragraphs (a)(1) through (a)(5) of this section transferred over each compliance period. The records shall be maintained separately for each fuel designated in paragraphs (a)(1) through (a)(5) of this section, and for each EPA entity and facility registration number to whom custody of the fuel was transferred.

(8) Notwithstanding the provisions of paragraphs (a)(6) and (a)(7) of this section, records of batches delivered of 500 ppm sulfur motor vehicle diesel fuel on which taxes have been paid per Section 4082 of the Internal Revenue Code (26 U.S.C. 4082) and of 500 ppm sulfur NRLM diesel fuel into which dye has been added per Section 4082 of the Internal Revenue Code (26 U.S.C. 4082), and of 500 ppm sulfur LM diesel fuel which has been properly marked pursuant to §80.510(e) are not required to be maintained separately for each entity and facility to which the fuel was delivered.

(9) Notwithstanding the provisions of paragraphs (a)(6) and (a)(7) of this section, records of heating oil batches delivered that have been properly marked pursuant to §80.510(d) through (f) and records of LM diesel fuel batches delivered that have been properly marked pursuant to §80.510(e) are not required to be maintained separately for each entity and facility to which the fuel was delivered.

(10) Any refiner or importer shall maintain copies of all product transfer documents required under §80.590. If all information required in paragraph (a)(6) of this section is on the product transfer document for a batch, then the provisions of this paragraph (a)(10) shall satisfy the requirements of paragraph (a)(6) of this section for that batch.

(11) Any refiner or importer shall maintain records related to annual compliance calculations performed under §80.599 and to information required to be reported to the Administrator under §80.601.

(12) Records must be maintained that demonstrate compliance with a refiner's compliance plan required under §80.554, for distillate fuel designated as high sulfur NRLM diesel fuel and delivered from June 1, 2007 through May 31, 2010, for distillate fuel designated as 500 ppm sulfur NR diesel fuel and delivered from June 1, 2010, through May 31, 2012, and for distillate fuel designated as 500 ppm sulfur NRLM diesel fuel and delivered from June 1, 2012, through May 31, 2014, in the areas specified in §80.510(g)(2).

(13) Refiners and importers who also receive fuel from another facility must also comply with the requirements of paragraph (b) of this section separately for those volumes.

(b) In addition to the requirements of §80.592 and §80.602, the following recordkeeping requirements shall apply to distributors:

(1) Any distributor shall maintain the records specified in paragraphs (b)(2) through (b)(10) of this section for each batch of distillate fuel with the following designations for which custody is received or delivered as well as any batches produced. Records shall be kept separately for each of its facilities.

(i) For each facility that receives or distributes #2D 15 ppm sulfur motor vehicle diesel fuel or #2D 500 ppm sulfur motor vehicle diesel fuel, records for each batch of diesel fuel with the following designations for which custody is received or delivered during the time period from June 1, 2006 through May 31, 2007:

(A) #1D 15 ppm sulfur motor vehicle diesel fuel;

(B) #2D 15 ppm sulfur motor vehicle diesel fuel;

(C) #1D 500 ppm sulfur motor vehicle diesel fuel;

(D) #2D 500 ppm sulfur motor vehicle diesel fuel;

(E) California diesel fuel as defined in §80.616 which is transferred out of the State of California pursuant to the provisions of §80.617(b);

(F) NP 15 ppm sulfur motor vehicle diesel fuel;

(G) NP 500 ppm sulfur motor vehicle diesel fuel; or

(H) Exempt distillate fuels such as fuels that are covered by a national security exemption under §80.606, fuels that are used for purposes of research and development pursuant to §80.607, and fuels used in the U.S. Territories pursuant to §80.608 (including additional identifying information).

(ii) For each facility, records for each batch of diesel fuel with the following designations for which custody is received or delivered as well as any batches produced during the time period from June 1, 2007 through May 31, 2010:

(A) #1D 15 ppm sulfur motor vehicle diesel fuel;

(B) #2D 15 ppm sulfur motor vehicle diesel fuel;

(C) #1D 500 ppm sulfur motor vehicle diesel fuel;

(D) #2D 500 ppm sulfur motor vehicle diesel fuel;

(E) 500 ppm sulfur NRLM diesel fuel;

(F) 15 ppm sulfur NRLM diesel fuel;

(G) High sulfur NRLM diesel fuel;

(H) Heating oil;

(I) California diesel fuel as defined in §80.616 which is transferred out of the State of California pursuant to the provisions of §80.617(b);

(J) NP 15 ppm sulfur motor vehicle diesel fuel;

(K) NP 500 ppm sulfur motor vehicle diesel fuel; or

(L) Exempt distillate fuels such as fuels that are covered by a national security exemption under §80.606, fuels that are used for purposes of research and development pursuant to §80.607, and fuels used in the U.S. Territories pursuant to §80.608 (including additional identifying information).

(iii) For each facility that receives unmarked fuel designated as NR diesel fuel, LM diesel fuel or heating oil, records for each batch of diesel fuel with the following designations for which custody is received or delivered as well as any batches produced during the time period from June 1, 2010 through May 31, 2012:

(A) 500 ppm sulfur NR diesel fuel;

(B) 500 ppm sulfur LM diesel fuel;

(C) Heating oil; or

(D) Exempt distillate fuels such as fuels that are covered by a national security exemption under §80.606, fuels that are used for purposes of research and development pursuant to §80.607, and fuels used in the U.S. Territories pursuant to §80.608 (including additional identifying information).

(iv) For each facility that receives unmarked fuel designated as heating oil, records for each batch of diesel fuel with the following designations for which custody is received or delivered as well as any batches produced during the time period from June 1, 2012 through May 31, 2014:

(A) 500 ppm sulfur NRLM diesel fuel;

(B) Heating oil; or

(C) Exempt distillate fuels such as fuels that are covered by a national security exemption under §80.606, fuels that are used for purposes of research and development pursuant to §80.607, and fuels used in the U.S. Territories pursuant to §80.608 (including additional identifying information).

(v) For each facility that receives fuel designated as heating oil, records for each batch of distillate or residual fuel with any of the following designations for which custody is received or delivered as well as any batches produced from June 1, 2014, and beyond:

(A) 1,000 ppm sulfur ECA marine fuel.

(B) Heating oil.

(C) Exempt distillate fuels such as fuels that are covered by a national security exemption under §80.606, fuels that are used for purposes of research and development pursuant to §80.607, and fuels used in the U.S. Territories pursuant to §80.608 (including additional identifying information).

(vi) From June 1, 2007 through May 31, 2010, for those facilities in the areas specified in §80.510(g)(2) that receive unmarked fuel designated as high sulfur NRLM diesel fuel:

(A) High sulfur NRLM diesel fuel;

(B) Heating oil; or

(C) Exempt distillate fuels such as fuels that are covered by a national security exemption under §80.606, fuels that are used for purposes of research and development pursuant to §80.607, and fuels used in the U.S. Territories pursuant to §80.608 (including additional identifying information).

(vii) From June 1, 2010 through May 31, 2012, for those facilities in the areas specified in §80.510(g)(2) that receive unmarked fuel designated as 500 ppm sulfur NR diesel fuel, 500 ppm sulfur LM diesel fuel, or heating oil:

(A) 500 ppm sulfur NR diesel fuel;

(B) 500 ppm sulfur LM diesel fuel;

(C) Heating oil; or

(D) Exempt distillate fuels such as fuels that are covered by a national security exemption under §80.606, fuels that are used for purposes of research and development pursuant to §80.607, and fuels used in the U.S. Territories pursuant to §80.608 (including additional identifying information).

(viii) From June 1, 2012 through May 31, 2014, for those facilities in the areas specified in §80.510(g)(2) that receive unmarked fuel designated as 500 ppm sulfur NRLM diesel fuel or heating oil.

(A) 500 ppm sulfur NRLM diesel fuel;

(B) Heating oil; or

(C) Exempt distillate fuels such as fuels that are covered by a national security exemption under §80.606, fuels that are used for purposes of research and development pursuant to §80.607, and fuels used in the U.S. Territories pursuant to §80.608 (including additional identifying information).

(2) Records that for each batch clearly and accurately identify the batch number (including an indication as to whether the batch was received into the facility, produced by the facility, imported into the facility, or delivered from the facility), date and time of day (if multiple batches are delivered per day) that custody was transferred, the designation, the volume in gallons of each batch of each fuel, and the name and the EPA entity and facility registration number of the facility to whom or from whom such batch was transferred.

(3) Records that clearly and accurately identify the total volume in gallons of each designated fuel identified under paragraph (b)(1) of this section transferred over each of the compliance periods, and over the periods from June 1, 2006 to the end of each compliance period. The records shall be maintained separately for each fuel designated under paragraph (b)(1) of this section, and for each EPA entity and facility registration number from whom the fuel was received or to whom it was delivered. For batches of fuel received from facilities without an EPA facility registration number:

(i) Any batches of fuel received marked pursuant to §80.510(d) or (f) shall be deemed to be designated as heating oil.

(ii) Any batches of fuel received marked pursuant to §80.510(e) shall be deemed to be designated as heating oil or LM diesel fuel.

(iii) Any batches of fuel received on which taxes have been paid pursuant to Section 4082 of the Internal Revenue Code (26 CFR 48.4082) shall be deemed to be designated as motor vehicle diesel fuel.

(iv) Any 500 ppm sulfur diesel fuel dyed pursuant to §80.520(b) and not marked pursuant to §80.510(d) or (f) shall be deemed to be designated as NRLM diesel fuel.

(v) Any diesel fuel with less than or equal to 500 ppm sulfur which is dyed pursuant to §80.520(b) and not marked pursuant to §80.510(e) shall be deemed to be NR diesel fuel.

(vi) Beginning June 1, 2014, any batches of fuel with greater than 15 ppm sulfur, but less than or equal to 1,000 ppm sulfur, and not designated as heating oil shall be deemed to be 1,000 ppm ECA marine fuel.

(4) Notwithstanding the provisions of paragraphs (b)(2) and (b)(3) of this section, for batches of 500 ppm sulfur motor vehicle diesel fuel delivered on which taxes have been paid per Section 4082 of the Internal Revenue Code (26 U.S.C. 4082) and 500 ppm sulfur NRLM diesel fuel into which red dye has been added per Section 4082 of the Internal Revenue Code (26 U.S.C. 4082), records are not required to be maintained separately for each entity or facility to whom fuel was delivered.

(5) Notwithstanding the provisions of paragraphs (b)(2) and (b)(3) of this section, for batches of heating oil delivered that are marked pursuant to §80.510(d) through (f), records do not need to identify the EPA entity or facility registration number to which fuel was delivered.

(6) Notwithstanding the provisions of paragraphs (b)(2) and (b)(3) of this section, for batches of LM diesel fuel delivered that are marked pursuant to §80.510(e), records do not need to identify the EPA entity or facility registration number to which fuel was delivered.

(7) Records that clearly and accurately reflect the beginning and ending inventory volume for each of the fuels for which records must be kept under paragraph (b)(1) of this section. Such records shall be maintained separately by each entity and facility consistent with the compliance periods defined in §§80.598 and 80.599.

(8) (i) If adjustments are made to inventory, the records must include detailed information related to the amount, type of, and reason for such adjustment.

(ii) If adjustments are made because of measurement error or variation, the records must include the adjustment made, the meter or gauge or other reading(s), and the name of the person who took such reading(s) and or applied the adjustment.

(9) For distributors that are required to keep records under paragraphs (b)(1) through (b)(8) of this section for truck loading terminals, records related to quarterly or annual compliance calculations, as applicable, performed under §80.599 and to information required to be reported to the Administrator under §80.601.

(10) For distributors that are required to keep records under paragraphs (b)(1) through (b)(8) of this section for facilities other than truck loading terminals, records related to annual compliance calculations performed under §80.599 and to information required to be reported to the Administrator under §80.601.

(c) Notwithstanding the provisions of paragraph (b) of this section, records of heating oil received are not required to be maintained for facilities that do not receive any heating oil which is unmarked pursuant to §80.510(d) through (f), or LM diesel fuel which is unmarked pursuant to §80.510(e).

(d) Notwithstanding the provisions of paragraph (b) of this section, records of 500 ppm sulfur MVNRLM diesel fuel received are not required to be maintained for facilities that do not receive any motor vehicle diesel fuel for which taxes have not already been paid pursuant to Section 4082 of the Internal Revenue Code (26 U.S.C. 4082) or NRLM diesel fuel which is undyed pursuant to §80.520(b).

(e) The provisions of paragraphs (b)(1)(iii) and (iv) of this section do not apply to facilities located in the areas specified in §80.510(g)(1) and (g)(2) unless they deliver marked heating oil or LM diesel fuel to areas outside the areas specified in §80.510(g)(1) and (g)(2).

(f) Ultimate consumers that receive any batch of high sulfur NRLM diesel fuel beginning June 1, 2007 in areas listed in §80.510(g)(2) must maintain records of each batch of fuel received for use in NRLM equipment pursuant to the compliance plan provisions of §80.554, unless otherwise allowed by EPA.

(g) Ultimate consumers that receive any batch of 500 ppm sulfur NR diesel fuel beginning June 1, 2010 or NRLM diesel fuel beginning June 1, 2012 in the areas listed in §80.510(g)(2) must maintain records of each batch of fuel received for use in NR or NRLM equipment, as appropriate, pursuant to the compliance plan provisions of §80.554, unless otherwise allowed by EPA.

(h) For purposes of this section, each portion of a shipment of designated distillate fuel under this section that is differently designated from any other portion, even if shipped as fungible product having the same sulfur content, shall be a separate batch.

(i) Additional records that must be kept by mobile facilities. Any registered mobile facility must keep records of all contracts from any contracted components (e.g., tank truck, barge, marine tanker, rail car, etc.) in each of its registered mobile facilities.

(j) The records required in this section must be made available to the Administrator or the Administrator's designated representative upon request.

(k) Notwithstanding the provisions of this section, product transfer documents must be maintained under the provisions of §§80.590, 80.592, and 80.602.

(l) The records required in this section must be kept for five years after they are required to be collected.

(m) Identifications of fuel designations can be limited to a sub-designation that accurately identifies the fuel and do not need to also include the broader designation. For example, NR diesel fuel does not also need to be designated as NRLM or MVNRLM diesel fuel.

(n) Notwithstanding the provisions of paragraphs (b)(2) and (b)(3) of this section, for batches of 15 ppm sulfur motor vehicle diesel fuel or California diesel fuel under §80.617(b) on which taxes have been paid per Section 4082 of the Internal Revenue Code (26 U.S.C. 4082), and 15 ppm sulfur NRLM diesel fuel or California diesel fuel under §80.617(b) into which red dye has been added per Section 4082 of the Internal Revenue Code (26 U.S.C. 4082), records are not required to be maintained separately for each entity or facility to whom fuel was delivered.

(o) In addition to the requirements of §§80.592 and 80.602, the following recordkeeping requirements shall apply to aggregated facilities consisting of a refinery and truck loading terminal:

(1) Any aggregated facility consisting of a refinery and truck loading terminal shall maintain records of all the following information for each batch of distillate fuel (and/or residual fuel with a sulfur level of 1,000 ppm or less that is intended for use in an ECA) produced by the refinery and sent over the aggregated facility's truck loading terminal rack:

(i) The batch volume.

(ii) The batch number, assigned under the batch numbering procedures under §§80.65(d)(3) and 80.502(d)(1).

(iii) The date of production.

(iv) A record designating the batch as distillate or residual fuel meeting the 500 ppm, 15 ppm, or 1,000 ppm ECA marine sulfur standard.

(v) A record indicating the volumes that were either taxed, dyed, or dyed and marked.

(2) Volume reports for all distillate fuel (and/or residual fuel with a sulfur level of 1,000 ppm or less that is intended for use in an ECA) from external sources (i.e., from another refiner or importer), as described in §80.601(f)(2), sent over the aggregated facility's truck rack.

[69 FR 39196, June 29, 2004, as amended at 70 FR 40898, July 15, 2005; 70 FR 70511, Nov. 22, 2005; 71 FR 25721, May 1, 2006; 75 FR 22974, Apr. 30, 2010]

§80.601   What are the reporting requirements for purposes of the designate and track provisions?

(a) Quarterly compliance period reports. Beginning February 28, 2007 and continuing through August 31, 2010, each entity required to register under §80.597 and to maintain records under §80.600 must report the following information separately for each of its facilities to the Administrator as specified in paragraph (d)(1) of this section except as provided in paragraph (e) of this section.

(1) Separately for each fuel designation category specified in paragraphs (a)(1)(i) and (a)(1)(ii) of this section and separately for each transferee facility, the total volume in gallons of distillate fuel designated under §80.598 for which custody was delivered by the reporting facility to any other entity or facility, and the EPA entity and facility registration number(s), as applicable, of the transferee.

(i) Beginning with the first compliance period and continuing up to and including the compliance period that starts April 1, 2007, fuel designated as 15 ppm or 500 ppm motor vehicle diesel fuel, or California diesel fuel as defined in §80.616 which is distributed outside the State of California pursuant to §80.617(b).

(ii) Beginning with the compliance period that starts June 1, 2007 and continuing up to and including the final reporting period, all fuel designation categories.

(2) Separately for each designation category specified in paragraphs (a)(2)(i) and (a)(2)(ii) of this section and separately for each transferor facility, the total volume in gallons of distillate fuel designated under §80.598 for which custody was received by the reporting facility, and the EPA entity and facility registration number(s), as applicable, of the transferor.

(i) Beginning with the first compliance period and continuing up to and including the compliance period that starts April 1, 2007, fuel designated as 15 ppm or 500 ppm motor vehicle diesel fuel, or California diesel fuel as defined in §80.616 which is distributed outside the State of California pursuant to §80.617(b).

(ii) Beginning with the compliance period that starts June 1, 2007 and continuing up to and including the final reporting period, all fuel designation categories.

(3) Any entity that receives custody of distillate fuel from another entity or facility that does not have an EPA facility identification number must report such batches as follows:

(i) Any batch of distillate fuel for which custody is received and which is marked pursuant to §80.510(d) or (f) shall be deemed designated as heating oil, any batch of distillate fuel for which custody is received and which is marked pursuant to §80.510(e) shall be deemed designated as heating oil or LM diesel fuel as applicable, and the report shall include that information under that designation.

(ii) Any batch of distillate fuel for which custody is received and for which taxes have been paid pursuant to Section 4082 of the Internal Revenue Code (26 U.S.C. 4082) shall be deemed designated as motor vehicle diesel fuel and the report shall include it under that designation.

(iii) Any batch of 500 ppm sulfur diesel fuel dyed pursuant to §80.520(b) and not marked pursuant to §80.510(d) and (f), and for which custody is received, shall be deemed designated as NRLM diesel fuel and the report shall include it under that designation.

(iv) Any batch of 500 ppm sulfur diesel fuel dyed pursuant to §80.520(b) and not marked pursuant to §80.510(e), and for which custody is received, shall be deemed designated as NR diesel fuel and the report shall include it under that designation.

(4) In the case of truck loading terminals, the results of all compliance calculations required under §80.599, and including:

(i) The total volumes received of each fuel designation required to be reported in paragraphs (a)(1) through (a)(3) of this section over the quarterly compliance period.

(ii) The total volumes delivered of each fuel designation required to be reported in paragraphs (a)(1) through (a)(3) of this section over the quarterly compliance period.

(iii) The total volumes produced or imported at the facility of each fuel designation required to be reported in paragraphs (a)(1) through (a)(3) of this section over the quarterly compliance period.

(iv) Beginning and ending inventories of each fuel designation required to be reported in paragraphs (a)(1) through(a)(3) of this section over the quarterly compliance period.

(v) The volume balance under §§80.599(b)(4) and 80.598(b)(9)(vi).

(vi) Beginning with the compliance period starting June 1, 2007, the volume balance under §§80.599(c)(2) and 80.598(b)(9)(viii)(A).

(b) Annual reports. Beginning August 31, 2007, all entities required to register under §80.597 and to maintain records for batches of fuel under §80.600 must report the following information separately for each of its facilities to the Administrator on an annual basis, as specified in paragraph (d)(2) of this section except as provided in paragraph (e) of this section.

(1) Separately for each designation category for which records are required to be kept under §80.600 and separately for each transferor facility;

(i) The total volume in gallons of distillate fuel designated under §80.598 for which custody was received by the reporting facility, and the EPA entity and facility registration number(s), as applicable, of the transferor; and

(ii) The total volume in gallons of distillate fuel designated under §80.598 which was produced or imported by the reporting facility.

(2) Separately for each designation category for which records are required to be kept under §80.600 and separately for each transferee facility, the total volume in gallons of distillate fuel designated under §80.598 for which custody was delivered by the reporting facility to any other entity or facility, and the EPA entity and facility registration number(s), as applicable, of the transferee except as provided under §80.600(a)(7), (a)(8), (b)(4), and (b)(5).

(3) The results of all compliance calculations required under §80.599, and including:

(i) The total volumes in gallons received of each fuel designation required to be reported in paragraph (b)(1) of this section over the applicable annual compliance period.

(ii) The total volumes produced or imported at the facility of each fuel designation required to be reported in paragraph (b)(1) of this section over the quarterly compliance period.

(iii) The total volumes in gallons delivered of each fuel designation required to be reported in paragraph (b)(2) of this section over the applicable annual compliance period.

(iv) Beginning and ending inventories of each fuel designation required to be reported in paragraphs (b)(1) and (b)(2) of this section for the annual compliance period.

(v) In the areas specified in §80.510(g)(2), for fuel designated as high sulfur NRLM diesel fuel delivered from June 1, 2007 through May 31, 2010, for fuel designated as 500 ppm NR diesel fuel delivered from June 1, 2010 through May 31, 2012, and for fuel designated as 500 ppm sulfur NRLM diesel fuel from June 1, 2012 through May 31, 2014, the refiner must report all information required under its compliance plan approved pursuant to §80.554(a)(4) and (b)(4) and including the ultimate consumers to whom each batch of fuel was delivered and the total delivered to each ultimate consumer for the compliance period.

(vi) Ending with the report due August 31, 2010, the volume balance under §80.598(b)(9)(vi) and §80.599(b)(4).

(vii) Ending with the report due August 31, 2010, the volume balance under §80.598(b)(9)(vii) and §80.599(b)(5), if applicable.

(viii) Ending with the report due August 31, 2010, the volume balance under §80.598(b)(9)(viii)(A) and §80.599(c)(2).

(ix) Beginning with the report due August 31, 2010, the volume balance under §80.598(b)(8)(viii)(B) and §80.599(c)(4).

(x) Beginning with the report due August 31, 2011, and ending with the report due August 31, 2012, the volume balance under §§80.598(b)(9)(ix) and 80.599(d)(2).

(4) In the case of aggregated facilities consisting of a refinery and truck loading terminal, the results of annual compliance calculations under §80.598 for any distillate fuel received from an external source on which taxes have not been assessed and is not dyed and/or marked that the refinery will be handing off to another party, rather than selling over the truck loading terminal rack.

(c) Additional information. The Administrator may request any additional information necessary to determine compliance with the requirements of §§80.598 and 80.599.

(d) Submission of reports for quarterly and annual compliance periods. (1) All quarterly reports shall be submitted to the Administrator for the compliance periods defined in §80.599(a)(1) as follows:

(i) The reports for the first and second quarterly compliance periods covering June 1, 2006 to September 30, 2006 and October 1, 2006 to December 31, 2006 respectively shall be submitted by February 28, 2007.

(ii) The reports for the third and fourth quarterly compliance periods covering January 1, 2007 to March 31, 2007 and April 1, 2007 to May 31, 2007 respectively shall be submitted by August 31, 2007.

(iii) The report for the fifth quarterly compliance period covering June 1, 2007 to September 30, 2007 shall be submitted by November 30, 2007.

(iv) The report for the sixth quarterly compliance period covering October 1, 2007 to December 31, 2007 shall be submitted by February 28, 2008.

(v) The reports for the quarterly compliance periods beginning with the first period in 2008 up to and including the first period in 2010 shall be submitted as follows:

(A) The report for the period covering January 1 to March 31 shall be submitted by the following May 31.

(B) The report covering the period covering April 1 to June 30 shall be submitted by the following August 31.

(C) The report for the period from July 1 to September 30 shall be submitted by the following November 30.

(D) The report for the quarterly compliance period from October 1 to December 31 shall be submitted by the following February 28.

(vi) The report for the quarterly compliance period from April 1, 2010 to May 31, 2010 shall be submitted by August 31, 2010.

(vii) The report for the last quarterly compliance period from June 1, 2010 to September 30, 2010 shall be submitted by November 30, 2010.

(2) All annual reports shall be submitted to the Administrator for the compliance periods defined in §80.599(a)(2) by August 31.

(3) All reports shall be submitted on forms and following procedures specified by the Administrator, shall include a statement that volumes reported to the Administrator under this section are in substantial agreement to volumes reported to the Internal Revenue Service (and if these volumes are not in substantial agreement, an explanation must be included) and shall be signed and certified by a responsible corporate officer of the reporting entity.

(e) Exclusions. Notwithstanding the provisions of this section, an entity is not required to report under paragraphs (a) or (b) of this section for facilities whose only recordkeeping requirements under §80.600 are under §80.600 (f) or (g) or to maintain records solely related to calculating compliance with the downgrading limitation under §80.527, §80.599(e) and §80.600(b)(1)(i) and (ii).

(f) Additional requirements for aggregated facilities consisting of a refinery and a truck loading terminal. In addition to the reporting requirements listed by paragraphs (a) through (e) of this section, as applicable, such aggregated facilities are also subject to the following requirements:

(1) Batch reports. Reports containing the requirements detailed in §§80.592(f) and 80.600(m), must be submitted for all distillate produced by the refinery and sent over the truck loading terminal rack.

(2) Quarterly volume reports. Reports detailing the quarterly totals of all designations, including whether the fuel was taxed or contained red dye (or red dye and the yellow marker), that left the truck loading terminal rack must be submitted for all distillate received from an external source or produced by the refinery.

(3) Quarterly hand-off reports. (i) Reports detailing the quarterly totals of all designations of fuel received from external refiner/importer sources, if any.

(ii) Reports detailing the quarterly totals of all undesignated fuel received from external refiner/importer sources that entered the designate and track system.

[69 FR 39198, June 29, 2004, as amended at 70 FR 40898, July 15, 2005; 70 FR 70512, Nov. 22, 2005; 71 FR 25722, May 1, 2006; 75 FR 22975, Apr. 30, 2010]

§80.602   What records must be kept by entities in the NRLM diesel fuel, ECA marine fuel, and diesel fuel additive production, importation, and distribution systems?

(a) Records that must be kept by parties in the NRLM diesel fuel, ECA marine fuel and diesel fuel additive production, importation, and distribution systems. Beginning June 1, 2007, or June 1, 2006, if that is the first period credits are generated under §80.535, any person who produces, imports, sells, offers for sale, dispenses, distributes, supplies, offers for supply, stores, or transports nonroad, locomotive or marine diesel fuel, or ECA marine fuel (beginning June 1, 2014) subject to the provisions of this subpart, must keep all the following records:

(1) The applicable product transfer documents required under §§80.590 and 80.591.

(2) For any sampling and testing for sulfur content for a batch of NRLM diesel fuel produced or imported and subject to the 15 ppm sulfur standard or any sampling and testing for sulfur content as part of a quality assurance testing program, and any sampling and testing for cetane index, aromatics content, marker solvent yellow 124 content or dye solvent red 164 content of NRLM diesel fuel, ECA marine fuel, NRLM diesel fuel additives or heating oil:

(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 sulfur content (including, where applicable, the test results with and without application of the adjustment factor under §80.580(d)), for cetane index or aromatics content, dye solvent red 164, marker solvent yellow 124 (as applicable), 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 NRLM diesel fuel or ECA marine fuel found not to be in compliance with the sulfur 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.

(b) Additional records to be kept by refiners and importers of NRLM diesel fuel and ECA marine fuel. Beginning June 1, 2007, or June 1, 2006, pursuant to the provisions of §§80.535 or 80.554(d) (or June 1, 2014, pursuant to the provisions of §80.510(k)), any refiner producing distillate or residual fuel subject to a sulfur standard under §§80.510, 80.513, 80.536, 80.554, 80.560, or 80.561, for each of its refineries, and any importer importing such fuel separately for each facility, shall keep records that include the following information for each batch of NRLM diesel fuel, ECA marine fuel, or heating oil produced or imported:

(1) The batch volume.

(2) The batch number, assigned under the batch numbering procedures under §80.65(d)(3).

(3) The date of production or import.

(4) A record designating the batch as one of the following:

(i) NRLM diesel fuel, NR diesel fuel, LM diesel fuel, ECA marine fuel, or heating oil, as applicable.

(ii) Meeting the 500 ppm sulfur standard of §80.510(a), the 15 ppm sulfur standard of §80.510(b) and (c), the 1,000 ppm sulfur standard of §80.510(k), or other applicable standard.

(iii) Dyed or undyed with visible evidence of solvent red 164.

(iv) Marked or unmarked with solvent yellow 124.

(5) For foreign refiners and importers of their fuel, the designations and other records required to be kept under §80.620.

(6) All of the following information regarding credits, kept separately for each compliance period, kept separately for each refinery and for each importer facility, kept separately if converted under §80.535(a) and (b) or §80.535(c) and (d), and kept separately from motor vehicle diesel fuel credits:

(i) The number of credits in the refiner's or importer's possession at the beginning of the calendar year.

(ii) The number of credits generated.

(iii) The number of credits used.

(iv) If any were obtained from or transferred to other parties, for each other party, its name, its EPA refiner or importer registration number consistent with §80.597, and the number obtained from, or transferred to, the other party.

(v) The number in the refiner's or importer's possession that will carry over into the subsequent calendar year compliance period.

(vi) Commercial documents that establish each transfer of credits from the transferor to the transferee.

(7) The calculations used to determine baselines or compliance with the volume requirements and volume percentages, as applicable, under this subpart.

(8) The calculations used to determine the number of credits generated.

(9) A copy of reports submitted to EPA under §80.604.

(c) Additional records importers must keep. Any importer shall keep records that identify and verify the source of each batch of certified DFR-Diesel and non-certified DFR-Diesel imported and demonstrate compliance with the requirements under §80.620.

(d) Additional records that must be kept by mobile facilities. Any registered mobile facility must keep records of all contracts from any contracted components (e.g. tank truck, barge, marine tanker, rail car, etc.) of each of its registered mobile facilities.

(e) Length of time records must be kept. The records required in this section shall be kept for five years from the date they were created, except that records relating to credit transfers shall be kept by the transferor for five years from the date the credits were transferred, and shall be kept by the transferee for five years from the date the credits were transferred, used or terminated, whichever is later.

(f) Make records available to EPA. On request by EPA, the records required in this section must be made available to the Administrator or the Administrator's representative. For records that are electronically generated or maintained, the equipment and software necessary to read the records shall be made available, or if requested by EPA, electronic records shall be converted to paper documents which shall be provided to the Administrator's authorized representative.

(g) Additional records to be kept by aggregated facilities consisting of a refinery and a truck loading terminal. In addition to the applicable records required by paragraphs (a) through (f) of this section, such aggregated facilities must also keep the following records:

(1) All the following information for each batch of distillate fuel (or residual fuel with a sulfur level of 1,000 ppm or less if such fuel is intended for use in an ECA) produced by the refinery and sent over the aggregated facility's truck rack:

(i) The batch volume.

(ii) The batch number, assigned under the batch numbering procedures under §§80.65(d)(3) and 80.502(d)(1).

(iii) The date of production.

(iv) A record designating the batch as one of the following:

(A) NRLM diesel fuel, NR diesel fuel, LM diesel fuel, ECA marine fuel, or heating oil, as applicable.

(B) Meeting the 500 ppm sulfur standard of §80.510(a), the 15 ppm sulfur standard of §80.510(b) and (c), the 1,000 ppm sulfur standard of §80.510(k), or other applicable standard.

(C) Dyed or undyed with visible evidence of solvent red 164.

(D) Marked or unmarked with solvent yellow 124.

(2) Hand-off reports for all distillate fuel (or residual fuel with a sulfur level of 1,000 ppm or less if such fuel is intended for use in an ECA) from external sources (i.e., from another refiner or importer), as described in §80.601(f)(2).

[69 FR 39199, June 29, 2004, as amended at 70 FR 70513, Nov. 22, 2005; 71 FR 25723, May 1, 2006; 75 FR 22975, Apr. 30, 2010]

§80.603   What are the pre-compliance reporting requirements for NRLM diesel fuel?

(a) Except as provided in paragraph (c) of this section, beginning on June 1, 2005, and for each year until June 1, 2011, or until the entity produces or imports NR or NRLM diesel fuel meeting the 15 ppm sulfur standard of §80.510(b) or (c), all refiners and importers planning to produce or import NR or NRLM diesel fuel, shall submit the following information to EPA:

(1) Any changes to the information submitted for the company registration;

(2) Any changes to the information submitted for any refinery or import facility registration;

(3) Any estimate of the average daily volumes (in gallons) of each sulfur grade of motor vehicle and NRLM diesel fuel produced (or imported) at each refinery (or import facility). These volume estimates must be provided both for fuel produced from crude oil, as well as any fuel produced from other sources, and must be provided for the periods of June 1, 2010 through December 31, 2010, calendar years 2011 through 2013, January 1, 2014 through May 31, 2014, and June 1, 2014 through December 31, 2014;

(4) If expecting to participate in the credit trading program, estimates of the number of credits to be generated and/or used each year the program;

(5) Information on project schedule by quarter of known or projected completion date by the stage of the project, for example, following the five project phases described in EPA's June 2002 Highway Diesel Progress Review report (EPA420-R-02-016, http://www.epa.gov/otaq/regs/hd2007/420r02016.pdf): Strategic planning, Planning and front-end engineering, Detailed engineering and permitting, Procurement and construction, and Commissioning and startup;

(6) Basic information regarding the selected technology pathway for compliance (e.g., conventional hydrotreating vs. other technologies, revamp vs. grassroots, etc.);

(7) Whether capital commitments have been made or are projected to be made; and

(8) The pre-compliance reports due in 2006 and later years must provide an update of the progress in each of these areas.

(b) Reports under this section may be submitted in conjunction with reports submitted under §80.594.

(c) The pre-compliance reporting requirements of this section do not apply to refineries subject to the provisions of §80.513.

[69 FR 39200, June 29, 2004]

§80.604   What are the annual reporting requirements for refiners and importers of NRLM diesel fuel?

Beginning with the annual compliance period that begins June 1, 2007, or the first period during which credits are generated, transferred or used, or the first period during which NRLM diesel fuel or heating oil is produced under a small refiner compliance option under this subpart, whichever is earlier, any refiner or importer who produces or imports NRLM diesel fuel must submit annual compliance reports for each refinery and importer facility that contain the following information required, and such other information as EPA may require.

(a) All refiners and importers. (1) The refiner or importer's company name and the EPA company and facility identification number.

(2) If the refiner is a small refiner, a statement regarding to which small refiner option it is subject.

(b) Small refiners. (1) For each refinery of small refiners subject to the provisions of §80.551(g) and §80.554(a) for each compliance period from June 1, 2007 through May 31, 2010, report the following:

(i) The total volume of diesel fuel produced and designated as NRLM diesel fuel.

(ii) The volume of diesel fuel produced and designated as NRLM diesel fuel having a sulfur content less than or equal to the 500 ppm sulfur standard under §80.510(a).

(iii) The total volume of diesel fuel produced and designated as NRLM diesel fuel having a sulfur content greater than the 500 ppm sulfur standard under §80.510(a).

(iv) The total volume of heating oil produced.

(v) The baseline under §80.554(a)(1).

(vi) The total volume of diesel fuel produced and designated as NRLM diesel fuel that is exempt from the 500 ppm sulfur standard of §80.510(a).

(vii) The total volume, if any, of NRLM diesel fuel subject to the 500 ppm sulfur standard §80.510(a) that had a sulfur content exceeding 500 ppm.

(2) For each refinery of small refiners subject to the provisions of §80.551(g) and §80.554(b), for each compliance period between June 1, 2010 and May 31, 2012, report the following:

(i) The total volume of diesel fuel produced and designated as NR diesel fuel.

(ii) The total volume of diesel fuel produced and designated as LM diesel fuel.

(iii) The total volume of diesel fuel produced and designated as NR diesel fuel subject to the 500 ppm sulfur standard under §80.510(a).

(iv) The total volume of diesel fuel produced and designated as LM diesel fuel subject to the 500 ppm sulfur standard under §80.510(a).

(v) The volume of diesel fuel produced and designated as NR diesel fuel having a sulfur content of 15 ppm or less.

(vi) The baseline under §80.554(b)(1).

(vii) The total volume of NRLM diesel fuel produced that is eligible for the sulfur standard under §80.510(a).

(viii) The total volume, if any, of NRLM diesel fuel subject to the 15 ppm sulfur standard that had a sulfur content in excess of 15 ppm.

(3) For each refinery of small refiners subject to the provisions of §80.551(g) and §80.554(b), for each compliance period between June 1, 2012 and May 31, 2014, report the following:

(i) The total volume of diesel fuel produced and designated as NRLM diesel fuel.

(ii) The total volume diesel fuel produced and designated as NRLM diesel fuel subject to the 500 ppm sulfur standard under §80.510(a).

(iii) The total volume of diesel fuel produced and designated as NRLM diesel fuel having a sulfur content less than or equal to the 15 ppm sulfur standard under §80.510(c).

(iv) The baseline under §80.554(b)(1).

(v) The total volume of NRLM diesel fuel produced that is eligible for the 500 ppm sulfur standard under §80.510(a).

(vi) The total volume, if any, of NRLM diesel fuel subject to the 15 ppm sulfur standard that had a sulfur content in excess of 15 ppm.

(4) For each refinery of a small refiner that elects to produce NRLM diesel fuel subject to the 15 ppm sulfur standard of §80.510(c) beginning June 1, 2006 under §80.551(g) and §80.554(d), for each compliance period report the following:

(i) The total volume of diesel fuel produced and designated as NRLM diesel fuel.

(ii) The total volume of diesel fuel produced and designated as NRLM diesel fuel having a sulfur content less than or equal to 15 ppm.

(iii) The percentages of NRLM diesel fuel produced and designated having a sulfur content less than or equal to 15 ppm under §80.554(d)(1)(i) and (ii).

(iv) The deficit, if any, and the number of credits purchased, if any, to cover any deficit as provided in §80.554(d)(3).

(v) A report of the small refiner's progress toward compliance with the gasoline standards under §§80.240 and 80.255.

(c) Credit generation and use. Information regarding the generation, use, transfer and retirement of credits, separately by refinery and import facility, including the following:

(1) The number of credits at the beginning of the compliance period.

(2) The number of credits generated.

(3) The number of credits used.

(4) If any credits were obtained from or transferred to other refineries or importers, for each other refinery or importer, the name, address, the EPA company identification number, and the number of credits obtained from or transferred to the other party.

(5) The number of credits retired.

(6) The credit balance at the beginning and end of the compliance period.

(d) Batch reports. For each batch of NRLM diesel fuel and heating oil (if applicable) produced or imported and delivered during the compliance periods under paragraph (b) of this section, include the following:

(1) The batch volume.

(2) The batch number assigned using the batch numbering conventions under §80.65(d)(3) and the appropriate designation under §80.598.

(3) The date of production or import.

(4) For each batch provide the information specified in paragraph (a)(1) of this section.

(5) [Reserved]

(6) Whether the batch was dyed with visible evidence of dye solvent red 164 before leaving the refinery or import facility or was undyed.

(7) Whether the batch was marked with marker solvent yellow 124 before leaving the refinery or import facility or was unmarked.

(e) Additional reporting requirements for importers. Importers of NRLM diesel fuel are subject to the following additional requirements:

(1) The reporting requirements under §80.620, if applicable.

(2) Importers must exclude certified DFR-Diesel from calculations under this section.

(f) Report submission. Any report required by this section must be—

(1) On forms and following procedures specified by the Administrator of EPA;

(2) Signed and certified as meeting all the applicable requirements of this subpart by the owner or a responsible corporate officer of the refiner or importer; and

(3) Except for small refiners subject to §80.554(d), submitted to EPA by September 1 each year for the prior annual compliance period. Small refiners subject to the provisions of §80.554(d), reports must be submitted by September 1 for the previous reporting period.

(4) With the exception of reports required under paragraph (b)(3) of this section, no reports will be required under this section after September 1, 2014.

[69 FR 39200, June 29, 2004, as amended at 70 FR 40899, July 15, 2005; 79 FR 23654, Apr. 28, 2014]

Exemptions

§80.605   [Reserved]

§80.606   What national security exemption applies to fuels covered under this subpart?

(a) The standards of all the fuels listed in paragraph (b) of this section do not apply to fuel that is produced, imported, sold, offered for sale, supplied, offered for supply, stored, dispensed, or transported for use in any of the following:

(1) Tactical military motor vehicles or tactical military nonroad engines, vehicles or equipment, including locomotive and marine, having an EPA national security exemption from the motor vehicle emission standards under 40 CFR 85.1708, or from the nonroad engine emission standards under 40 CFR part 89, 92, 94, 1042, or 1068.

(2) Tactical military motor vehicles or tactical military nonroad engines, vehicles or equipment, including locomotive and marine, that are not subject to a national security exemption from vehicle or engine emissions standards as described in paragraph (a)(1) of this section but, for national security purposes (for purposes of readiness for deployment oversees), need to be fueled on the same fuel as the vehicles, engines, or equipment for which EPA has granted such a national security exemption.

(b) The exempt fuel must meet any of the following:

(1) The motor vehicle diesel fuel standards of §80.520(a)(1), (a)(2), and (c).

(2) The nonroad, locomotive, and marine diesel fuel standards of §80.510(a), (b), and (c).

(3) The 1,000 ppm ECA marine fuel standards of §80.510(k).

(c) The exempt fuel must meet all the following conditions:

(1) It must be accompanied by product transfer documents as required under §80.590.

(2) It must be segregated from non-exempt MVNRLM diesel fuel and ECA marine fuel at all points in the distribution system.

(3) It must be dispensed from a fuel pump stand, fueling truck or tank that is labeled with the appropriate designation of the fuel, such as “JP-5” or “JP-8”.

(4) It may not be used in any motor vehicles or nonroad engines, equipment or vehicles, including locomotive and marine, other than the vehicles, engines, and equipment referred to in paragraph (a) of this section.

[69 FR 39201, June 29, 2004, as amended at 75 FR 22975, Apr. 30, 2010]

§80.607   What are the requirements for obtaining an exemption for diesel fuel or ECA marine fuel used for research, development or testing purposes?

(a) Written request for a research and development exemption. Any person may receive an exemption from the provisions of this subpart for diesel fuel or ECA marine fuel used for research, development, or testing purposes by submitting the information listed in paragraph (c) of this section to: Director, Transportation and Regional Programs Division (6406J), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460 (postal mail); or Director, Transportation and Regional Programs Division, U.S. Environmental Protection Agency, 1310 L Street, NW., 6th floor, Washington, DC 20005 (express mail/courier); and Director, Air Enforcement Division (2242A), U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.

(b) Criteria for a research and development exemption. For a research and development 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 a research and development 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 research and development 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 fuel which does not comply with the requirements of §§80.520 and 80.521 for motor vehicle diesel fuel, or §80.510 for NRLM diesel fuel or ECA marine fuel.

(4) With regard to control, a demonstration that the program affords EPA a monitoring capability, including all the following:

(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 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 research and development fuel will be segregated from motor vehicle diesel fuel, NRLM diesel fuel, or ECA marine fuel, as applicable, and how fuel pumps will be labeled to ensure proper use of the research and development 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.

(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 (c), and the location where such information will be maintained.

(d) Additional requirements. (1) The product transfer documents associated with research and development motor vehicle diesel fuel must comply with requirements of §80.590(b)(3).

(2) The research and development fuel must be designated by the refiner or supplier, as applicable, as research and development fuel.

(3) The research and development fuel must be kept segregated from non-exempt MVNRLM diesel fuel and ECA marine fuel at all points in the distribution system.

(4) The research and development fuel must not be sold, distributed, offered for sale or distribution, dispensed, supplied, offered for supply, transported to or from, or stored by a fuel retail outlet, or by a wholesale purchaser-consumer facility, unless the wholesale purchaser-consumer facility is associated with the research and development program that uses the 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 on vehicles remaining in service, or the responsible person will be liable for a violation of the Clean Air Act section 203(a)(3) (42 U.S.C. 7522 (a)(3)) unless sufficient evidence is supplied that the emission controls or elements of design were not damaged.

(e) Mechanism for granting of an exemption. A request for a research and development exemption will be deemed approved by the earlier of 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 fuel subject to the approval shall not exceed the estimated amount under 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 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.

(f) Effects of exemption. Motor vehicle diesel fuel, NRLM diesel fuel, or ECA marine fuel that is subject to a research and development 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.

(g) Notification of completion. The party shall notify EPA in writing within 30 days after completion of the research and development program.

[69 FR 39202, June 29, 2004, as amended at 75 FR 22976, Apr. 30, 2010]

§80.608   What requirements apply to diesel fuel and ECA marine fuel for use in the Territories?

The sulfur standards of §80.520(a)(1) and (c) related to motor vehicle diesel fuel, of §80.510(a), (b), and (c) related to NRLM diesel fuel, and of §80.510(k) related to ECA marine fuel, do not apply to 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 all the following:

(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 §80.590(b)(1).

(d) Segregated from non-exempt MVNRLM diesel fuel and/or non-exempt ECA marine fuel at all points in the distribution system from the point the 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 (or the United States Emission Control Area) but outside these Territories.

[75 FR 22976, Apr. 30, 2010]

§80.609   [Reserved]

Violation Provisions

§80.610   What acts are prohibited under the diesel fuel sulfur program?

No person shall—

(a) Standard, dye, marker or product violation. (1) Produce, import, sell, offer for sale, dispense, supply, offer for supply, store or transport motor vehicle diesel fuel, NRLM diesel fuel, ECA marine fuel or heating oil that does not comply with the applicable standards, dye, marking or any other product requirements under this subpart I and 40 CFR part 69, except as allowed by 40 CFR part 1043 for ECA marine fuel.

(2) Beginning June 1, 2007, produce, import, sell, offer for sale, dispense, supply, offer for supply, store or transport any diesel fuel for use in motor vehicle or nonroad engines that contains greater than 0.10 milligrams per liter of solvent yellow 124, except for 500 ppm sulfur diesel fuel sold, offered for sale, dispensed, supplied, offered for supply, stored, or transported for use in LM. from June 1, 2010 through November 30, 2012 for use only in locomotive or marine diesel engines that is marked under the provisions of §80.510(e).

(3) Beginning June 1, 2007, produce, import, sell, offer for sale, dispense, supply, offer for supply, store or transport heating oil for use in any nonroad diesel engine, including any locomotive or marine diesel engine.

(b) Designation and volume balance violation. Produce, import, sell, offer for sale, dispense, supply, offer for supply, store or transport motor vehicle diesel, NRLM diesel fuel, ECA marine fuel, heating oil or other fuel that does not comply with the applicable designation or volume balance requirements under §§80.598 and 80.599.

(c) Additive violation. (1) Produce, import, sell, offer for sale, dispense, supply, offer for supply, store or transport any fuel additive for use at a downstream location that does not comply with the applicable requirements of §80.521.

(2) Blend or permit the blending into motor vehicle diesel fuel, NRLM diesel fuel, or ECA marine fuel at a downstream location, or use, or permit the use, in motor vehicle diesel fuel, NRLM diesel fuel, or ECA marine fuel, of any additive that does not comply with the applicable requirements of §80.521.

(d) Used motor oil violation. Introduce into the fuel system of a model year 2007 or later diesel motor vehicle or model year 2011 or later nonroad diesel engine (except for locomotive or marine engines) or other nonroad diesel engine certified for the use of 15 ppm sulfur content fuel, or permit the introduction into the fuel system of such vehicle or nonroad engine of used motor oil, or used motor oil blended with diesel fuel, that does not comply with the requirements of §80.522.

(e) Improper fuel usage violation. (1) Introduce, or permit the introduction of, fuel into model year 2007 or later diesel motor vehicles, and beginning December 1, 2010 into any diesel motor vehicle, that does not comply with the standards and dye requirements of §80.520(a) and (b);

(2) Introduce, or permit the introduction of, fuel into any nonroad diesel engine (including any locomotive or marine diesel engine) that does not comply with the applicable standards, dye and marking requirements of §80.510(a), (d), and (e) and §80.520(b) beginning on the following dates:

(i) This prohibition begins December 1, 2007 in the areas specified in §80.510(g)(1) and (g)(2), except as specified in paragraph (e)(2)(ii) of this section.

(ii) This prohibition begins December 1, 2010 in the area specified in §80.510(g)(2) for NRLM diesel fuel that is produced in accordance with a compliance plan approved under §80.554.

(iii) This prohibition begins December 1, 2010 in all other areas.

(3) Introduce, or permit the introduction of, fuel into any nonroad diesel engine (other than locomotive and marine diesel engines) that does not comply with the applicable standards, dye and marking requirements of §80.510(b) and (e) beginning on the following dates:

(i) This prohibition begins December 1, 2010 in the areas specified in §80.510(g)(1) and (g)(2), except as specified paragraph (e)(3)(ii) of this section.

(ii) This prohibition begins December 1, 2014 in the area specified in §80.510(g)(2) for NRLM diesel fuel that is produced in accordance with a compliance plan approved under §80.554.

(iii) This prohibition begins December 1, 2014, in all other areas.

(4) Introduce, or permit the introduction of, fuel into any locomotive and marine diesel engine which does not comply with the applicable standards, dye and marking requirements of §80.510(c) and §80.510(f) in the following areas beginning on the following dates:

(i) This prohibition begins December 1, 2012 in the areas specified in §80.510(g)(1) and (g)(2), except as specified in paragraph (e)(4)(ii) of this section.

(ii) This prohibition does not apply in the area specified in §80.510(g)(2) for NRLM diesel fuel that is produced in accordance with a compliance plan approved under §80.554.

(iii) This prohibition begins December 1, 2014, in all other areas.

(5) Introduce, or permit the introduction of, fuel into any model year 2011 or later nonroad diesel engine certified for use on 15 ppm sulfur content fuel, diesel fuel which does not comply with the applicable standards, dye and marking requirements of §80.510(b) through (f).

(6) Beginning January 1, 2015, introduce (or permit the introduction of) any fuel with a sulfur content greater than 1,000 ppm for use in a Category 3 marine vessel within an ECA, except as allowed by 40 CFR part 1043. This prohibition is in addition to other prohibitions in this section.

(f) Cause another party to violate. Cause another person to commit an act in violation of paragraphs (a) through (e) of this section.

(g) Cause violating fuel or additive to be in the distribution system. Cause motor vehicle diesel fuel, NRLM diesel fuel, or ECA marine fuel to be in the diesel fuel distribution system which does not comply with the applicable standard, dye or marker requirements or the product segregation requirements of this subpart I, or cause any fuel additive to be in the fuel additive distribution system which does not comply with the applicable sulfur standards under §80.521.

[69 FR 39203, June 29, 2004, as amended at 75 FR 22976, Apr. 30, 2010; 77 FR 61294, Oct. 9, 2012]

§80.611   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, dye and marker requirements. Compliance with the standards, dye, and marker requirements in §§80.510, 80.511, 80.520, and 80.521 shall be determined based on the level of the applicable component or parameter, using the sampling methodologies specified in §80.330(b), as applicable, and an approved testing methodology under the provisions of §§80.580 through 80.586 for sulfur; §80.2(w) for cetane index; §80.2(z) for aromatic content; and §80.582 for fuel marker. 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 additive, 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 regulatory 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 (a), business records, and commercial documents.

(b) Compliance with other requirements. Determination of compliance with the requirements and prohibitions of this subpart other than the standards described in paragraph (a) of this section and in §§80.510, 80.511, 80.520, and 80.521, 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.

[69 FR 39204, June 29, 2004]

§80.612   Who is liable for violations of this subpart?

(a) Persons liable for violations of prohibited acts—(1) Standard, dye, marker, additives, used motor oil, heating oil, fuel introduction, and other product requirement violations. (i) Any refiner, importer, distributor, reseller, carrier, retailer, wholesale purchaser-consumer who owned, leased, operated, controlled or supervised a facility where a violation of any provision of §80.610(a) through (e) occurred, or any other person who violates any provision of §80.610(a) through (e), is deemed liable for the applicable violation, except that distributors who receive diesel fuel or distillate from the point where it is taxed, dyed or marked, and retailers and wholesale purchaser-consumers are not deemed liable for any violation of §80.610(b).

(ii) Any person who causes another person to violate §80.610(a) through (e) is liable for a violation of §80.610(f).

(iii) 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 or distillate that violates §80.610(a), is deemed in violation of §80.610(f).

(iv) Any person who produced, imported, sold, offered for sale, dispensed, supplied, offered to supply, stored, transported, or caused the transportation or storage of a diesel fuel additive which is used in motor vehicle diesel fuel or NRLM diesel fuel that is found to violate §80.610(a), is deemed in violation of §80.610(f).

(2) Cause violating diesel fuel or additive to be in the distribution system. Any refiner, importer, distributor, reseller, carrier, retailer, or wholesale purchaser-consumer or any other person who owned, leased, operated, controlled or supervised a facility from which distillate fuel or additive was released into the distribution system which does not comply with the applicable standards, marking or dye requirements of this Subpart I is deemed in violation of §80.610(g).

(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 §80.610(a) or (b) occurred, is deemed in violation of §80.610(a) or (b), as applicable.

(4) Carrier causation. In order for a distillate fuel or diesel fuel additive carrier to be liable under paragraph (a)(1)(ii), (a)(1)(iii), or (a)(1)(iv) of this section, as applicable, 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 comply with other provisions of this subpart. Any person who:

(1) Fails to comply with the requirements of 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 comply with the requirements of a provision of this subpart not addressed in paragraph (a) of this section, is liable for causing a violation of that provision.

[66 FR 5136, Jan. 18, 2001, as amended at 69 FR 39204, June 29, 2004; 75 FR 22977, Apr. 30, 2010]

§80.613   What defenses apply to persons deemed liable for a violation of a prohibited act under this subpart?

(a) Presumptive liability defenses. (1) Any person deemed liable for a violation of a prohibition under §80.612(a)(1)(i), (a)(1)(iii), (a)(2), or (a)(3), will not be deemed in violation if the person demonstrates all of the following, as applicable:

(i) The violation was not caused by the person or the person's employee or agent;

(ii) Product transfer documents account for fuel or additive found to be in violation and indicate that the violating product was in compliance with the applicable requirements when it was under the person's control;

(iii) The person conducted a quality assurance sampling and testing program, as described in paragraph (d) of this section, except for those persons subject to the provisions of paragraph (a)(1)(iv), (a)(1)(v), or (a)(1)(vi) of this section or §80.614. 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, wholesale purchaser-consumers, and ultimate consumers of diesel fuel are not required to conduct quality assurance programs;

(iv) For refiners and importers of diesel fuel subject to the 15 ppm sulfur standard under §80.510(b) or (c) or §80.520(a)(1), the 500 ppm sulfur standard under §80.510(a) or §80.520(c), and/or the 1,000 ppm sulfur standard under §80.510(k), test results that—

(A) Were conducted according to an appropriate test methodology approved or designated under §§80.580 through 80.586, 80.2(w), or 80.2(z), as appropriate; and

(B) Establish that, when it left the party's control, the fuel did not violate the sulfur, cetane or aromatics standard, or the dye or marking provisions of §§80.510 or 80.511, as applicable;

(v) For any truck loading terminal or any other person who delivers heating oil for delivery to the ultimate consumer and is subject to the requirement to mark heating oil or LM diesel fuel under §80.510(d) through (f), data which demonstrates that when it left the truck loading terminal or other facility, the concentration of marker solvent yellow 124 was equal to or greater than six milligrams per liter. In lieu of testing for marker solvent yellow 124 concentration, evidence may be presented of an oversight program, including records of marker inventory, purchase and additization, and records of periodic inspection and calibration of additization equipment that ensures that marker is added to heating oil or LM diesel fuel, as applicable, under §80.510(d) through (f) in the required concentration;

(vi) Except as provided in §80.614, for any person who, at a downstream location, blends a diesel fuel additive subject to the requirements of §80.521(b) into motor vehicle diesel fuel or NRLM diesel fuel subject to the 15 ppm sulfur standard under §80.520(a) or §80.510(b) or (c), except a person who blends additives into fuel tanker trucks at a truck loading rack subject to the provisions of paragraph (d)(2) of this section, test results which are conducted subsequent to the blending of the additive into the fuel, and which comply with the requirements of paragraphs (a)(1)(iv)(A) and (B) of this section; and

(vii) Any person deemed liable for a designation or volume balance provisions violation under §80.610(b) and 80.612(a) will not be deemed in violation if the person demonstrates, through product transfer documents, records, reports and other evidence that the diesel fuel or distillate was properly designated and volume balance requirements were met.

(2) Any person deemed liable for a violation under §80.612(a)(1)(iv), in regard to a diesel fuel additive subject to the requirements of §80.521(a), will not be deemed in violation if the person demonstrates that—

(i) Product transfer document(s) account for the additive in the fuel found to be in violation, which comply with the requirements under §80.591(a), and indicate that the additive was in compliance with the applicable requirements while it was under the party's control; and

(ii) For the additive's manufacturer or importer, test results which accurately establish that, when it left the party's control, the additive in the diesel fuel determined to be in violation did not have a sulfur content greater than or equal to 15 ppm.

(A) Analysis of the additive sulfur content pursuant to this paragraph (a)(2) may be conducted at the time the batch was manufactured or imported, or on a sample of that batch which the manufacturer or importer retains for such purpose for a minimum of two years from the date the batch was manufactured or imported.

(B) After two years from the date the additive batch was manufactured or imported, the additive manufacturer or importer is no longer required to retain samples for the purpose of complying with the testing requirements of this paragraph (a)(2).

(C) The analysis of the sulfur content of the additive must be conducted pursuant to the requirements of §80.580.

(3) Any person who is deemed liable for a violation under §80.612(a)(1)(iv) with regard to a diesel fuel additive subject to the requirements of §80.521(b), will not be deemed in violation if the person demonstrates that—

(i) The violation was not caused by the party or the party's employee or agent;

(ii) Product transfer document(s) which comply with the additive information requirements under §80.591(b), account for the additive in the fuel found to be in violation, and indicate that the additive was in compliance with the applicable requirements while it was under the party's control; and

(iii) For the additive's manufacturer or importer, test results which accurately establish that, when it left the party's control, the additive in the diesel fuel determined to be in violation was in conformity with the information on the additive product transfer document pursuant to the requirements of §80.591(b). The testing procedures applicable under paragraph (a)(2) of this section, also apply under this paragraph (a)(3).

(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 paragraph (a)(1) 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 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. To demonstrate an acceptable quality assurance program under paragraph (a)(1)(iii) of this section, a person must present evidence of the following:

(1) A periodic sampling and testing program to ensure the diesel fuel or additive the person sold, dispensed, supplied, stored, or transported, meets the applicable standards and requirements, including the requirements relating to the presence of marker solvent yellow 124.

(2) For those parties who, at a downstream location, blend diesel fuel additives subject to the requirements of §80.521(b) into fuel trucks at a truck loading rack, the periodic sampling and testing program required under this paragraph (d) must ensure, by taking into account the greater risk of noncompliance created through use of a high sulfur additive, that the diesel fuel into which the additive was blended meets the applicable standards subsequent to the blending.

(3) On each occasion when diesel fuel or additive is found not in compliance with the applicable standard:

(i) The person immediately ceases selling, offering for sale, dispensing, supplying, offering for supply, storing or transporting the non-complying product.

(ii) 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).

(4) For any carrier who transports diesel fuel or additive in a tank truck, the quality assurance program required under this paragraph (d) need not include its own periodic sampling and testing of the 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, product segregation and product transfer document requirements, and the periodic review of records received in the ordinary course of business concerning diesel fuel or additive quality and delivery.

(e) Alternative defense requirements. A person deemed liable under §80.612(a) for a violation of §80.610(a)(1), concerning diesel fuel that is sold, offered for sale, or dispensed at a retail outlet and that does not meet the applicable sulfur content standard under §80.520(a)(1), as adjusted under §80.580(d), may comply with the following alternative defense requirements in lieu of the requirements in paragraphs (a) through (d) of this section to the extent provided for, and subject to the conditions and limitations set forth in this paragraph (e):

(1) Independent survey association. To comply with the alternative defense requirements under this paragraph (e), a person must participate in the funding of a consortium which arranges to have an independent survey association conduct a statistically valid program of annual compliance surveys pursuant to a survey plan which has been approved by EPA, in accordance with the requirements of paragraphs (e)(2) through (e)(4) of this section.

(2) General requirements. The consortium survey program under this paragraph (e) must be:

(i) Planned and conducted by an independent survey association that meets the requirements in §80.68(c)(13)(i);

(ii) Conducted at diesel fuel retail outlets nationwide; and

(iii) Representative of all motor vehicle diesel fuel subject to the 15 ppm sulfur standard under §80.520(a)(1) dispensed at diesel fuel retail outlets nationwide.

(3) Independent survey association requirements. The consortium described in paragraph (e)(1) of this section shall require the independent survey association conducting the surveys to:

(i) Submit to EPA for approval each calendar year a proposed survey plan in accordance with the requirements of paragraph (e)(4) of this section.

(ii) Obtain samples of motor vehicle diesel fuel subject to the 15 ppm sulfur standard under §80.520(a)(1) in accordance with the survey plan approved under this paragraph (e), or immediately notify EPA of any refusal of retail outlets to allow samples to be taken;

(iii) Test, or arrange to be tested, the samples required under paragraph (e)(3)(ii) of this section for sulfur content as follows—

(A) Samples collected at retail outlets shall be shipped the same day the samples are collected via overnight service to the laboratory, and analyzed for sulfur content within twenty-four hours after receipt of the sample in the laboratory.

(B) Any laboratory to be used by the independent survey association for sulfur testing shall be approved by EPA and its sulfur test method shall comply with the provisions of §§80.584, 80.585 and 80.586.

(C) For purposes of the alternative defense requirements in this paragraph (e), test results shall be rounded to a whole number using ASTM E 29-02e1, Standard Practice for Using Significant Digits in Test Data to Determine Conformance with Specifications, rounding method procedures. The Director of the Federal Register approved the incorporation by reference of ASTM E 29-02e1 as prescribed in 5 U.S.C. 552(a) and 1 CFR part 51. Anyone may purchase copies of this standard from ASTM International, 100 Barr Harbor Dr., West Conshohocken, PA 19428, (610) 832-9585. Anyone may inspect copies at the U.S. EPA, EPA Docket Center, Room 3334, EPA West Building, 1301 Constitution Ave., NW., Washington, DC 20460, (202) 566-9744, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

(iv) Provide notice of samples with sulfur content greater than the 15 ppm standard under §80.520(a)(1), as adjusted under §80.580(d), as follows:

(A) In the case of any test result that is one or two ppm greater than the 15 ppm standard under §80.520(a)(1), as adjusted under §80.580(d), the independent survey association shall, within twenty-four hours after the laboratory receives the sample, send notification of the test result as follows: In the case of a sample collected at a retail outlet at which the brand name of a refiner or importer is displayed, to the refiner or importer, and EPA; and in the case of a sample collected at other retail outlets, to the retailer and EPA. This initial notification to a refiner shall include specific information concerning the name and address of the retail outlet, contact information, the brand, and the sulfur content of the sample.

(B) In the case of any test result that is three or more ppm greater than the 15 ppm standard under §80.520(a)(1), as adjusted under §80.580(d), or for a test result that is one or two ppm greater than the 15 ppm standard under §80.520(a)(1), as adjusted under §80.580(d), and the retail outlet has had an exceedance within the previous two years, the independent survey association shall, within the time limits specified in paragraph (e)(3)(iv)(A) of this section, provide notice to the parties described in paragraph (e)(3)(iv)(A) of this section. The notice to EPA must include the name and address of the retail outlet, and the telephone number, if known.

(C) The independent survey association shall provide notice to the identified contact person or persons for each party specified in paragraphs (e)(3)(iv)(A) and (B) of this section in writing (e.g. e-mail or facsimile) and, if requested by the identified contact person, by telephone.

(v) Provide to EPA quarterly and annual summary survey reports which include the information specified in paragraph (e)(8) of this section.

(vi) Maintain all records relating to the surveys conducted under this paragraph (e) for a period of at least 5 years.

(vii) At any time permit any representative of EPA to monitor the conduct of the surveys, including sample collection, transportation, storage, and analysis.

(4) Survey plan design requirements. The proposed survey plan required under paragraph (e)(3)(i) of this section shall, at a minimum, include the following:

(i) Number of surveys. The survey plan shall include four surveys each calendar year. The four surveys collectively are called the survey series.

(ii) Sampling areas. The survey plan shall include sampling in three types of areas, called sampling strata, during each survey: Densely populated areas, transportation corridors and rural areas. These sampling strata shall be further divided into discrete sampling areas, or clusters. Each survey shall include sampling in at least 40 sampling areas in each stratum, randomly selected.

(iii) No advance notice of surveys. The survey plan shall include procedures to keep confidential from any regulated party, but not from EPA, the identification of the sampling areas that are included in any survey plan prior to the beginning of a survey in an area.

(iv) Retail outlet selection.

(A) The retail outlets to be sampled in a sampling area shall be selected from among all retail outlets in the sampling area that sell motor vehicle diesel fuel subject to the 15 ppm sulfur standard under §80.520(a)(1), with probability of selection proportionate to the volume of motor vehicle diesel fuel subject to the 15 ppm sulfur standard under §80.520(a)(1) sold at the retail outlets, and inclusion of retail outlets with different brand names and unbranded, if possible.

(B) In the case of any retail outlet from which a sample of motor vehicle diesel fuel subject to the 15 ppm sulfur standard under §80.520(a)(1) was collected during a survey and determined to have a sulfur content that exceeds the 15 ppm sulfur standard under §80.520(a)(1), as adjusted under §80.580(d), that retail outlet shall be included in the subsequent survey.

(C) Only a single sample shall be collected at each retail outlet, except that where a retail outlet had a sample from the preceding survey with a test result that exceeds the 15 ppm standard under §80.520(a)(1), as adjusted under §80.580(d), separate samples shall be taken that represent the diesel fuel contained in each storage tank containing motor vehicle diesel fuel subject to the 15 ppm sulfur standard under §80.520(a)(1), unless collection of separate samples is not practicable (for example, due to diesel piping arrangements or pump outages).

(v) Number of samples.

(A) The minimum number of samples to be included in the survey plan for each calendar year shall be calculated as follows:

eCFR graphic er11my10.288.gif

View or download PDF

Where:

n = minimum number of samples in a year-long survey series. However, in no case shall n be larger than 9,600 or smaller than 1,800.

Zα = upper percentile point from the normal distribution to achieve a one-tailed 95% confidence level (5% α-level). Thus, Zα equals 1.645.

Zβ = upper percentile point to achieve 95% power. Thus, Zβ equals 1.645.

φl = the maximum proportion of stations selling non-compliant fuel for the fuel in a region to be deemed compliant. In this test, the parameter needs to be 5% or greater, i.e., 5% or more of the stations, within a stratum such that the region is considered non-compliant. For this survey, φl will be 5%.

φo = the underlying proportion of non-compliant stations in a sample. For calendar year 2011, φowill be 1.9%. For calendar years 2012 and beyond, φo will be the average of the proportion of stations to be non-compliant over the previous four surveys.

Stn = number of sampling strata. For purposes of this survey program, Stn equals 3.

Fa = adjustment factor for the number of extra samples required to compensate for collected samples that cannot be included in the survey, based on the number of additional samples required during the previous four surveys. However, in no case shall the value of Fa be smaller than 1.1. For purposes of this adjustment factor, a sample shall be treated as one that can be included in the survey only if the fuel was offered for sale as motor vehicle diesel fuel subject to the 15 ppm sulfur standard under §80.520(a)(1) at the retail outlet where the sample was collected and if an appropriate laboratory analysis of this fuel is conducted.

Fb = adjustment factor for the number of samples required to resample each retail outlet with test results greater than 17 ppm (resampling), based on the rate of resampling required during the previous four surveys. However, in no case shall the value of Fb be smaller than 1.1.

Sun = number of surveys per year. For purposes of this survey program, Sun equals 4.

(B) The number of samples obtained from the formula in paragraph (e)(4)(v)(A) of this section, after being incremented as necessary to allocate whole numbers of samples to each cluster, shall be distributed approximately equally for the surveys conducted during the calendar year. Within a survey, the samples shall be divided approximately equally for the three strata.

(5) Sulfur test result that is one or two ppm Greater than the 15 ppm standard under §80.520(a)(1), as adjusted under §80.580(d). The following provisions apply if the tested sulfur level of a diesel fuel sample collected by the independent survey association is one or two ppm greater than the 15 ppm standard under §80.520(a)(1), as adjusted under §80.580(d).

(i) Branded refiner or importer. Where the sample was collected at a retail outlet at which the brand name of a refiner or importer is displayed, the branded refiner or importer will be deemed to have established its defense under this section, provided that the refiner or importer participates in a consortium as described in paragraph (e)(1) of this section, and provided that the refiner or importer also demonstrates the following:

(A) The sulfur content of the diesel fuel at the terminal(s) that most recently supplied the retail outlet was no greater than 15 ppm prior to adjustment under §80.580(d) when dispensed for delivery to the retail outlet;

(B) Best efforts and accepted business practices are used by parties downstream from the refiner or importer to avoid diesel fuel contamination. These would include, for example, procedures for ensuring motor vehicle diesel fuel subject to the 15 ppm sulfur standard under §80.520(a)(1) is not contaminated in delivery trucks, and procedures for ensuring delivery truck drivers can identify retail outlet drop points for motor vehicle diesel fuel subject to the 15 ppm sulfur standard under §80.520(a)(1).

(C) Upon receiving the notification required under paragraph (e)(3)(iv)(A) of this section, any pumps supplied by the retail storage tank where the noncompliant diesel fuel was found were shutdown until such time that the fuel at issue was retested and the sulfur content of the fuel was found to be no greater than the 15 ppm standard under §80.520(a)(1), as adjusted under §80.580(d). Prior to May 31, 2010, as an alternative to shutting down pumps supplied by the retail storage tank where the noncompliant diesel fuel was found, such pumps may be relabeled with the language required under §80.571(b). The steps required in this paragraph (e)(5)(i)(C) must be taken as soon as practicable after receiving the notification required under paragraph (e)(3)(iv)(A) of this section, which normally will be within the same business day, but no longer than twenty-four hours after notification is received unless the refiner or importer demonstrates this timing is not possible.

(D) A root cause analysis is performed to determine the cause of the noncompliant diesel fuel and appropriate actions are taken to prevent future violations.

(E) The independent survey association samples and retests the diesel fuel at the retail outlet during its next survey, in addition to the scheduled sampling and testing under the approved survey program.

(F) The refiner or importer submits a report to EPA no later than 120 days following the date the sample was collected at the retail outlet, which includes the information specified in paragraph (e)(7) of this section.

(G) The refiner or importer supplies EPA with copies of the contracts with downstream parties specified in §80.613(b)(2) or the specifications or inspections of procedures and equipment described in §80.613(b)(3), as appropriate, which are designed to prevent the contamination of motor vehicle diesel fuel subject to the 15 ppm sulfur standard under §80.520(a)(1).

(ii) Unbranded refiner or importer. Any unbranded refiner or importer that is deemed liable under §80.612(a) for a violation of §80.610(a)(1), concerning diesel fuel that is sold, offered for sale, or dispensed at a retail outlet and that does not meet the applicable sulfur content standard under §80.520(a)(1), as adjusted under §80.580(d), will be deemed to have established its defense under this section if the unbranded refiner or importer is a member of the consortium described in paragraph (e)(1) of this section and the refiner or importer meets the requirements of paragraphs (e)(5)(i)(A) through (F) of this section.

(iii) Distributor or retailer. Any distributor (e.g., pipeline, terminal operator, marketer, truck carrier) or retailer that is deemed liable under §80.612(a) for a violation of §80.610(a)(1), concerning diesel fuel that is sold, offered for sale, or dispensed at a retail outlet and that does not meet the applicable sulfur content standard under §80.520(a)(1), as adjusted under §80.580(d), will be deemed to have established its defense under this section, provided that, within two years prior to the time the diesel fuel sample was collected by the independent survey association, the retail outlet had no instances where the tested sulfur level of a diesel fuel sample was greater than the 15 ppm standard under §80.520(a)(1), as adjusted under §80.580(d); and

(A) Where the retailer displays the brand name of a refiner or importer, the requirements in paragraphs (e)(5)(i) of this section are met by the branded refiner or importer; or

(B) Where the branded refiner or importer has elected not to participate in a consortium as described in paragraph (e)(1) of this section, or where the retailer does not display the brand name of a refiner or importer, the distributor or retailer is a member of the consortium described in paragraph (e)(1) of this section and the distributor or retailer meets the requirements in paragraphs (e)(5)(i)(A) through (F) of this section.

(C) If within two years prior to the time the diesel fuel sample was collected by the independent survey association, the retail outlet had an instance where the tested sulfur level of a diesel fuel sample was greater than the 15 ppm standard under §80.520(a)(1), as adjusted under §80.580(d), any distributor or retailer that is deemed liable for a violation under §80.612 will be deemed to have established its defense under this section if the party meets the requirements under paragraph (e)(5)(iii)(A) or (B) of this section (in lieu of the requirement in paragraph (a)(1)(iii) of this section), and the party meets the requirements under paragraphs (a)(1)(i), (a)(1)(ii), and (c) of this section.

(6) Sulfur test result that is three or more ppm Greater than the 15 ppm standard under §80.520(a)(1), as adjusted under §80.580(d). The following provisions apply if the tested sulfur level of a diesel fuel sample collected by the independent survey association is three or more ppm greater than the 15 ppm standard under §80.520(a)(1), as adjusted under §80.580(d):

(i) Branded refiner or importer. Any branded refiner or importer that is deemed liable under §80.612(a) for a violation of §80.610(a)(1), concerning diesel fuel that is sold, offered for sale, or dispensed at a retail outlet and that does not meet the applicable sulfur content standard under §80.520(a)(1), as adjusted under §80.580(d), will be deemed to have established its defense under this section if the refiner or importer meets the requirements under paragraph (e)(5)(i) of this section and meets the requirements under paragraphs (a)(1)(i), (a)(1)(ii), (b)(1), (b)(2), (b)(3), and (c) of this section.

(ii) Unbranded refiner or importer. Any unbranded refiner or importer that is deemed liable under §80.612(a) for a violation of §80.610(a)(1), concerning diesel fuel that is sold, offered for sale, or dispensed at a retail outlet and that does not meet the applicable sulfur content standard under §80.520(a)(1), as adjusted under §80.580(d), will be deemed to have established its defense under this section if the refiner or importer meets the requirements under paragraph (e)(5)(ii) of this section and meets the requirements under paragraphs (a)(1)(i), (a)(1)(ii), (a)(1)(iv), and (c) of this section.

(iii) Distributor or retailer. Any distributor or retailer that is deemed liable under §80.612(a) for a violation of §80.610(a)(1), concerning diesel fuel that is sold, offered for sale, or dispensed at a retail outlet and that does not meet the applicable sulfur content standard under §80.520(a)(1), as adjusted under §80.580(d), will be deemed to have established its defense under this section if the requirements under paragraph (e)(5)(iii)(A) or (B) of this section, as appropriate, are met, and the distributor or retailer meets the requirements under paragraphs (a)(1)(i), (a)(1)(ii), and (c) of this section. Distributors that blend a diesel fuel additive subject to the requirements of §80.521(b) into motor vehicle diesel fuel subject to the 15 ppm sulfur standard under §80.520(a) must also meet the requirement under paragraph (a)(1)(iv) of this section.

(7) Report regarding motor vehicle diesel fuel subject to the 15 ppm sulfur standard under §80.520(a)(1) with high sulfur content. The report that is required to be submitted to EPA under paragraph (e)(5)(i)(F) of this section shall contain the following information:

(i) The name, address and contact information for the regulated party submitting the report;

(ii) The name, address and contact information for the retail outlet where the high sulfur diesel fuel was found;

(iii) The brand name of the refiner or importer displayed at the retail outlet, if any;

(iv) The date of sampling, the analysis results, and the label that appeared on the pump where the sample was collected.

(v) For each of the most recent three deliveries (i.e., the three deliveries that immediately preceded the taking of the violating sample) of diesel fuel to the retail outlet storage tank at issue, or the most recent five deliveries if the cause of the violation is not demonstrated following analysis of the most recent three deliveries:

(A) A copy of the product transfer documents for the delivery;

(B) The name, address and contact information for the terminal and truck distributor that supplied the diesel fuel;

(C) The date of delivery and the volume of diesel fuel delivered;

(D) The designation of the diesel fuel on the product transfer document;

(E) The test results (or other evidence of the diesel sulfur content) for the diesel fuel in the terminal tank from which the delivery truck was loaded, and copies of the test result reports; and

(F) A description of the procedures used by the truck distributor to avoid diesel contamination (e.g., dedicated trucks).

(vi) A description of any actions taken to prevent sale of the noncompliant diesel fuel, including:

(A) The date and time the regulated party was notified of the high sulfur test result, the date and time the retailer was notified, and the date and time the sale of motor vehicle diesel fuel subject to the 15 ppm sulfur standard under §80.520(a)(1) was suspended;

(B) A description of the actions taken to prevent sale of the noncompliant diesel fuel; and

(C) The date and time that sales of motor vehicle diesel fuel subject to the 15 ppm sulfur standard under §80.520(a)(1) from the retail storage tank at issue were resumed, the results of the test used to establish the fuel met applicable standards, and a copy of the test result report.

(vii) A description of the root-cause analysis required in paragraph (e)(5)(i)(D) of this section, including:

(A) A description of the investigation conducted to determine the root-cause of the noncompliant diesel fuel, and the conclusions reached as a result of this investigation; and

(B) A description of the steps taken to prevent future problems from the identified cause.

(8) Summary survey reports. The quarterly and annual summary survey reports required under paragraph (e)(3)(v) of this section shall include the following information:

(i) The identification of each sampling area included in a survey and the dates that the samples were collected in that area;

(ii) For each retail outlet sampled:

(A) The identification of the retail outlet;

(B) The refiner or importer brand name displayed, if any;

(C) The pump labeling; and

(D) The sample test result.

(iii) Sulfur level summary statistics by brand and unbranded for each sampling area, strata, survey and annual survey series. These summary statistics shall:

(A) Include the number of samples, and the average, median and range of sulfur levels; and

(B) Be provided separately for the diesel fuel samples from pumps labeled as dispensing motor vehicle diesel fuel subject to the 15 ppm sulfur standard under §80.520(a)(1), motor vehicle diesel fuel subject to the 500 ppm sulfur standard under §80.520(c), and pumps that are not labeled.

(iv) The quarterly reports required under this paragraph (e)(8) are due sixty days following the end of the quarter. The annual reports required under this paragraph (e)(8) are due sixty days following the end of the calendar year.

(v) The reports required under this paragraph (e)(8) shall be submitted to EPA in both electronic spreadsheet and hard copy form.

(9) EPA inspections. If EPA inspects any facility and determines that the sulfur content of diesel fuel exceeds the 15 ppm standard under §80.520(a)(1), as adjusted under §80.580(d), liability for such sulfur content violation under §80.612 will be treated as provided in paragraph (e)(6) of this section for branded refiners or distributors that participate in the consortium under this paragraph (e). Any other party deemed liable for a violation under §80.612 must establish a defense under paragraphs (a) through (d) of this section, as applicable.

(10) Procedures for obtaining approval of survey plan. The procedure for obtaining EPA approval of a survey plan under this paragraph (e), and for revocation of such approval, is as follows:

(i) A survey plan that complies with the requirements of this paragraph (e) must be submitted to EPA no later than November 1 of the year preceding the calendar year in which the surveys will be conducted;

(ii) The survey plan must be signed by a responsible officer of the consortium which arranges to have an independent surveyor conduct the survey program;

(iii) The survey plan must be sent to the following address: Director, Compliance and Innovative Strategies Division, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW. Mail Code 6506J, Washington, DC 20460;

(iv) EPA will send a letter to the party submitting a survey plan under this section, either approving or disapproving the survey plan;

(v) EPA may revoke any approval of a survey plan under this section for cause, including an EPA determination that the approved survey plan has proved to be inadequate in practice or that it was not diligently implemented;

(vi) The approving official for a survey plan under this section is the Director of the Compliance and Innovative Strategies Division, Office of Transportation and Air Quality.

(vii) Any notifications or reports required to be submitted to EPA under this paragraph (e) must be directed to the official designated in paragraph (e)(10)(vi) of this section.

(11) Independent surveyor contract. (i) No later than December 1 of the year preceding the year in which the surveys will be conducted, the contract with the independent surveyor shall be in effect, and an amount of money necessary to carry out the entire survey plan shall be paid to the independent surveyor or placed into an escrow account with instructions to the escrow agent to pay the money to the independent surveyor during the course of the conduct of the survey plan.

(ii) No later than December 15 of the year preceding the year in which the surveys will be conducted, EPA must receive a copy of the contract with the independent surveyor, proof that the money necessary to carry out the survey plan has either been paid to the independent surveyor or placed into an escrow account, and, if placed into an escrow account, a copy of the escrow agreement, to be sent to the official designated in paragraph (e)(10)(vi) of this section.

(12) Failure to fulfill requirements. A failure to fulfill or cause to be fulfilled any of the requirements of this paragraph (e) will cause the option to use the alternative quality assurance requirement under this paragraph (e) to be void ab initio.

[66 FR 5136, Jan. 18, 2001, as amended at 69 FR 39204, June 29, 2004; 70 FR 40899, July 15, 2005; 75 FR 22977, Apr. 30, 2010; 75 FR 26127, May 11, 2010; 79 FR 42159, July 18, 2014]

§80.614   What are the alternative defense requirements in lieu of §80.613(a)(1)(vi)?

Any person who blends a MVNRLM diesel fuel additive package into MVNRLM diesel fuel subject to the 15 ppm sulfur standards of §80.510(b) or (c) or §80.520(a) which contains a static dissipater additive that has a sulfur content greater than 15 ppm but whose contribution to the sulfur content of the MVNRLM diesel fuel is less than 0.4 ppm at its maximum recommended concentration, and/or red dye that has a sulfur content greater than 15 ppm but whose contribution to the sulfur content of the MVNRLM diesel fuel is less than 0.04 ppm at its maximum recommended concentration, and which contains no other additives with a sulfur content greater than 15 ppm must establish all the following in order to use this section as an alternative to the defense element under §80.613(a)(1)(vi):

(a)(1) The blender of the additive package has a sulfur content test result for the MVNRLM diesel fuel prior to blending of the additive package that indicates that the additive package, when added, will not cause the MVNRLM diesel fuel sulfur content to exceed 15 ppm sulfur.

(2) In cases where the storage tank that contains MVNRLM diesel fuel prior to additization contains multiple fuel batches, the blender of the additive package must have sulfur test results on each batch of MVNRLM diesel fuel that was added to the storage tank during the current and previous volumetric accounting reconciliation (VAR) periods, which indicates that the additive package, when added to the component MVNRLM diesel fuel batch in the storage tank with the highest sulfur level would not cause that component batch to exceed 15 ppm sulfur.

(b) The VAR standard is attained as determined under the provisions of this section. The VAR reconciliation standard is attained when the actual concentration of the additive package used per the VAR formula record under paragraph (f) of this section is less than the concentration that would have caused any batch of MVNRLM diesel fuel to exceed a sulfur content of 15 ppm given the maximum sulfur test result on any MVNRLM diesel fuel batch described in paragraph (a) of this section that is additized with the additive package during the VAR period.

(c) The product transfer document complies with the applicable sulfur information requirements of §80.591.

(d) If more than one additive package containing a static dissipater additive and/or red dye is used during a VAR period, then a separate VAR formula record must be created for MVNRLM diesel fuel additized for each of the additive packages used. In such cases, the amount of the each additive package used must be accurately and separately measured, either through the use of a separate storage tank, a separate meter, or some other measurement system that is able to accurately distinguish its use.

(e) Recorded volumes of MVNRLM diesel fuel and the additive package must be expressed to the nearest gallon (or smaller units), except that additive package volumes of five gallons or less must be expressed to the nearest tenth of a gallon (or smaller units). However, if the blender's equipment cannot accurately measure to the nearest tenth of a gallon, then such volumes must be rounded upward to the next higher gallon for purposes of determining compliance with this section.

(f) Each VAR formula record must also contain the following information:

(1) Automated blending facilities. In the case of an automated additive package blending facility, for each VAR period, for each storage system for an additive package containing a static dissipater additive and/or red dye, and each additive package in that storage system, the following must be recorded:

(i)(A) The manufacturer and commercial identifying name of the package being reconciled, the maximum recommended treatment level, the potential contribution to the sulfur content of the finished fuel that might result when the additive package is used at its maximum recommended treatment level, the intended treatment level, and the contribution to the sulfur content of the finished fuel that would result when the additive package is used at its intended treatment level. The intended treatment level is the treatment level that the additive injection equipment is set to.

(B) The maximum recommended treatment level and the intended treatment level must be expressed in terms of gallons of the additive package per thousand gallons of MVNRLM diesel fuel, and expressed to four significant figures. If the additive package storage system which is the subject of the VAR formula record is a proprietary system under the control of a customer, this fact must be indicated on the record.

(ii) The total volume of the additive package blended into MVNRLM diesel fuel, in accordance with one of the following methods, as applicable.

(A) For a facility which uses in-line meters to measure usage, the total volume of additive package measured, together with supporting data which includes one of the following: the beginning and ending meter readings for each meter being measured, the metered batch volume measurements for each meter being measured, or other comparable metered measurements. The supporting data may be supplied on the VAR formula record or in the form of computer printouts or other comparable VAR supporting documentation.

(B) For a facility which uses a gauge to measure the inventory of the additive package storage tank, the total volume of additive package shall be calculated from the following equation:

Additive package volume = (A) − (B) + (C) − (D)

Where:

A = Initial additive package inventory of the tank

B = Final additive package inventory of the tank

C = Sum of any additions to additive package inventory

D = Sum of any withdrawals from additive package inventory for purposes other than the additization of MVNRLM diesel fuel.

(C) The value of each variable in the equation in paragraph (f)(1)(ii)(B) of this section must be separately recorded on the VAR formula record. In addition, a list of each additive package addition included in variable C and a list of each additive package withdrawal included in variable D must be provided, either on the formula record or as VAR supporting documentation.

(iii) The total volume of MVNRLM diesel fuel to which the additive package has been added, together with supporting data which includes one of the following: the beginning and ending meter measurements for each meter being measured, the metered batch volume measurements for each meter being measured, or other comparable metered measurements. The supporting data may be supplied on the VAR formula record or in the form of computer printouts or other comparable VAR supporting documentation.

(iv) The actual concentration of the additive package, calculated as the total volume of the additive package added (pursuant to paragraph (f)(1)(ii) of this section), divided by the total volume of MVNRLM diesel fuel (pursuant to paragraph (f)(1)(iii) of this section). The concentration must be calculated and recorded to 4 significant figures.

(v) A list of each additive package concentration rate set for the additive package that is the subject of the VAR record, together with the date and description of each adjustment to any initially set concentration. The concentration adjustment information may be supplied on the VAR formula record or in the form of computer printouts or other comparable VAR supporting documentation. No concentration setting is permitted above the maximum recommended concentration supplied by the additive manufacturer, except as described in paragraph (f)(1)(vii) of this section.

(vi) The dates of the VAR period, which shall be no longer than thirty-one days. If the VAR period is contemporaneous with a calendar month, then specifying the month will fulfill this requirement; if not, then the beginning and ending dates and times of the VAR period must be listed. The times may be supplied on the VAR formula record or in supporting documentation. Any adjustment to any additive package concentration rate initially set in the VAR period shall terminate that VAR period and initiate a new VAR period, except as provided in paragraph (f)(1)(vii) of this section.

(vii) The concentration setting for the additive package injector may be changed from the concentration initially set in the VAR period without terminating that VAR period, provided that:

(A) The purpose of the change is to correct a batch under-additization prior to the end of the VAR period and prior to the transfer of the batch to another party, or to correct an equipment malfunction where there has been no over-additization of the additive;

(B) The concentration is immediately returned after the correction to a concentration that fulfills the requirements of this paragraph (f);

(C) The blender creates and maintains documentation establishing the date and adjustments of the correction; and

(D) If the correction is initiated only to rectify an equipment malfunction, and the amount of additive package used in this procedure is not added to MVNRLM diesel fuel within the compliance period, then this amount is subtracted from the additive package volume listed on the VAR formula record. In such a case, the addition of this amount of additive must be reflected in the following VAR period.

(viii) The measured sulfur level for each batch of MVNRLM diesel fuel to which the additive package is added during each VAR period. In cases where the storage tank that contains MVNRLM diesel fuel prior to additization contains multiple fuel batches, a measured sulfur level on each batch added to the storage tank during the current and previous VAR periods must be recorded.

(2) Non-automated facilities. In the case of a facility in which hand blending or any other non-automated method is used to blend the additive packages, for each additive package and for each batch of MVNRLM diesel fuel to which the additive package is being added, the following shall be recorded:

(i) The manufacturer and commercial identifying name of the additive package being reconciled, the maximum recommended treatment level, the potential contribution to the sulfur content of the finished fuel that might result when the additive package is used at its maximum recommended treatment level, the intended treatment level, and the contribution to the sulfur content of the finished fuel that would result when the additive package is used at its intended treatment level.

(A) The maximum recommended treatment level and the intended treatment level must be expressed in terms of gallons of additive package per thousand gallons of MVNRLM diesel fuel, and expressed to four significant figures.

(B) If the additive package storage system which is the subject of the VAR formula record is a proprietary system under the control of a customer, this fact must be indicated on the record.

(ii) The date of the additization that is the subject of the VAR formula record.

(iii) The volume of added additive package.

(iv) The volume of the MVNRLM diesel fuel to which the additive package has been added.

(v) The brand (if known) of MVNRLM diesel fuel.

(vi) The actual additive package concentration, calculated as the volume of added additive package (pursuant to paragraph (f)(1)(ii)(B) of this section), divided by the volume of MVNRLM diesel fuel (pursuant to paragraph (f)(1)(iii) of this section). The concentration must be calculated and recorded to four significant figures.

(vii) The measured sulfur level for each batch of MVNRLM diesel fuel to which the additive package is added during each VAR period. In cases where the storage tanks that contains MVNRLM diesel fuel prior to additization contains multiple fuel batches, a measured sulfur level on each batch added to the storage tank during the current and previous VAR periods must be recorded.

(3) VAR formula records. Every VAR formula record created pursuant to paragraphs (f)(1) and (f)(2) of this section shall contain the following:

(i) The signature of the creator of the VAR record;

(ii) The date of the creation of the VAR record; and

(iii) A certification of correctness by the creator of the VAR record.

(4) Electronically-generated VAR formula and supporting records. (i) Electronically-generated records are acceptable for VAR formula records and supporting documentation (including PTDs), provided that they are complete, accessible, and easily readable. VAR formula records must also be stored with access and audit security, which must restrict to a limited number of specified people those who have the ability to alter or delete the records. In addition, parties maintaining records electronically must make available to EPA the hardware and software necessary to review the records.

(ii) Electronically-generated VAR formula records may use an electronic user identification code to satisfy the signature requirements of paragraph (f)(3)(i) of this section, provided that:

(A) The use of the identification is limited to the record creator; and

(B) A paper record is maintained, which is signed and dated by the VAR formula record creator, acknowledging that the use of that particular user ID on a VAR formula record is equivalent to his/her signature on the document.

(5) Calibration requirements for automated blending facilities. Automated static dissipater additive package blenders must calibrate their additive package equipment at least once in each calendar half year, with the acceptable calibrations being no less than one hundred twenty days apart, except that calibrations may be closer in time so long as at least two calibrations meet the requirements to be in separate halves of the calendar year and no less than 120 days apart. Equipment recalibration is also required each time the static dissipater additive package is changed, unless written documentation indicates that the new additive package has the same viscosity as the previous additive package. Additive package change calibrations may be used to satisfy the semiannual requirement provided that the calibrations occur in the appropriate half calendar year and are no less than one hundred twenty days apart.

(6) Additional VAR documentation. The following VAR supporting documentation must also be created and maintained:

(i) For all automated additive package blending facilities, documentation reflecting performance of the calibrations required by paragraph (f)(5) of this section, and any associated adjustments of the automated additive package injection equipment;

(ii) For all blending facilities that blend an additive package containing a static dissipater additive and/or red dye, product transfer documents for all such additive packages, and MVNRLM diesel fuel transferred into or out of the facility that is additized with an additive package containing a static dissipater additive and/or red dye;

(iii) For all automated additive package blending facilities that use an additive package containing a static dissipater additive and/or red dye, documentation establishing the brands (if known) of the MVNRLM diesel fuel which is the subject of the VAR formula record; and

(iv) For all hand blenders of an additive package that contains a static dissipater additive and/or red dye, the documentation, if in the party's possession, supporting the volumes of MVNRLM diesel fuel and additive package reported on the VAR formula record.

(7) Document retention and availability. All blenders of an additive package that contains a static dissipater additive and/or red dye shall retain the documents required under this section for a period of five years from the date the VAR formula records and supporting documentation are created, and shall deliver them upon request to the EPA Administrator or the Administrator's authorized representative.

(i) Except as provided in paragraph (f)(7)(iii) of this section, automated additive package blender facilities and hand-blender facilities which are terminals, which physically blend an additive packages that contains a static dissipater additive and/or red dye into MVNRLM diesel fuel, must make immediately available to EPA, upon request, the preceding twelve months of VAR formula records plus the preceding two months of VAR supporting documentation.

(ii) Except as provided in paragraph (f)(7)(iii) of this section, other hand-blending additive package facilities which physically blend additive package that contains a static dissipater additive and/or red dye into MVNRLM diesel fuel must make immediately available to EPA, upon request, the preceding two months of VAR formula records and VAR supporting documentation.

(iii) Facilities which have centrally maintained records at other locations, or have customers who maintain their own records at other locations for their proprietary additive package injection systems, and which can document this fact to the Agency, may have until the start of the next business day after the EPA request to supply VAR supporting documentation, or longer if approved by the Agency.

(iv) In this paragraph (f)(7), the term “immediately available” means that the records must be provided, electronically or otherwise, within approximately one hour of EPA's request, or within a longer time frame as approved by EPA.

[69 FR 39205, June 29, 2004, as amended at 71 FR 25723, May 1, 2006]

§80.615   What penalties apply under this subpart?

(a) Any person liable for a violation under §80.612 is subject to civil penalties as specified in section 205 of the Clean Air Act (42 U.S.C. 7524) 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 §80.612(a)(1) for a violation of an applicable standard or requirement under this Subpart I or for 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 diesel fuel remains any place in the distribution system.

(2) Any person liable under §80.612(a)(2) for causing motor vehicle diesel fuel, NRLM diesel fuel, ECA marine fuel, heating oil, or other distillate fuel to be in the distribution system which does not comply with an applicable standard or requirement of this subpart I, except as allowed under 40 CFR part 1043, is subject to a separate day of violation for each and every day that the noncomplying fuel remains any place in the diesel fuel distribution system.

(3) Any person liable under §80.612(a)(1) for blending into diesel fuel an additive violating the applicable sulfur standard pursuant to the requirements of §80.521(a) or (b), as applicable, or of causing another party to so blend such an additive, is subject to a separate day of violation for each and every day the motor vehicle diesel fuel or NRLM diesel fuel into which the noncomplying additive was blended, remains any place in the fuel distribution system.

(4) For purposes of this paragraph (b):

(i) The length of time the motor vehicle diesel fuel, NRLM diesel fuel, ECA marine fuel, heating oil, or other distillate fuel in question remained in the diesel fuel distribution system is deemed to be 25 days, except as further specified in paragraph (b)(4)(ii) of this section.

(ii) The length of time is deemed not to be 25 days if a person subject to liability demonstrates by reasonably specific showings, by direct or circumstantial evidence, that the non-complying motor vehicle, NR diesel fuel, NRLM diesel fuel, ECA marine fuel, heating oil, or distillate fuel remained in the distribution system for fewer than or more than 25 days.

(c) Any person liable under §80.612(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.

[69 FR 39208, June 29, 2004, as amended at 75 FR 22977, Apr. 30, 2010]

§80.616   What are the enforcement exemptions for California diesel distributed within the State of California?

(a) For the purpose of this section, “California diesel fuel” is defined as any diesel fuel physically within the State of California that satisfies all requirements of Title 13, California Code of Regulations, Sections 2281-2285, and is sold, intended for sale, or made available for sale as a motor fuel in the State of California, subsequent to May 31, 2006.

(b) Any retailer or wholesale purchaser-consumer of California diesel fuel is, with regard to such diesel fuel, exempt from the labeling requirements contained in §§80.570, 80.571, 80.572, 80.573, and 80.574.

(c)(1) Any refiner, importer, or distributor of California diesel fuel is, with regard to such diesel fuel, exempt from the product transfer requirements of §80.590, provided that the product transfer document contains the following statement:

“California diesel fuel. Maximum 15 ppm sulfur.”

(2) Product codes may be used to satisfy this product transfer document requirement.

(d) Any refiner, importer, or distributor of California diesel fuel is, with regard to such diesel fuel, exempt from the designation requirements of §80.598, provided that:

(1) The refiner, importer, or distributor does not transfer custody of the California diesel fuel to facility outside the State of California;

(2) The fuel is intended to be sold or made available for sale in the State of California; and

(3) The PTD requirements in paragraph (f) of the section are satisfied.

(e) Any refiner, importer, or distributor of California diesel fuel is, with regard to such diesel fuel, exempt from the volume balance requirements of §80.599.

(f) Any refiner, importer, or distributor of California diesel fuel is, with regard to such diesel fuel, exempt from the recordkeeping requirements under designate and track provisions of §80.600.

(g) Any refiner, importer, or distributor of California diesel fuel is, with regard to such diesel fuel, exempt from the reporting requirements for the purposes of the designate and track provisions of §80.601.

(h) Any refiner, importer, or distributor of California diesel fuel is, with regard to such diesel fuel, exempt from the recordkeeping requirements for entities in the MV or NRLM diesel fuel and diesel fuel additive production, importation, and distribution systems of §§80.592 and 80.602 except those relating to sampling and testing, under §§80.581, 80.584, 80.585, and 80.586.

(i) Any refiner or importer of California diesel fuel is, with regard to such diesel fuel, exempt from the annual reporting requirements for NRLM diesel under §80.604.

[71 FR 25725, May 1, 2006]

§80.617   How may California diesel fuel be distributed or sold outside of the State of California?

California diesel may be distributed or sold outside of the State of California provided the provisions of either paragraph (a) or (b) of this section are satisfied:

(a) Distribution of taxed or dyed California diesel fuel. California diesel fuel that is distributed from a truck loading terminal after such diesel has been taxed or dyed may be distributed or sold outside of the State of California, provided that it is accompanied by a Product Transfer Document that states: “California diesel fuel. Maximum 15 ppm sulfur.”; or

(b) Distribution of untaxed and undyed diesel California diesel fuel. California diesel may be distributed or sold outside of the State of California without having been dyed or taxed provided that the requirements of either paragraph (b)(1) or (b)(2) of this section are satisfied. (Note that the requirements of IRS code 26 CFR part 48 along with other applicable requirements outside of this 40 CFR part 80 subpart I must also be satisfied.)

(1)(i) Prior to shipment outside the State of California, the California diesel fuel meets all requirements of §80.616 and meets all of the requirements of 40 CFR part 80, subpart I that are not exempted under this section;

(ii) The California diesel fuel is shipped out of the state via pipeline;

(iii) The pipeline shipping the California diesel out of state maintains the California diesel fuel designation while the product is in the pipeline's custody;

(iv) The pipeline provides a product transfer document that clearly indicates that the product is designated as California diesel fuel;

(v) Upon delivery into the terminal, the terminal receiving the California diesel fuel redesignates it as motor vehicle diesel meeting the 15 ppm sulfur standard; and

(vi) The terminal includes the volumes of California diesel fuel redesignated as motor vehicle diesel fuel in the total volume of motor vehicle diesel designated meeting the 15 ppm sulfur standard received by the terminal, per the volume balance and anti-downgrading equations for motor vehicle diesel fuel found in §80.599(b) and (e).

(2)(i) The California diesel fuel is delivered via pipeline to a terminal outside the State of California that has a tank dedicated to the receipt of California diesel fuel and which intends to distribute the diesel fuel from the dedicated tank back into the State of California;

(ii) The terminal must maintain the designation of the diesel fuel as “California diesel fuel” and not redesignate it to another product;

(iii) The product transfer documents for California diesel fuel distributed by a terminal outside of the state of California must indicate “California diesel fuel. Maximum 15 ppm sulfur.”; and,

(iv) Any volume of California diesel fuel distributed by a terminal outside the state of California must be taxed or dyed and must be excluded from the terminal's volume balance equations under §80.599.

[71 FR 25726, May 1, 2006]

§§80.618-80.619   [Reserved]

Provisions for Foreign Refiners and Importers for Motor Vehicle Diesel Fuel Subject to a Temporary Compliance Option or Hardship Provision

§80.620   What are the additional requirements for diesel fuel or distillates produced by foreign refineries subject to a temporary refiner compliance option, hardship provisions, or motor vehicle or NRLM diesel fuel credit provisions?

(a) Definitions. (1) A foreign refinery is a refinery that is located outside the United States, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands (collectively referred to in this section as “the United States”).

(2) A foreign refiner is a person who meets the definition of refiner under §80.2(i) for a foreign refinery.

(3) A diesel fuel program foreign refiner (“DFR”) is a foreign refiner that has been approved by EPA for participation in any motor vehicle diesel fuel or NRLM diesel fuel provision of §80.530 through 80.533, or §§80.535, 80.536, 80.540, 80.552, 80.553, 80.554, 80.560 or 80.561 (collectively referred to as “diesel foreign refiner program”).

(4) “DFR-Diesel” means diesel fuel or distillate fuel as applicable under subpart I of this part produced at a DFR refinery that is imported into the United States.

(5) “Non-DFR-Diesel” means diesel fuel or distillate fuel that is produced at a foreign refinery that has not been approved as a DFR foreign refiner, diesel fuel produced at a DFR foreign refinery that is not imported into the United States, and diesel fuel produced at a DFR foreign refinery during a period when the foreign refiner has opted to not participate in the DFR-Diesel foreign refiner program under paragraph (c)(3) of this section.

(6) “Certified DFR-Diesel” means DFR-Diesel the foreign refiner intends to include in the foreign refinery's compliance calculations under any provisions of §80.530 through 80.533, or §§80.535, 80.536, 80.540, 80.552, 80.553, 80.554, 80.560 or 80.561 and does include in these compliance calculations when reported to EPA.

(7) “Non-Certified DFR-Diesel” means DFR-Diesel fuel that a DFR foreign refiner imports to the United States that is not Certified DFR-Diesel.

(b) Baseline. For any foreign refiner to obtain approval under the diesel foreign refiner program of this subpart for any refinery, it must apply for approval under the applicable provisions of this subpart. To obtain approval the refiner is required, as applicable, to demonstrate a volume baseline under subpart I of this part.

(1) The refiner shall follow the procedures, applicable to volume baselines and using diesel fuel, or if applicable, heating oil, instead of gasoline, in §§80.91 through 80.93 to establish the volume of motor vehicle diesel fuel that was produced at the refinery and imported into the United States during the applicable years for purposes of establishing a baseline under Subpart I for applicable fuels produced for use in the United States.

(2) In making determinations for foreign refinery baselines EPA will consider all information supplied by a foreign refiner, and in addition may rely on any and all appropriate assumptions necessary to make such determinations.

(3) Where a foreign refiner submits a petition that is incomplete or inadequate to establish an accurate baseline, and the refiner fails to correct this deficiency after a request for more information, EPA will not assign an individual refinery baseline.

(c) General requirements for DFR foreign refiners. A foreign refiner of a refinery that is approved under the diesel foreign refiner program of this subpart must designate each batch of diesel fuel produced at the foreign refinery that is exported to the United States as either Certified DFR-Diesel or as Non-Certified DFR-Diesel, except as provided in paragraph (c)(3) of this section. It must further designate all Certified DFR-Diesel as provided in §80.598, and designate whether the diesel fuel is dyed or undyed, and for heating oil and/or locomotive or marine diesel fuel whether it is marked or unmarked under §80.510(d) through (f). It must further designate any credits earned as either nonroad diesel credits or motor vehicle diesel credits.

(1) In the case of Certified DFR-Diesel, the foreign refiner must meet all requirements that apply to refiners under this subpart, except that:

(i) For purposes of complying with the compliance option requirements of §80.530, motor vehicle diesel fuel produced by a foreign refinery must comply separately for each Credit Trading Area of import, as defined in §80.531(a)(5).

(ii) For purposes of complying with the compliance option requirements of §80.530, credits obtained from any other refinery or from any importer must have been generated in the same Credit Trading Area as the Credit Trading Area of import of the fuel for which credits are needed to achieve compliance.

(iii) For purposes of generating credits under §80.531, credits shall be generated separately by Credit Trading Area of import and shall be designated by Credit Trading Area of importation and by port of importation.

(2) In the case of Non-Certified DFR-Diesel, the foreign refiner shall meet all the following requirements:

(i) The designation requirements in this section.

(ii) The reporting requirements in this section and in §§80.593, 80.594, 80.601, and 80.604.

(iii) The product transfer document requirements in this section and in §§80.590 and 80.591.

(iv) The prohibitions in this section and in §80.610.

(3)(i) Any foreign refiner that has been approved to produce diesel fuel subject to the diesel foreign refiner program for a foreign refinery under this subpart may elect to classify no diesel fuel imported into the United States as DFR-Diesel provided the foreign refiner notifies EPA of the election no later than 60 calendar days prior to the beginning of the compliance period.

(ii) An election under paragraph (c)(3)(i) of this section shall be for a 12 month compliance period and apply to all diesel fuel that is produced by the foreign refinery that is imported into the United States, and shall remain in effect for each succeeding year unless and until the foreign refiner notifies EPA of the termination of the election. The change in election shall take effect at the beginning of the next annual compliance period.

(d) Designation, product transfer documents, and foreign refiner certification. (1) Any foreign refiner of a foreign refinery that has been approved by EPA to produce motor vehicle diesel fuel subject to the diesel foreign refiner program must designate each batch of DFR-Diesel as such at the time the diesel fuel is produced, unless the refiner has elected to classify no diesel fuel exported to the United States as DFR-Diesel under paragraph (c)(3) of this section.

(2) On each occasion when any person transfers custody or title to any DFR-Diesel prior to its being imported into the United States, it must include the following information as part of the product transfer document information in this section:

(i) Designation of the diesel fuel or distillate as Certified DFR-Diesel or as Non-Certified DFR-Diesel, and if it is Certified DFR-Diesel, further designate the fuel pursuant to §80.598, and whether the diesel fuel or distillate is dyed or undyed, and for heating oil whether it is marked or unmarked under §80.510(d) through (f), and all other applicable product transfer document information required under §80.590; and

(ii) The name and EPA refinery registration number (under §80.597) of the refinery where the DFR-Diesel was produced.

(3) On each occasion when DFR-Diesel is loaded onto a vessel or other transportation mode for transport to the United States, the foreign refiner shall prepare a certification for each batch of the DFR-Diesel that meets the following requirements.

(i) The certification shall include the report of the independent third party under paragraph (f) of this section, and the following additional information:

(A) The name and EPA registration number of the refinery that produced the DFR-Diesel;

(B) The identification of the diesel fuel as Certified DFR-Diesel or Non-Certified DFR-Diesel;

(C) The volume of DFR-Diesel being transported, in gallons;

(D) In the case of Certified DFR-Diesel:

(1) The sulfur content as determined under paragraph (f) of this section, and the applicable designations stated in paragraph (d)(2)(i) of this section; and

(2) A declaration that the DFR-Diesel is being included in the applicable compliance calculations required by EPA under this subpart.

(ii) The certification shall be made part of the product transfer documents for the DFR-Diesel.

(e) Transfers of DFR-Diesel to non-United States markets. The foreign refiner is responsible to ensure that all diesel fuel classified as DFR-Diesel is imported into the United States. A foreign refiner may remove the DFR-Diesel classification, and the diesel fuel need not be imported into the United States, but only if:

(1)(i) The foreign refiner excludes:

(A) The volume of diesel from the refinery's compliance report under §80.593, §80.601, or §80.604; and

(B) In the case of Certified DFR-Diesel, the volume of the diesel fuel from the compliance report under §80.593, §80.601, or §80.604.

(ii) The exclusions under paragraph (e)(1)(i) of this section shall be on the basis of the designations under §80.598 and this section, and volumes determined under paragraph (f) of this section.

(2) The foreign refiner obtains sufficient evidence in the form of documentation that the diesel fuel was not imported into the United States.

(f) Load port independent sampling, testing and refinery identification. (1) On each occasion that DFR-Diesel is loaded onto a vessel for transport to the United States a foreign refiner shall have an independent third party:

(i) Inspect the vessel prior to loading and determine the volume of any tank bottoms;

(ii) Determine the volume of DFR-Diesel loaded onto the vessel (exclusive of any tank bottoms before loading);

(iii) Obtain the EPA-assigned registration number of the foreign refinery;

(iv) Determine the name and country of registration of the vessel used to transport the DFR-Diesel to the United States; and

(v) Determine the date and time the vessel departs the port serving the foreign refinery.

(2) On each occasion that Certified DFR-Diesel is loaded onto a vessel for transport to the United States a foreign refiner shall have an independent third party:

(i) Collect a representative sample of the Certified DFR-Diesel from each vessel compartment subsequent to loading on the vessel and prior to departure of the vessel from the port serving the foreign refinery;

(ii) Determine the sulfur content value for each compartment, and if applicable, the marker content under §80.510(d) through (f) using an approved methodology as specified in §§80.580 through 80.586 by one of the following:

(A) The third party analyzing each sample; or

(B) The third party observing the foreign refiner analyze the sample;

(iii) Review original documents that reflect movement and storage of the certified DFR-Diesel from the refinery to the load port, and from this review determine:

(A) The refinery at which the DFR-Diesel was produced; and

(B) That the DFR-Diesel remained segregated from:

(1) Non-DFR-Diesel and Non-Certified DFR-Diesel; and

(2) Other Certified DFR-Diesel produced at a different refinery.

(3) The independent third party shall submit a report:

(i) To the foreign refiner containing the information required under paragraphs (f)(1) and (f)(2) of this section, to accompany the product transfer documents for the vessel; and

(ii) To the Administrator containing the information required under paragraphs (f)(1) and (f)(2) of this section, within thirty days following the date of the independent third party's inspection. This report shall include a description of the method used to determine the identity of the refinery at which the diesel fuel or distillate was produced, assurance that the diesel fuel or distillate remained segregated as specified in paragraph (n)(1) of this section, and a description of the diesel fuel's movement and storage between production at the source refinery and vessel loading.

(4) The independent third party must:

(i) Be approved in advance by EPA, based on a demonstration of ability to perform the procedures required in this paragraph (f);

(ii) Be independent under the criteria specified in §80.65(e)(2)(iii); and

(iii) Sign a commitment that contains the provisions specified in paragraph (i) of this section with regard to activities, facilities and documents relevant to compliance with the requirements of this paragraph (f).

(g) Comparison of load port and port of entry testing. (1)(i) Any foreign refiner and any United States importer of Certified DFR-Diesel shall compare the results from the load port testing under paragraph (f) of this section, with the port of entry testing as reported under paragraph (o) of this section, for the volume of diesel fuel and the sulfur content value; except as specified in paragraph (g)(1)(ii) of this section.

(ii) Where a vessel transporting Certified DFR-Diesel off loads this diesel fuel at more than one United States port of entry, and the conditions of paragraph (g)(2)(i) of this section are met at the first United States port of entry, the requirements of paragraph (g)(2) of this section do not apply at subsequent ports of entry if the United States importer obtains a certification from the vessel owner that meets the requirements of paragraph (s) of this section, that the vessel has not loaded any diesel fuel or blendstock between the first United States port of entry and the subsequent port of entry.

(2)(i) The requirements of this paragraph (g)(2) apply if—

(A) The temperature-corrected volumes determined at the port of entry and at the load port differ by more than one percent; or

(B) The sulfur content value determined at the port of entry is higher than the sulfur content value determined at the load port, and the amount of this difference is greater than the reproducibility amount specified for the port of entry test result by the American Society of Testing and Materials (ASTM) for a test method used for testing the port of entry sample under the provisions §§80.580 through 80.586.

(ii) The United States importer and the foreign refiner shall treat the diesel fuel as Non-Certified DFR-Diesel, and the foreign refiner shall exclude the diesel fuel volume from its diesel fuel volumes calculations and sulfur standard designations under §80.598.

(h) Attest requirements. Refiners, for each annual compliance period, must arrange to have an attest engagement performed of the underlying documentation that forms the basis of any report required under this subpart. The attest engagement must comply with the procedures and requirements that apply to refiners under §§80.125 through 80.130, or other applicable attest engagement provisions, and must be submitted to the Administrator of EPA by August 31 of each year for the prior annual compliance period. The following additional procedures shall be carried out for any foreign refiner of DFR-Diesel.

(1) The inventory reconciliation analysis under §80.128(b) and the tender analysis under §80.128(c) shall include Non-DFR-Diesel.

(2) Obtain separate listings of all tenders of Certified DFR-Diesel and of Non-Certified DFR-Diesel, and obtain separate listings of Certified DFR-Diesel based on whether it is 15 ppm sulfur content diesel fuel, 500 ppm sulfur content diesel fuel or high sulfur fuel having a sulfur content greater than 500 ppm (and if so, whether the fuel is heating oil, small refiner diesel fuel, diesel fuel produced through the use of credits, or other applicable designation under §80.598). Agree the total volume of tenders from the listings to the diesel fuel inventory reconciliation analysis in §80.128(b), and to the volumes determined by the third party under paragraph (f)(1) of this section.

(3) For each tender under paragraph (h)(2) of this section, where the diesel fuel is loaded onto a marine vessel, report as a finding the name and country of registration of each vessel, and the volumes of DFR-Diesel loaded onto each vessel.

(4) Select a sample from the list of vessels identified in paragraph (h)(3) of this section used to transport Certified DFR-Diesel, in accordance with the guidelines in §80.127, and for each vessel selected perform the following:

(i) Obtain the report of the independent third party, under paragraph (f) of this section, and of the United States importer under paragraph (o) of this section.

(A) Agree the information in these reports with regard to vessel identification, diesel fuel volumes and sulfur content test results.

(B) Identify, and report as a finding, each occasion the load port and port of entry sulfur content and volume results differ by more than the amounts allowed in paragraph (g) of this section, and determine whether the foreign refiner adjusted its refinery calculations as required in paragraph (g) of this section.

(ii) Obtain the documents used by the independent third party to determine transportation and storage of the Certified DFR-Diesel from the refinery to the load port, under paragraph (f) of this section. Obtain tank activity records for any storage tank where the Certified DFR-Diesel is stored, and pipeline activity records for any pipeline used to transport the Certified DFR-Diesel, prior to being loaded onto the vessel. Use these records to determine whether the Certified DFR-Diesel was produced at the refinery that is the subject of the attest engagement, and whether the Certified DFR-Diesel was mixed with any Non-Certified DFR-Diesel, Non-DFR-Diesel, or any Certified DFR-Diesel produced at a different refinery.

(5) Select a sample from the list of vessels identified in paragraph (h)(3) of this section used to transport certified and Non-Certified DFR-Diesel, in accordance with the guidelines in §80.127, and for each vessel selected perform the following:

(i) Obtain a commercial document of general circulation that lists vessel arrivals and departures, and that includes the port and date of departure of the vessel, and the port of entry and date of arrival of the vessel.

(ii) Agree the vessel's departure and arrival locations and dates from the independent third party and United States importer reports to the information contained in the commercial document.

(6) Obtain separate listings of all tenders of Non-DFR-Diesel, and perform the following:

(i) Agree the total volume and sulfur content of tenders from the listings to the diesel fuel inventory reconciliation analysis in §80.128(b).

(ii) Obtain a separate listing of the tenders under this paragraph (h)(6) where the diesel fuel is loaded onto a marine vessel. Select a sample from this listing in accordance with the guidelines in §80.127, and obtain a commercial document of general circulation that lists vessel arrivals and departures, and that includes the port and date of departure and the ports and dates where the diesel fuel was off loaded for the selected vessels. Determine and report as a finding the country where the diesel fuel was off loaded for each vessel selected.

(7) In order to complete the requirements of this paragraph (h) an auditor shall:

(i) Be independent of the foreign refiner;

(ii) Be licensed as a Certified Public Accountant in the United States and a citizen of the United States, or be approved in advance by EPA based on a demonstration of ability to perform the procedures required in §§80.125 through 80.130 and this paragraph (h); and

(iii) Sign a commitment that contains the provisions specified in paragraph (i) of this section with regard to activities and documents relevant to compliance with the requirements of §§80.125 through 80.130 and this paragraph (h).

(i) Foreign refiner commitments. Any foreign refiner shall commit to and comply with the provisions contained in this paragraph (i) as a condition to being approved for a temporary refiner diesel fuel program option.

(1) Any United States Environmental Protection Agency inspector or auditor must be given full, complete and immediate access to conduct inspections and audits of the foreign refinery.

(i) Inspections and audits may be either announced in advance by EPA, or unannounced.

(ii) Access will be provided to any location where:

(A) Diesel fuel is produced;

(B) Documents related to refinery operations are kept;

(C) Diesel fuel or blendstock samples are tested or stored; and

(D) DFR-Diesel is stored or transported between the foreign refinery and the United States, including storage tanks, vessels and pipelines.

(iii) Inspections and audits may be by EPA employees or contractors to EPA.

(iv) Any documents requested that are related to matters covered by inspections and audits must be provided to an EPA inspector or auditor on request.

(v) Inspections and audits by EPA may include review and copying of any documents related to:

(A) Refinery baseline establishment, if applicable, including the volume, sulfur content and dye and marker status of diesel fuel, heating oil and other distillates; transfers of title or custody of any diesel fuel, heating oil or blendstocks whether DFR-Diesel or Non-DFR-Diesel, produced at the foreign refinery during the period January 1, 1998 through the date of the refinery baseline petition or through the date of the inspection or audit if a baseline petition has not been approved, and any work papers related to refinery baseline establishment;

(B) The volume and sulfur content of DFR-Diesel;

(C) The proper classification of diesel fuel as being DFR-Diesel or as not being DFR-Diesel, or as Certified DFR-Diesel or as Non-Certified DFR-Diesel, and all other relevant designations under this subpart, including §80.598 and this section;

(D) Transfers of title or custody to DFR-Diesel;

(E) Sampling and testing of DFR-Diesel;

(F) Work performed and reports prepared by independent third parties and by independent auditors under the requirements of this section, including work papers; and

(G) Reports prepared for submission to EPA, and any work papers related to such reports.

(vi) Inspections and audits by EPA may include taking samples of diesel fuel, heating oil, other distillates, diesel fuel additives or blendstock, dyes and chemical markers and interviewing employees.

(vii) Any employee of the foreign refiner must be made available for interview by the EPA inspector or auditor, on request, within a reasonable time period.

(viii) English language translations of any documents must be provided to an EPA inspector or auditor, on request, within 10 working days.

(ix) English language interpreters must be provided to accompany EPA inspectors and auditors, on request.

(2) An agent for service of process located in the District of Columbia shall be named, and service on this agent constitutes service on the foreign refiner or any employee of the foreign refiner for any action by EPA or otherwise by the United States related to the requirements of this subpart.

(3) The forum for any civil or criminal enforcement action related to the provisions of this section for violations of the Clean Air Act or regulations promulgated thereunder shall be governed by the Clean Air Act, including the EPA administrative forum where allowed under the Clean Air Act.

(4) United States substantive and procedural laws shall apply to any civil or criminal enforcement action against the foreign refiner or any employee of the foreign refiner related to the provisions of this section.

(5) Submitting a petition for participation in the diesel foreign refiner program or producing and exporting diesel fuel or heating oil under any such program, and all other actions to comply with the requirements of this subpart relating to participation in any diesel foreign refiner program, or to establish an individual refinery motor vehicle diesel fuel volume baseline or other baseline under subpart I of this part (if applicable) constitute actions or activities that satisfy the provisions of 28 U.S.C. 1605(a)(2), but solely with respect to actions instituted against the foreign refiner, its agents and employees in any court or other tribunal in the United States for conduct that violates the requirements applicable to the foreign refiner under this subpart, including conduct that violates the False Statements Accountability Act of 1996 (18 U.S.C. 1001) and section 113(c)(2) of the Clean Air Act (42 U.S.C. 7413).

(6) The foreign refiner, or its agents or employees, will not seek to detain or to impose civil or criminal remedies against EPA inspectors or auditors, whether EPA employees or EPA contractors, for actions performed within the scope of EPA employment related to the provisions of this section.

(7) The commitment required by this paragraph (i) shall be signed by the owner or president of the foreign refiner business.

(8) In any case where DFR-Diesel produced at a foreign refinery is stored or transported by another company between the refinery and the vessel that transports the DFR-Diesel to the United States, the foreign refiner shall obtain from each such other company a commitment that meets the requirements specified in paragraphs (i)(1) through (7) of this section, and these commitments shall be included in the foreign refiner's petition to participate in any diesel foreign refiner program .

(j) Sovereign immunity. By submitting a petition for participation in any diesel foreign refiner program under this subpart (and baseline, if applicable) under this section, or by producing and exporting diesel fuel to the United States under any such program, the foreign refiner, and its agents and employees, without exception, become subject to the full operation of the administrative and judicial enforcement powers and provisions of the United States without limitation based on sovereign immunity, with respect to actions instituted against the foreign refiner, its agents and employees in any court or other tribunal in the United States for conduct that violates the requirements applicable to the foreign refiner under this subpart including conduct that violates the False Statements Accountability Act of 1996 (18 U.S.C. 1001) and section 113(c)(2) of the Clean Air Act (42 U.S.C. 7413).

(k) Bond posting. Any foreign refiner shall meet the requirements of this paragraph (k) as a condition to approval for any diesel foreign refiner program under this subpart.

(1) The foreign refiner shall post a bond of the amount calculated using the following equation:

Bond = G × $ 0.01

Where:

Bond = amount of the bond in U.S. dollars

G = the applicable volume baseline under Subpart I for diesel fuel or distillate produced at the foreign refinery and exported to the United States, in gallons.

(2) Bonds shall be posted by:

(i) Paying the amount of the bond to the Treasurer of the United States;

(ii) Obtaining a bond in the proper amount from a third party surety agent that is payable to satisfy United States administrative or judicial judgments against the foreign refiner, provided EPA agrees in advance as to the third party and the nature of the surety agreement; or

(iii) An alternative commitment that results in assets of an appropriate liquidity and value being readily available to the United States, provided EPA agrees in advance as to the alternative commitment.

(3) Bonds posted under this paragraph (k) shall—

(i) Be used to satisfy any judicial judgment that results from an administrative or judicial enforcement action for conduct in violation of this subpart, including where such conduct violates the False Statements Accountability Act of 1996 (18 U.S.C. 1001) and section 113(c)(2) of the Clean Air Act (42 U.S.C. 7413);

(ii) Be provided by a corporate surety that is listed in the United States Department of Treasury Circular 570 “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds;” and

(iii) Include a commitment that the bond will remain in effect for at least five years following the end of latest annual reporting period that the foreign refiner produces diesel fuel pursuant to the requirements of this subpart.

(4) On any occasion a foreign refiner bond is used to satisfy any judgment, the foreign refiner shall increase the bond to cover the amount used within 90 days of the date the bond is used.

(5) If the bond amount for a foreign refiner increases, the foreign refiner shall increase the bond to cover the shortfall within 90 days of the date the bond amount changes. If the bond amount decreases, the foreign refiner may reduce the amount of the bond beginning 90 days after the date the bond amount changes.

(l) [Reserved]

(m) English language reports. Any report or other document submitted to EPA by a foreign refiner shall be in English language, or shall include an English language translation.

(n) Prohibitions. (1) No person may combine Certified DFR-Diesel with any Non-Certified DFR-Diesel or Non-DFR-Diesel, and no person may combine Certified DFR-Diesel with any Certified DFR-Diesel produced at a different refinery, until the importer has met all the requirements of paragraph (o) of this section, except as provided in paragraph (e) of this section. No person may violate the product segregation requirements of §80.511.

(2) No foreign refiner or other person may cause another person to commit an action prohibited in paragraph (n)(1) of this section, or that otherwise violates the requirements of this section.

(o) United States importer requirements. Any United States importer shall meet the following requirements:

(1) Each batch of imported diesel fuel and heating oil shall be classified by the importer as being DFR-Diesel or as Non-DFR-Diesel, and each batch classified as DFR-Diesel shall be further classified as Certified DFR-Diesel or as Non-Certified DFR-Diesel, and each batch of Certified DFR-Diesel shall be further designated pursuant to the designation requirements of §80.598 and this section.

(2) Diesel fuel shall be classified as Certified DFR-Diesel or as Non-Certified DFR-Diesel according to the designation by the foreign refiner if this designation is supported by product transfer documents prepared by the foreign refiner as required in paragraph (d) of this section, unless the diesel fuel is classified as Non-Certified DFR-Diesel under paragraph (g) of this section. Additionally, the importer shall comply with all requirements of this subpart applicable to importers.

(3) For each diesel fuel batch classified as DFR-Diesel, any United States importer shall perform the following procedures.

(i) In the case of both Certified and Non-Certified DFR-Diesel, have an independent third party:

(A) Determine the volume of diesel fuel in the vessel;

(B) Use the foreign refiner's DFR-Diesel certification to determine the name and EPA-assigned registration number of the foreign refinery that produced the DFR-Diesel;

(C) Determine the name and country of registration of the vessel used to transport the DFR-Diesel to the United States; and

(D) Determine the date and time the vessel arrives at the United States port of entry.

(ii) In the case of Certified DFR-Diesel, have an independent third party:

(A) Collect a representative sample from each vessel compartment subsequent to the vessel's arrival at the United States port of entry and prior to off loading any diesel fuel from the vessel;

(B) Obtain the compartment samples; and

(C) Determine the sulfur content value, and if applicable, the marker content, of each compartment sample using an appropriate methodology as specified in §§80.580 through 80.586 by the third party analyzing the sample or by the third party observing the importer analyze the sample.

(4) Any importer shall submit reports within 30 days following the date any vessel transporting DFR-Diesel arrives at the United States port of entry:

(i) To the Administrator containing the information determined under paragraph (o)(3) of this section; and

(ii) To the foreign refiner containing the information determined under paragraph (o)(3)(ii) of this section, and including identification of the port and Credit Trading Area at which the product was offloaded.

(5) Any United States importer shall meet the requirements specified in §§80.510 and 80.520 and all other requirements of this subpart, for any imported diesel fuel or heating oil that is not classified as Certified DFR-Diesel under paragraph (o)(2) of this section.

(p) Truck imports of Certified DFR-Diesel produced at a foreign refinery. (1) Any refiner whose Certified DFR-Diesel is transported into the United States by truck may petition EPA to use alternative procedures to meet the following requirements:

(i) Certification under paragraph (d)(5) of this section;

(ii) Load port and port of entry sampling and testing under paragraphs (f) and (g) of this section;

(iii) Attest under paragraph (h) of this section; and

(iv) Importer testing under paragraph (o)(3) of this section.

(2) These alternative procedures must ensure Certified DFR-Diesel remains segregated from Non-Certified DFR-Diesel and from Non-DFR-Diesel until it is imported into the United States. The petition will be evaluated based on whether it adequately addresses the following:

(i) Provisions for monitoring pipeline shipments, if applicable, from the refinery, that ensure segregation of Certified DFR-Diesel from that refinery from all other diesel fuel;

(ii) Contracts with any terminals and/or pipelines that receive and/or transport Certified DFR-Diesel, that prohibit the commingling of Certified DFR-Diesel with any of the following:

(A) Other Certified DFR-Diesel from other refineries.

(B) All Non-Certified DFR-Diesel.

(C) All Non-DFR-Diesel.

(D) All diesel fuel or heating oil products required to be segregated under this subpart;

(iii) Procedures for obtaining and reviewing truck loading records and United States import documents for Certified DFR-Diesel to ensure that such diesel fuel is only loaded into trucks making deliveries to the United States;

(iv) Attest procedures to be conducted annually by an independent third party that review loading records and import documents based on volume reconciliation, or other criteria, to confirm that all Certified DFR-Diesel remains segregated throughout the distribution system and is only loaded into trucks for import into the United States.

(3) The petition required by this section must be submitted to EPA along with the application for temporary refiner relief individual refinery diesel sulfur standard under this subpart.

(q) Withdrawal or suspension of a foreign refinery's temporary refinery flexibility program approval. EPA may withdraw or suspend a diesel refiner baseline or standard approval for a foreign refinery where—

(1) A foreign refiner fails to meet any requirement of this section;

(2) A foreign government fails to allow EPA inspections as provided in paragraph (i)(1) of this section;

(3) A foreign refiner asserts a claim of, or a right to claim, sovereign immunity in an action to enforce the requirements in this subpart; or

(4) A foreign refiner fails to pay a civil or criminal penalty that is not satisfied using the foreign refiner bond specified in paragraph (k) of this section.

(r) Early use of a foreign refiner motor vehicle diesel fuel baseline. (1) A foreign refiner may begin using an individual refinery baseline under subpart I of this part before EPA has approved the baseline, provided that:

(i) A baseline petition has been submitted as required in paragraph (b) of this section;

(ii) EPA has made a provisional finding that the baseline petition is complete;

(iii) The foreign refiner has made the commitments required in paragraph (i) of this section;

(iv) The persons who will meet the independent third party and independent attest requirements for the foreign refinery have made the commitments required in paragraphs (f)(3)(iii) and (h)(7)(iii) of this section; and

(v) The foreign refiner has met the bond requirements of paragraph (k) of this section.

(2) In any case where a foreign refiner uses an individual refinery baseline before final approval under paragraph (r)(1) of this section, and the foreign refinery baseline values that ultimately are approved by EPA are more stringent than the early baseline values used by the foreign refiner, the foreign refiner shall recalculate its compliance, ab initio, using the baseline values approved by the EPA, and the foreign refiner shall be liable for any resulting violation of the motor vehicle highway diesel fuel requirements.

(s) Additional requirements for petitions, reports and certificates. Any petition for approval to produce diesel fuel subject to the diesel foreign refiner program, any alternative procedures under paragraph (p) of this section, any report or other submission required by paragraph (c), (f)(2), or (i) of this section, and any certification under paragraph (d)(3) of this section shall be—

(1) Submitted in accordance with procedures specified by the Administrator, including use of any forms that may be specified by the Administrator.

(2) Be signed by the president or owner of the foreign refiner company, or by that person's immediate designee, and shall contain the following declaration:

I hereby certify: (1) That I have actual authority to sign on behalf of and to bind [insert name of foreign refiner] with regard to all statements contained herein; (2) that I am aware that the information contained herein is being certified, or submitted to the United States Environmental Protection Agency, under the requirements of 40 CFR part 80, subpart I, and that the information is material for determining compliance under these regulations; and (3) that I have read and understand the information being certified or submitted, and this information is true, complete and correct to the best of my knowledge and belief after I have taken reasonable and appropriate steps to verify the accuracy thereof.

I affirm that I have read and understand the provisions of 40 CFR part 80, subpart I, including 40 CFR 80.620 apply to [insert name of foreign refiner]. Pursuant to Clean Air Act section 113(c) and 18 U.S.C. 1001, the penalty for furnishing false, incomplete or misleading information in this certification or submission is a fine of up to $10,000 U.S., and/or imprisonment for up to five years.

[66 FR 5136, Jan. 18, 2001, as amended at 69 FR 39208, June 29, 2004]



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