Regulation of Fuels and Fuel Additives: Alternative Affirmative Defense Requirements for Ultra-Low Sulfur Diesel and Gasoline Benzene Technical Amendment, 26121-26131 [2010-10915]
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Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations
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[FR Doc. 2010–11010 Filed 5–10–10; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 80
[EPA–HQ–OAR–2007–1158; FRL–9147–4]
RIN 2060–AO71
Regulation of Fuels and Fuel
Additives: Alternative Affirmative
Defense Requirements for Ultra-Low
Sulfur Diesel and Gasoline Benzene
Technical Amendment
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AGENCY: Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
SUMMARY: EPA is issuing a direct final
rule to amend the diesel sulfur
regulations to allow refiners, importers,
distributors, and retailers of highway
diesel fuel the option to use an
alternative affirmative defense if the
Agency finds highway diesel fuel
samples above the specified sulfur
standard at retail facilities. This
alternative defense consists of a
comprehensive program of quality
assurance sampling and testing that
would cover all participating companies
that produce and/or distribute highway
diesel fuel if certain other conditions are
met. The sampling and testing program
would be carried out by an independent
surveyor. The program would be
conducted pursuant to a survey plan
approved by EPA that is designed to
achieve the same objectives as the
current regulatory quality assurance
requirement. This rule also amends the
gasoline benzene regulations to allow
disqualified small refiners the same
opportunity to generate gasoline
benzene credits as that afforded to nonsmall refiners.
DATES: This rule is effective on July 12,
2010 without further notice, unless EPA
receives adverse comment by June 10,
2010. If EPA receives adverse comment,
we will publish a timely withdrawal in
the Federal Register informing the
public that this rule, or the relevant
provisions of this rule, will not take
effect. The incorporation by reference of
a certain publication listed in the
regulations is approved by the Director
of the Federal Register as of July 12,
2010.
Hearings: If EPA receives a request
from a person wishing to speak at a
public hearing by May 26, 2010, a
public hearing will be held at a time and
location to be announced in a
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subsequent Federal Register notice. To
request to speak at a public hearing,
send a request to the contact in FOR
FURTHER INFORMATION CONTACT.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OAR–2007–1158, by one of the
following methods:
• https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
• E-mail: a-and-r-docket@epa.gov.
• Fax: (202) 566–9744.
• Mail: Air and Radiation Docket,
Environmental Protection Agency,
Mailcode: 2822T, 1200 Pennsylvania
Ave., NW., Washington, DC 20460.
• Hand Delivery: EPA Docket Center,
Room 3334, EPA West Building, 1301
Constitution Avenue, NW., Washington,
DC, Attention Air Docket ID No. EPA–
HQ–OAR–2007–1158. Such deliveries
are only accepted during the Docket’s
normal hours of operation, and special
arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–HQ–OAR–2007–
1158. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through https://
www.regulations.gov, your e-mail
address will automatically be captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional information
about EPA’s public docket, visit the EPA
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Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in www.regulations.gov
or in hard copy at the Air Docket, EPA/
DC, EPA West, Room 3334, 1301
Constitution Ave., NW., Washington,
DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal
holidays. The telephone number for the
Public Reading Room is (202) 566–1744,
and the telephone number for the Air
Docket is (202) 566–1742.
FOR FURTHER INFORMATION CONTACT:
Jaimee Dong, Compliance and
Innovative Strategies Division, Office of
Transportation and Air Quality, Office
of Air and Radiation, Environmental
Protection Agency, Mail Code 6405J,
1200 Pennsylvania Avenue,
Washington, DC 20460; telephone
number: (202) 343–9672; fax number:
(202) 343–2800; e-mail address:
Dong.Jaimee@epa.gov.
SUPPLEMENTARY INFORMATION:
Why is EPA using a direct final rule?
EPA is publishing this rule without a
prior proposed rule because we view
this as a noncontroversial action and
anticipate no adverse comment.
However, in the ‘‘Proposed Rules’’
section of today’s Federal Register, we
are publishing a separate document that
will serve as the proposed rule to amend
the diesel sulfur regulations and the
gasoline benzene regulations if adverse
comments are received on this direct
final rule. We do not intend to institute
a second comment period on this action.
Any parties interested in commenting
must do so at this time. For further
information about commenting on this
rule, see the ADDRESSES section of this
document.
If EPA receives adverse comment on
a distinct provision of this rulemaking,
we will publish a timely withdrawal in
the Federal Register indicating which
provisions we are withdrawing. The
provisions that are not withdrawn will
become effective on the date set out
above, notwithstanding adverse
comment on any other provision. We
will address all public comments in any
subsequent final rule based on the
proposed rule.
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Does this action apply to me?
Entities potentially affected by this
action include those involved with the
production, importation, distribution,
marketing, or retailing of diesel fuel and
NAICS codes a
Category
Industry ................................................................................
Industry ................................................................................
Industry ................................................................................
a
b
SIC codes b
324110
422710
484220
2911
5171
4212
Examples of potentially regulated entities
Petroleum Refiners.
Diesel Fuel Marketers and Distributors.
Diesel Fuel Carriers.
North American Industry Classification System (NAICS).
Standard Industrial Classification (SIC) system code.
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
affected by this action; however, other
types of entities not listed in the table
could also be affected. To determine
whether your entity is affected by this
action, you should examine the
applicability criteria of parts 79 and 80
of title 40 of the Code of Federal
Regulations. If you have any question
regarding applicability of this action to
a particular entity, consult the person in
the preceding FOR FURTHER INFORMATION
CONTACT section.
What should I consider as I prepare my
comments for EPA?
jlentini on DSKJ8SOYB1PROD with RULES
production of gasoline. Categories and
entities affected by this action include:
A. Submitting CBI. Do not submit this
information to EPA through https://
www.regulations.gov or e-mail. Clearly
mark the information that you claim to
be CBI. For CBI information on a disk
or CD ROM that you mail to EPA, mark
the outside of the disk or CD ROM as
CBI and then identify electronically
within the disk or CD ROM the specific
information that is claimed as CBI. In
addition to one complete version of the
comment that includes information
claimed as CBI, a copy of the comment
that does not contain the information
claimed as CBI must be submitted for
inclusion in the public docket.
Information marked as CBI will not be
disclosed except in accordance with
procedures set forth in 40 CFR part 2.
B. Tips for Preparing Your Comments.
When submitting comments, remember
to:
• Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register date and page number).
• Follow directions—The agency may
ask you to respond to specific questions
or organize comments by referencing a
Code of Federal Regulations (CFR) part
or section number.
• Explain why you agree or disagree;
suggest alternatives and substitute
language for your requested changes.
• Describe any assumptions and
provide any technical information and/
or data that you used.
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• If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
• Provide specific examples to
illustrate your concerns, and suggest
alternatives.
• Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats.
• Make sure to submit your
comments by the comment period
deadline identified.
C. Docket Copying Costs. You may be
charged a reasonable fee for
photocopying docket materials, as
provided by 40 CFR part 2.
Outline of This Preamble
I. Background
II. Need for Action
III. This Action
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination with Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children from Environmental Health and
Safety Risks
H. Executive Order 13211: Acts that
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act
J. Executive Order 12898: Federal Actions
to Address Environmental Justice in
Minority Populations and Low-Income
Populations.
K. Congressional Review Act
L. Clean Air Act Section 307(d)
V. Statutory Provisions and Legal Authority
I. Background
The diesel sulfur regulations were
designed to ensure widespread
availability of highway diesel fuel
containing 15 parts per million (ppm)
sulfur or less by October 2006. Almost
all highway diesel engines produced
beginning in 2007 will be equipped
with emissions control systems that are
sensitive to sulfur. These vehicles
should be fueled with diesel fuel
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produced to contain no more than 15
ppm sulfur (called Ultra-Low Sulfur
Diesel or ULSD highway diesel fuel) in
order for the emissions control systems
to function properly, and to prevent
damage to the emissions control
systems.
The diesel sulfur regulations require
refiners, importers, distributors and
retailers who produce, import, sell, store
or transport ULSD highway diesel fuel
to meet the standards specified in the
diesel sulfur regulations. Where a
violation of the standards is identified at
a retail outlet, the retailer responsible
for dispensing the noncompliant fuel is
deemed liable, as well as the refiner(s),
importer(s) and distributor(s) of such
fuel. See 40 CFR 80.612(a). In addition,
where the corporate, trade or brand
name of a refiner appears at a retail
outlet found to be in violation, that
branded refiner is also deemed liable for
the violation. See 40 CFR 80.612(a)(3).
The diesel sulfur regulations further
provide, however, that any person
deemed liable can rebut this
presumption by establishing an
affirmative defense that includes, among
other things, showing that it conducted
a quality assurance sampling and testing
program as prescribed by the
regulations. See 40 CFR 80.613(a)(1) and
40 CFR 80.613(d). Branded refiners and
importers are not liable if they can
establish, among other things, that the
violation was caused by the action of a
third-party distributor or retailer who
violated product handling procedures
that were contractually required by the
refiner, despite periodic sampling and
testing to ensure compliance with the
contractual obligation.
II. Need for Action
EPA received questions from several
large branded refiners of ULSD highway
diesel fuel regarding how EPA would
enforce violations of the downstream
sulfur standard in instances where a
ULSD highway diesel fuel sample test
result exceeded the downstream
standard by an amount less than the 2
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ppm adjustment factor.1 These
questions led to discussions between
EPA and the refiners about establishing
an optional nationwide sampling and
testing program in which refiners could
participate to satisfy the affirmative
defense requirements under § 80.613.
This program, which would be generally
modeled on the reformulated gasoline
(RFG) survey program set forth in 40
CFR 80.68, would be conducted by an
independent survey organization
following a survey plan approved
annually by EPA, and funded by a
consortium of refiners, importers and
distributors.
For the reasons discussed below, EPA
believes it is appropriate to provide
branded refiners or importers who sell
ULSD highway diesel fuel at retail
stations with an alternative means of
meeting the affirmative defense
requirements in § 80.613. We also
believe it is appropriate to provide this
alternative to unbranded refiners and
importers, as well as distributors and
retailers. As a result, this rule amends
the diesel sulfur regulations to provide
an optional alternative means of
meeting the defense requirements in
§ 80.613, which will be available to any
refiner, importer, distributor or retailer
of ULSD highway diesel fuel.
We believe that the use of the new
alternative quality assurance
compliance program will result in a
quality assurance program equivalent to
that currently required under the diesel
sulfur regulations. The provisions in
this rule are equivalent to those in an
existing program that was implemented
by EPA’s Office of Enforcement and
Compliance Assurance in October, 2006
through enforcement discretion, and
which has efficiently provided
significant amounts of statistically valid
information on a nationwide basis.
Sampling results from the program
(aggregated on a quarterly basis) are
available on the Web site of the Clean
Diesel Fuel Alliance at https://www.
clean-diesel.org/pump_survey.html.
This rule will not have any adverse
1 The diesel sulfur regulations at § 80.580(d)
provide for an adjustment factor to be subtracted
from test results for samples taken downstream of
the refinery gate, to account for test variability. The
adjustment factor was 3 ppm prior to October 15,
2008, and is now 2 ppm as of October 15, 2008.
Thus, ULSD highway diesel fuel downstream of the
refinery gate would be deemed to be compliant
beginning October 15, 2008 if a test result showed
it contained no more than 17 ppm sulfur. For ease
of reference, this preamble uses the term
‘‘downstream sulfur standard’’ to refer to the 15 ppm
standard plus the adjustment factor, i.e. 17 ppm,
beginning October 15, 2008. The term ULSD means
diesel fuel subject to the 15 ppm standard
applicable at the refinery gate, and subject to the
downstream sulfur standard of 15 ppm plus the 2
ppm adjustment factor.
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environmental impact and will provide
refiners, importers and distributors
additional flexibility in complying with
the diesel sulfur regulations.
III. This Action
This action provides refiners,
importers, distributors and retailers of
ULSD highway diesel fuel the option of
an alternative defense to liability that
consists in part of a nationwide program
of sampling and testing designed to
provide oversight of all retail stations
that sell ULSD highway diesel fuel.
Under this option, a refiner, importer,
distributor or retailer must participate in
an organization that arranges to have an
independent surveyor conduct a
program of compliance surveys
pursuant to a survey plan designed to
achieve the same quality assurance
objectives as the current regulatory
requirement. A detailed survey plan
must be submitted to EPA for approval
by November 1 of the year preceding the
year in which the alternative quality
assurance sampling and testing program
would be implemented. The survey plan
must include a methodology for
determining when the survey samples
will be collected, the locations of the
retail outlets where the samples will be
collected, the number of samples to be
included in the survey, and any other
elements that EPA determines are
necessary to achieve the same level of
quality assurance as the current
requirement.
Under this alternative quality
assurance program, the independent
surveyor is required to collect samples
of ULSD highway diesel fuel at retail
stations and have the samples tested for
sulfur content. This nationwide
sampling and testing program would be
designed to ensure comprehensive
geographic coverage of regulated
highway diesel fuel sold at retail outlets,
would provide proportionate coverage
of such fuel in three sampling strata,
and would be done in accordance with
the provisions in 40 CFR 80.580. These
three strata generally refer to: (1)
Densely populated areas, which include
Metropolitan Statistical Areas and the
reformulated gasoline control areas; (2)
transportation corridors, which are
based on interstate highways outside the
densely populated areas. Transportation
corridors include areas immediately
adjacent to the highways themselves
and a swath within several miles on
each side of the highway. For any given
survey, a certain length of any specific
highway may be deemed appropriate as
a sampling unit or cluster; (3) rural
areas, which include all areas not
included in the previous two strata.
These areas are subdivided into clusters,
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generally based on groupings of
counties. The specific criteria used for
selecting sampling areas for each survey
plan is subject to EPA approval.
The surveyor would generate and
report summary sulfur content statistics
to EPA each calendar quarter. In
addition, where the survey finds
noncompliant samples of ULSD
highway diesel fuel, the liable parties
would be responsible for identifying
and addressing the root cause of the
violation to prevent future violations.
EPA recognizes that any alternative
quality assurance program must result
in the same level of consistency in
meeting the ULSD standard for highway
fuel as the current quality assurance
requirements. A sampling and testing
program that accomplishes this must
both accurately estimate the proportion
of retail stations that sell non-compliant
ULSD highway diesel fuel and provide
a credible deterrent to deliberate or
inadvertent violations of downstream
enforcement standards.
While not mutually exclusive, the two
overall objectives differ significantly in
how an adequate number of samples for
an alternative quality assurance program
is calculated. The amount of sampling
needed to satisfy either objective
depends on a number of considerations
which pose separate difficulties for the
two objectives. On the one hand, the
amount needed to estimate the
proportion of retail stations that sell
non-compliant ULSD highway diesel
fuel varies as a function of the expected
underlying proportion of stations selling
non-compliant fuel, the proportion of
stations needed to be non-compliant to
determine that fuel is non-compliant,
the selected confidence level, and
various sample design parameters.
Thus, arriving at the sampling
requirement for determining the
proportion of retail stations that sell
non-compliant ULSD highway diesel
relies on determining tolerable levels of
non-compliance and confidence that
would provide a suitable degree of
accuracy.
On the other hand, the amount of
sampling needed to maintain adequate
deterrence rests on sound judgment by
experienced field enforcement
personnel based on the attractiveness/
profitability of deliberate violations, the
likelihood of inadvertent violations, the
nature of penalty policies, and the speed
with which information about
enforcement actions and their outcomes
is disseminated throughout the
regulated community. Therefore,
deciding how much sampling is needed
for effective deterrence is a less
deterministic process.
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For the reasons discussed above, no
single statistical formula can be used
exclusively to determine the size of an
acceptable sampling program if both
objectives are to be met. The use of a
rigorous survey sampling methodology
serves both principal objectives. For
non-compliance estimation purposes,
the need for such statistical rigor is
necessary for an accurate measure of the
proportion of retail stations selling noncompliant ULSD highway diesel fuel.
Another benefit from the use of such
methodology is that it makes the most
efficient use of limited resources by
distributing sampling in a way that no
regulated party can be confident that it
will not be sampled and tested.
When a violation occurs, today’s rule
allows branded refiners that participate
in the consortium to establish a defense
for themselves, and also establish a
defense for distributors and retailers
that operate under the branded refiners’
trade or brand name under new
provisions in § 80.613(e). Unbranded
refiners and distributors that do not
operate under the trade or brand name
of a refiner, as well as distributors that
operate under a refiner’s trade or brand
name but the refiner has elected to not
participate in the consortium, also may
use these new defense provisions by
independently participating in the
consortium. In certain situations, a
distributor’s operations may be partially
under the brand name of a participating
refiner and partially under the brand
name of a non-participating refiner or
partially not under the brand name of a
refiner. Such distributors, if they seek to
use the alternative defense discussed
here, must participate independently in
the consortium to meet their defense
requirements under § 80.613(e) for their
operations that are under the brand
name of a non-participating refiner, or
operations not under the brand name of
a refiner.
Where the survey association finds a
sample of ULSD highway diesel fuel
that exceeds the downstream sulfur
standard, participants in the consortium
have different requirements for
establishing their defense under
§ 80.613(e), depending on the amount of
the exceedance. For exceedances of up
to 2 ppm over the downstream standard,
consortium participants will be deemed
to have met all of their defense
requirements under § 80.613(e)
provided they demonstrate to EPA that
diesel fuel last supplied to the retail
station contained no more than 15 ppm
sulfur prior to subtracting the 2 ppm
adjustment factor when dispensed at the
supplying terminal, and take several
actions, described in further detail
below, to stop distribution of the
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violating fuel, to determine why the
violation occurred, and to provide a
report to EPA explaining how such
violations will be avoided in the future.
However, for exceedances of more than
2 ppm over the downstream standard,
consortium participants must also meet
additional defense requirements as
described in further detail below.
EPA chose 2 ppm as a threshold based
on past sulfur testing experience in
order to provide an incentive for
regulated parties to participate in the
consortium while encouraging
participants to take appropriate steps to
comply. Exceedances of more than 2
ppm over the downstream standard
indicate that a regulated party may not
have taken appropriate steps to comply,
and that more analysis is required to
determine the cause of the exceedance.
The exceedance threshold of 2 ppm is
equal to the 2 ppm adjustment factor
allowed for downstream parties in the
diesel sulfur regulations. Due to
variability in sulfur test methods,
downstream parties are allowed to
subtract 2 ppm from their sulfur test
result to determine compliance with the
15 ppm sulfur standard, which means
that a downstream sulfur test result of
17 ppm is considered to be compliant
with the 15 ppm sulfur standard.
However, a test variability of 2 ppm
means actual sulfur content may also be
2 ppm greater than the test result, so if
diesel fuel containing 17 ppm sulfur is
tested twice for sulfur, one test result
may be 15 ppm and one test result may
be 19 ppm. Thus, if a terminal has a
sulfur test result of 15 ppm for their
diesel fuel prior to subtracting the 2
ppm adjustment factor, it is possible for
another party to test the same diesel fuel
and obtain a test result of 19 ppm.
Requiring the supplying terminal to
demonstrate that their diesel fuel when
tested contained no more than 15 ppm
sulfur prior to subtracting the 2 ppm
adjustment factor means that a retail test
result of 19 ppm would show
noncompliance but would still be
consistent with other test results that
show compliance under the regulations.
When the survey association finds a
sample of ULSD highway diesel fuel
which exceeds the downstream
standard by 2 ppm or less, branded
refiners that participate in the
consortium must take several actions to
meet all of their defense requirements
under § 80.613(e). These include
demonstrating to EPA that diesel fuel
last supplied to the retail station
contained no more than 15 ppm sulfur
when dispensed at the supplying
terminal, and that best efforts and
accepted business practices are used by
downstream parties to avoid diesel fuel
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contamination. Also, following
notification to the branded refiner by
the survey association of the test result,
appropriate steps must be taken within
24 hours to ensure the diesel fuel is not
dispensed into motor vehicles until
remedial action is taken to ensure the
fuel sulfur content is no greater than the
applicable downstream standard. This
action may include either shutting
down the pumps which supply the
diesel fuel, or placing new labels on the
pumps stating they dispense 500 ppm
highway diesel fuel rather than 15 ppm
highway diesel fuel (prior to June 1,
2010). Lastly, the branded refiner must
submit a report to EPA within 120 days
of the exceedance, which explains the
circumstances and root cause of the
exceedance and steps taken to prevent
distribution of noncompliant fuel, and
lists actions that will be taken to prevent
future exceedances. The refiner must
also provide EPA with copies of
contracts which include the procedures
in place to prevent contamination of
ULSD highway diesel fuel. The survey
association must also retest ULSD
highway diesel fuel dispensed at the
retail station during its next survey, in
addition to its scheduled sampling.
Unbranded refiners, distributors and
retailers that participate in the
consortium have slightly different
requirements from branded refiners for
establishing their defense when the
survey association finds a retail sample
which exceeds the downstream
standard by 2 ppm or less. Participating
unbranded refiners will be deemed to
have met all of their affirmative defense
requirements under § 80.613(e) if they
carry out all of the actions listed
previously for branded refiners (except
for providing EPA with copies of
contracts that include procedures in
place to prevent contamination of ULSD
highway diesel fuel). Participating
distributors and retailers will be deemed
to have met all of their defense
requirements under § 80.613(e) if they
carry out all of the actions listed
previously for branded refiners (except
for providing EPA with copies of
contracts that include procedures in
place to prevent contamination of ULSD
highway diesel fuel). Additionally, the
retail outlet at which the sample was
collected must have had no previous
instances of a tested sample of ULSD
highway diesel fuel exceeding the
downstream standard for two years
prior to the exceedance. If a tested
sample of ULSD highway diesel fuel
exceeded the downstream standard
within the prior two years, participating
distributors and retailers must also meet
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the defense elements under
§ 80.613(a)(1)(i) and (ii), and § 80.613(c).
When the survey association finds a
sample that exceeds the downstream
sulfur standard by more than 2 ppm,
under § 80.613(e) branded refiners must
carry out the actions listed previously
for branded refiners. In addition, such
branded refiners must also meet the
defense elements in § 80.613(b), such as
showing they did not cause the
violation, or that the violation was
caused by another person. Similarly,
under § 80.613(e), unbranded refiners,
distributors and retailers must carry out
all of the actions listed previously for
branded refiners (except for providing
EPA with copies of contracts that
include procedures in place to prevent
contamination of ULSD highway diesel
fuel). In addition, such distributors must
also meet the defense elements under
§ 80.613(a)(1)(i) and (ii), and § 80.613(c).
Use of this alternative affirmative
defense and participation in this quality
assurance program is optional, and
refiners, importers, distributors, and
retailers may choose to conduct their
own quality assurance program as
provided currently in the regulations
instead of participating in this
nationwide program. A refiner that does
not participate in the consortium will
continue to be subject to the sampling
and testing defense provisions under
§ 80.613, as will distributors that
operate under such a refiner’s trade or
brand name unless such a distributor
independently participates in the
consortium.
Today’s rule also makes one minor
correction to the gasoline benzene
regulations clarifying when a small
refiner who loses their small refiner
status may generate gasoline benzene
credits. Disqualified small refiners are
allowed a grace period of up to 36
months after the date of the
disqualifying event to begin meeting the
gasoline benzene standards applicable
to non-small refiners. The gasoline
benzene regulations currently prohibit
disqualified small refiners from
generating either early or standard
gasoline benzene credits at any of their
refineries during this grace period. This
results in limitations on credit
generation for disqualified small
refiners that are more stringent than
limitations on credit generation for nonsmall refiners, which was not EPA’s
intent. Today’s rule amends the gasoline
benzene regulations at § 80.1339(e)(4) to
allow disqualified small refiners the
same opportunity to generate gasoline
benzene credits during the grace period
as that afforded to non-small refiners.
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IV. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
Under Executive Order (EO) 12866
(58 FR 51735, October 4, 1993), this
action is a ‘‘significant regulatory
action.’’ Accordingly, EPA submitted
this action to the Office of Management
and Budget (OMB) for review under EO
12866 and any changes made in
response to OMB recommendations
have been documented in the docket for
this action.
B. Paperwork Reduction Act
The information collection
requirements in this direct final rule
have been submitted for approval to the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR)
document prepared by EPA has been
assigned EPA ICR number 2364.03.
This direct final rule provides
refiners, importers and distributors of
ULSD highway diesel fuel with
additional flexibility to comply with the
diesel sulfur regulations. The flexibility
afforded under this rule is optional.
Modest information collection
requirements in the form of reports for
noncompliant diesel sulfur samples are
required for those parties who avail
themselves of the flexibility provided in
this rule. The information under this
rule will be collected by EPA’s
Transportation and Regional Programs
Division, Office of Transportation and
Air Quality, Office of Air and Radiation
(OAR), and by EPA’s Air Enforcement
Division, Office of Regulatory
Enforcement, Office of Enforcement and
Compliance Assurance (OECA). The
information collected will be used by
EPA to evaluate compliance with the
requirements under the diesel sulfur
program. This oversight by EPA is
necessary to ensure attainment of the air
quality goals of the diesel sulfur
program.
The estimated hourly burden per
respondent for the diesel surveys is 16
hours. The estimated annual hourly
burden is 320 hours for all respondents
(assuming 20 respondents per year). The
estimated hourly cost is $71 per hour.
The total estimated cost per respondent
is $1,136. The total estimated cost for all
respondents is $22,270. Burden is
defined at 5 CFR 1320.3(b).
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a currently valid OMB
control number. The OMB control
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26125
numbers for EPA’s regulations in 40
CFR are listed in 40 CFR part 9.
To comment on the Agency’s need for
this information, the accuracy of the
provided burden estimates, and any
suggested methods for minimizing
respondent burden, EPA has established
a public docket for this rule, which
includes this ICR, under Docket ID
number EPA–HQ–OAR–2007–1158.
Submit any comments related to the ICR
to EPA and OMB. See ADDRESSES
section at the beginning of this notice
for where to submit comments to EPA.
Send comments to OMB at the Office of
Information and Regulatory Affairs,
Office of Management and Budget, 725
17th Street, NW., Washington, DC
20503, Attention: Desk Office for EPA.
Comments must be submitted on or
before July 12, 2010.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedure Act or any
other statute unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions.
For purposes of assessing the impacts
of today’s rule on small entities, small
entity is defined as: (1) A small business
as defined by the Small Business
Administration’s (SBA) regulations at 13
CFR 121.201; (2) a small governmental
jurisdiction that is a government of a
city, county, town, school district or
special district with a population of less
than 50,000; and (3) a small
organization that is any not-for-profit
enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of today’s final rule on small
entities, we certify that this action will
not have a significant economic impact
on a substantial number of small
entities. In determining whether a rule
has a significant economic impact on a
substantial number of small entities, the
impact of concern is any significant
adverse economic impact on small
entities since the primary purpose of the
regulatory flexibility analyses is to
identify and address regulatory
alternatives ‘‘which minimize any
significant economic impact of the rule
on small entities.’’ 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule
will not have a significant economic
impact on a substantial number of small
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entities if the rule relieves regulatory
burden, or otherwise has a positive
economic effect on all of the small
entities subject to the rule.
Today’s final rule provides additional
flexibility to refiners, importers, and
distributors of diesel fuel by amending
the diesel sulfur regulations to allow a
voluntary nationwide sampling and
testing program to be used as an
alternative means of meeting the
sampling and testing defense elements
under 40 CFR 80.613. Participation in
the program should reduce regulatory
burden on all participants. Any small
entities may choose whether or not to
join the program. Today’s rule also
amends the gasoline benzene
regulations to allow disqualified small
refiners the same opportunity to
generate gasoline benzene credits as that
afforded to non-small refiners. We have
therefore concluded that today’s final
rule will relieve the regulatory burden
for all affected small entities.
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D. Unfunded Mandates Reform Act
This rule does not contain a Federal
mandate that may result in expenditures
of $100 million or more for State, local,
and tribal governments, in the aggregate,
or the private sector in any one year.
This rule provides refiners, distributors,
and importers of diesel fuel with
additional flexibility in complying with
regulatory requirements. As a result,
this rule will have the overall effect of
reducing the burden of the diesel sulfur
regulations on these regulated parties.
These requirements also codify existing
practices designed to ensure that ULSD
highway diesel fuel meets downstream
standards. Today’s rule also amends the
gasoline benzene regulations to allow
disqualified small refiners the same
opportunity to generate gasoline
benzene credits as that afforded to nonsmall refiners, relieving burden on small
refiners. Thus, this rule is not subject to
the requirements of sections 202 or 205
of UMRA.
This rule is also not subject to the
requirements of section 203 of UMRA
because it contains no regulatory
requirements that might significantly or
uniquely affect small governments. The
action imposes no enforceable duty on
any State, local or tribal governments.
E. Executive Order 13132: Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. This rule
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provides refiners, distributors, and
importers of diesel fuel with additional
flexibility in complying with regulatory
requirements. These requirements also
codify existing practices designed to
ensure that ULSD highway diesel fuel
meets downstream standards. Today’s
rule also amends the gasoline benzene
regulations to allow disqualified small
refiners the same opportunity to
generate gasoline benzene credits as that
afforded to non-small refiners. The
requirements of the rule will be
enforced by the Federal government at
the national level. Thus, Executive
Order 13132 does not apply to this rule.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications, as specified in Executive
Order 13175 (65 FR 67249, November 9,
2000). This rule applies to refiners,
distributors, and importers of diesel
fuel. This action contains certain
modifications to the federal
requirements for diesel sulfur, and will
not impose any enforceable duties on
communities of Indian tribal
governments. Today’s rule also amends
the gasoline benzene regulations to
allow disqualified small refiners the
same opportunity to generate gasoline
benzene credits as that afforded to nonsmall refiners, and will not impose any
enforceable duties on communities of
Indian tribal governments. Thus,
Executive Order 13175 does not apply
to this action.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
EPA interprets EO 13045 (62 FR
19885, April 23, 1997) as applying only
to those regulatory actions that concern
health or safety risks, such that the
analysis required under section 5–501 of
the EO has the potential to influence the
regulation. This action is not subject to
EO 13045 because it does not establish
an environmental standard intended to
mitigate health or safety risks.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This rule is not a ‘‘significant energy
action’’ as defined in Executive Order
13211 (66 FR 28355 (May 22, 2001))
because it is not likely to have a
significant adverse effect on the supply,
distribution, or use of energy. Further,
we have concluded that this rule is not
likely to have any adverse energy
effects.
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I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus standards
bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations
when the Agency decides not to use
available and applicable voluntary
consensus standards.
This rule does not involve technical
standards. Therefore, EPA did not
consider the use of any voluntary
consensus standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order (EO) 12898 (59 FR
7629 (Feb. 16, 1994)) establishes federal
executive policy on environmental
justice. Its main provision directs
federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this final
rule will not have disproportionately
high and adverse human health or
environmental effects on minority or
low-income populations because it does
not affect the level of protection
provided to human health or the
environment. This is a rule amendment
that does not relax the control measures
on sources regulated by the rule and
therefore will not cause emissions
increases from these sources.
K. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
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report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A Major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2). This rule
will be effective July 12, 2010.
L. Clean Air Act Section 307(d)
This rule is subject to Section 307(d)
of the CAA. Section 307(d)(7)(B)
provides that ‘‘[o]nly an objection to a
rule or procedure which was raised with
reasonable specificity during the period
for public comment (including any
public hearing) may be raised during
judicial review.’’ This section also
provides a mechanism for the EPA to
convene a proceeding for
reconsideration, ‘‘[i]f the person raising
an objection can demonstrate to the EPA
that it was impracticable to raise such
objection within [the period for public
comment] or if the grounds for such
objection arose after the period for
public comment (but within the time
specified for judicial review) and if such
objection is of central relevance to the
outcome of the rule.’’ Any person
seeking to make such a demonstration to
the EPA should submit a Petition for
Reconsideration to the Office of the
Administrator, U.S. EPA, Room 3000,
Ariel Rios Building, 1200 Pennsylvania
Ave., NW., Washington, DC 20460, with
a copy to both the person(s) listed in the
preceding FOR FURTHER INFORMATION
CONTACT section, and the Director of the
Air and Radiation Law Office, Office of
General Counsel (Mail Code 2344A),
U.S. EPA, 1200 Pennsylvania Ave.,
NW., Washington, DC 20004.
V. Statutory Provisions and Legal
Authority
Regulation of Fuels and Fuel
Additives: Alternative Affirmative
Defense Requirements for Ultra-low
Sulfur Diesel and Gasoline Benzene
Technical Amendment.
Statutory authority for the fuel
controls set in this direct final rule
comes from sections 211 and 301(a) of
the CAA.
jlentini on DSKJ8SOYB1PROD with RULES
List of Subjects in 40 CFR Part 80
Environmental protection, Air
pollution control, Fuel additives, Diesel,
Gasoline, Imports, Incorporation by
reference, Labeling, Motor vehicle
pollution, Penalties, Reporting and
recordkeeping requirements.
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Dated: May 3, 2010.
Lisa P. Jackson,
Administrator.
For the reasons set out in the
preamble, part 80 Chapter I, title 40 of
the Code of Federal Regulations is
amended as follows:
■
PART 80—REGULATION OF FUEL
AND FUEL ADDITIVES
1. The authority citation for part 80
continues to read as follows:
■
Authority: 42 U.S.C. 7414, 7542, 7545, and
7601(a).
2. Section 80.613 is amended by
adding paragraph (e) to read as follows:
■
§ 80.613 What defenses apply to persons
deemed liable for a violation of a prohibited
act under this subpart?
*
*
*
*
*
(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:
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26127
(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 29–02ε1,
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 29–02ε1 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: https://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
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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.
{
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n = ⎡( Zα + Zβ ) ⎤ 2
⎣
⎦
Where:
n = minimum number of samples in a yearlong survey series. However, in no case shall
n be larger than 9,600 or smaller than 5,250.
Zα = upper percentile point from the normal
distribution to achieve a one-tailed 95%
confidence level (5% a-level). Thus, Zα
equals 1.645.
Zβ = upper percentile point to achieve 95%
power. Thus, Zβ equals 1.645.
jl = 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, jl will be 5%.
jo = the underlying proportion of noncompliant stations in a sample. For
calendar year 2011, jowill be 1.9%. For
calendar years 2012 and beyond, jo will
be the average of the proportion of
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(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:
( 4 ∗ ⎡⎣arc sin ( φ ) − arc sin ( φ )⎤⎦ )} ∗ St ∗ F ∗ F ∗ Su
2
1
0
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
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n
a
b
n
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
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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 twentyfour 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.
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(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
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26129
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
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Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations
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
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16:21 May 10, 2010
Jkt 220001
(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
PO 00000
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Fmt 4700
Sfmt 4700
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
E:\FR\FM\11MYR1.SGM
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Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations
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.
■ 3. Section 80.1339 is amended by
revising paragraph (e)(4) to read as
follows:
§ 80.1339 Who is not eligible for the
provisions for small refiners?
*
*
*
*
*
(e) * * *
(4) During the period provided under
paragraph (e)(2) of this section, and any
extension provided under paragraph
(e)(3) of this section, the refiner may not
generate gasoline benzene credits under
§ 80.1275(b)(3) for any of its refineries
where under § 80.1342 the refiner was
previously allowed to defer compliance
with the standards in §§ 80.1230(a) and
80.1230(b).
*
*
*
*
*
[FR Doc. 2010–10915 Filed 5–10–10; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 300
jlentini on DSKJ8SOYB1PROD with RULES
[EPA–HQ–SFUND–2009–0654; FRL–9146–8]
National Oil and Hazardous Substance
Pollution Contingency Plan; National
Priorities List
AGENCY: Environmental Protection
Agency.
ACTION: Direct final rule.
SUMMARY: The Environmental Protection
Agency (EPA) Region II is publishing a
VerDate Mar<15>2010
16:21 May 10, 2010
Jkt 220001
direct final Notice of Deletion of the
Asbestos Dump Superfund Site (Site),
located in Long Hill Township and
Harding Township, New Jersey, from
the National Priorities List (NPL). The
NPL, promulgated pursuant to section
105 of the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA) of 1980, as amended, is an
appendix of the National Oil and
Hazardous Substances Pollution
Contingency Plan (NCP). This direct
final deletion is being published by EPA
with the concurrence of the State of
New Jersey, through the New Jersey
Department of Environmental Protection
(NJDEP), because EPA has determined
that all appropriate response actions
under CERCLA, other than operation,
maintenance, and five-year reviews,
have been completed. However, this
deletion does not preclude future
actions under Superfund.
DATES: This direct final deletion is
effective July 12, 2010 unless EPA
receives adverse comments by June 10,
2010. If adverse comments are received,
EPA will publish a timely withdrawal of
the direct final deletion in the Federal
Register informing the public that the
deletion will not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
SFUND–2009–0654, by one of the
following methods:
• https://www.regulations.gov. Follow
on-line instructions for submitting
comments.
• E-mail: hwilka.theresa@epa.gov:
Theresa Hwilka, Remedial Project
Manager; seppi.pat@epa.gov: Pat Seppi,
Community Involvement Coordinator.
• Fax: 212–637–4429.
• Mail: Theresa Hwilka, Remedial
Project Manager, U.S. Environmental
Protection Agency, Region II,
Emergency & Remedial Response
Division, 290 Broadway, 19th Floor,
New York, NY 10007; or Pat Seppi,
Community Involvement Coordinator,
U.S. Environmental Protection Agency,
Region II, Public Affairs Division, 290
Broadway, 26th Floor, New York, NY
10007.
• Hand delivery: U.S. Environmental
Protection Agency, Region II,
Emergency & Remedial Response
Division, 290 Broadway, 19th Floor,
New York, NY 10007. Such deliveries
are only accepted during the Docket’s
normal hours of operation, and special
arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–HQ–SFUND–2009–
0654. EPA’s policy is that all comments
received will be included in the public
PO 00000
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26131
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through https://
www.regulations.gov, your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses.
Docket
All documents in the docket are listed
in the https://www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
e.g., CBI or other information whose
disclosure is restricted by statue. Certain
other material, such as copyrighted
material, will be publicly available only
in the hard copy. Publicly available
docket materials are available either
electronically in https://
www.regulations.gov or in hard copy at:
U.S. Environmental Protection Agency,
Region II, Superfund Records Center,
290 Broadway, Room 1828. (212) 637–
4308.
Hours: 9 a.m. to 5 p.m., Monday
through Friday; and at Long Hill
Township Public Library, 917 Valley
Road, Gillette, New Jersey 07933. (908)
647–2088.
Hours: 10 a.m. to 9 p.m., Monday
through Thursday. 10 a.m. to 5 p.m.,
Friday and Saturday. 1 p.m. to 5 p.m.,
Sunday (Closed on Sundays in July and
August).
FOR FURTHER INFORMATION CONTACT:
Theresa Hwilka, Remedial Project
Manager, U.S. Environmental Protection
Agency, Region II, 290 Broadway, New
E:\FR\FM\11MYR1.SGM
11MYR1
]]>Agencies
[Federal Register Volume 75, Number 90 (Tuesday, May 11, 2010)]
[Rules and Regulations]
[Pages 26121-26131]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-10915]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[EPA-HQ-OAR-2007-1158; FRL-9147-4]
RIN 2060-AO71
Regulation of Fuels and Fuel Additives: Alternative Affirmative
Defense Requirements for Ultra-Low Sulfur Diesel and Gasoline Benzene
Technical Amendment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is issuing a direct final rule to amend the diesel sulfur
regulations to allow refiners, importers, distributors, and retailers
of highway diesel fuel the option to use an alternative affirmative
defense if the Agency finds highway diesel fuel samples above the
specified sulfur standard at retail facilities. This alternative
defense consists of a comprehensive program of quality assurance
sampling and testing that would cover all participating companies that
produce and/or distribute highway diesel fuel if certain other
conditions are met. The sampling and testing program would be carried
out by an independent surveyor. The program would be conducted pursuant
to a survey plan approved by EPA that is designed to achieve the same
objectives as the current regulatory quality assurance requirement.
This rule also amends the gasoline benzene regulations to allow
disqualified small refiners the same opportunity to generate gasoline
benzene credits as that afforded to non-small refiners.
DATES: This rule is effective on July 12, 2010 without further notice,
unless EPA receives adverse comment by June 10, 2010. If EPA receives
adverse comment, we will publish a timely withdrawal in the Federal
Register informing the public that this rule, or the relevant
provisions of this rule, will not take effect. The incorporation by
reference of a certain publication listed in the regulations is
approved by the Director of the Federal Register as of July 12, 2010.
Hearings: If EPA receives a request from a person wishing to speak
at a public hearing by May 26, 2010, a public hearing will be held at a
time and location to be announced in a subsequent Federal Register
notice. To request to speak at a public hearing, send a request to the
contact in FOR FURTHER INFORMATION CONTACT.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2007-1158, by one of the following methods:
https://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: a-and-r-docket@epa.gov.
Fax: (202) 566-9744.
Mail: Air and Radiation Docket, Environmental Protection
Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC
20460.
Hand Delivery: EPA Docket Center, Room 3334, EPA West
Building, 1301 Constitution Avenue, NW., Washington, DC, Attention Air
Docket ID No. EPA-HQ-OAR-2007-1158. Such deliveries are only accepted
during the Docket's normal hours of operation, and special arrangements
should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2007-1158. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The https://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through https://www.regulations.gov, your e-mail address will
automatically be captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air Docket, EPA/DC, EPA
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Air
Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Jaimee Dong, Compliance and Innovative
Strategies Division, Office of Transportation and Air Quality, Office
of Air and Radiation, Environmental Protection Agency, Mail Code 6405J,
1200 Pennsylvania Avenue, Washington, DC 20460; telephone number: (202)
343-9672; fax number: (202) 343-2800; e-mail address:
Dong.Jaimee@epa.gov.
SUPPLEMENTARY INFORMATION:
Why is EPA using a direct final rule?
EPA is publishing this rule without a prior proposed rule because
we view this as a noncontroversial action and anticipate no adverse
comment. However, in the ``Proposed Rules'' section of today's Federal
Register, we are publishing a separate document that will serve as the
proposed rule to amend the diesel sulfur regulations and the gasoline
benzene regulations if adverse comments are received on this direct
final rule. We do not intend to institute a second comment period on
this action. Any parties interested in commenting must do so at this
time. For further information about commenting on this rule, see the
ADDRESSES section of this document.
If EPA receives adverse comment on a distinct provision of this
rulemaking, we will publish a timely withdrawal in the Federal Register
indicating which provisions we are withdrawing. The provisions that are
not withdrawn will become effective on the date set out above,
notwithstanding adverse comment on any other provision. We will address
all public comments in any subsequent final rule based on the proposed
rule.
[[Page 26122]]
Does this action apply to me?
Entities potentially affected by this action include those involved
with the production, importation, distribution, marketing, or retailing
of diesel fuel and production of gasoline. Categories and entities
affected by this action include:
----------------------------------------------------------------------------------------------------------------
NAICS codes Examples of potentially
Category \a\ SIC codes \b\ regulated entities
----------------------------------------------------------------------------------------------------------------
Industry...................................... 324110 2911 Petroleum Refiners.
Industry...................................... 422710 5171 Diesel Fuel Marketers and
Distributors.
Industry...................................... 484220 4212 Diesel Fuel Carriers.
----------------------------------------------------------------------------------------------------------------
\a\ North American Industry Classification System (NAICS).
\b\ Standard Industrial Classification (SIC) system code.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action; however, other types of entities not listed in the table could
also be affected. To determine whether your entity is affected by this
action, you should examine the applicability criteria of parts 79 and
80 of title 40 of the Code of Federal Regulations. If you have any
question regarding applicability of this action to a particular entity,
consult the person in the preceding FOR FURTHER INFORMATION CONTACT
section.
What should I consider as I prepare my comments for EPA?
A. Submitting CBI. Do not submit this information to EPA through
https://www.regulations.gov or e-mail. Clearly mark the information that
you claim to be CBI. For CBI information on a disk or CD ROM that you
mail to EPA, mark the outside of the disk or CD ROM as CBI and then
identify electronically within the disk or CD ROM the specific
information that is claimed as CBI. In addition to one complete version
of the comment that includes information claimed as CBI, a copy of the
comment that does not contain the information claimed as CBI must be
submitted for inclusion in the public docket. Information marked as CBI
will not be disclosed except in accordance with procedures set forth in
40 CFR part 2.
B. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
C. Docket Copying Costs. You may be charged a reasonable fee for
photocopying docket materials, as provided by 40 CFR part 2.
Outline of This Preamble
I. Background
II. Need for Action
III. This Action
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
H. Executive Order 13211: Acts that Significantly Affect Energy
Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations.
K. Congressional Review Act
L. Clean Air Act Section 307(d)
V. Statutory Provisions and Legal Authority
I. Background
The diesel sulfur regulations were designed to ensure widespread
availability of highway diesel fuel containing 15 parts per million
(ppm) sulfur or less by October 2006. Almost all highway diesel engines
produced beginning in 2007 will be equipped with emissions control
systems that are sensitive to sulfur. These vehicles should be fueled
with diesel fuel produced to contain no more than 15 ppm sulfur (called
Ultra-Low Sulfur Diesel or ULSD highway diesel fuel) in order for the
emissions control systems to function properly, and to prevent damage
to the emissions control systems.
The diesel sulfur regulations require refiners, importers,
distributors and retailers who produce, import, sell, store or
transport ULSD highway diesel fuel to meet the standards specified in
the diesel sulfur regulations. Where a violation of the standards is
identified at a retail outlet, the retailer responsible for dispensing
the noncompliant fuel is deemed liable, as well as the refiner(s),
importer(s) and distributor(s) of such fuel. See 40 CFR 80.612(a). In
addition, where the corporate, trade or brand name of a refiner appears
at a retail outlet found to be in violation, that branded refiner is
also deemed liable for the violation. See 40 CFR 80.612(a)(3).
The diesel sulfur regulations further provide, however, that any
person deemed liable can rebut this presumption by establishing an
affirmative defense that includes, among other things, showing that it
conducted a quality assurance sampling and testing program as
prescribed by the regulations. See 40 CFR 80.613(a)(1) and 40 CFR
80.613(d). Branded refiners and importers are not liable if they can
establish, among other things, that the violation was caused by the
action of a third-party distributor or retailer who violated product
handling procedures that were contractually required by the refiner,
despite periodic sampling and testing to ensure compliance with the
contractual obligation.
II. Need for Action
EPA received questions from several large branded refiners of ULSD
highway diesel fuel regarding how EPA would enforce violations of the
downstream sulfur standard in instances where a ULSD highway diesel
fuel sample test result exceeded the downstream standard by an amount
less than the 2
[[Page 26123]]
ppm adjustment factor.\1\ These questions led to discussions between
EPA and the refiners about establishing an optional nationwide sampling
and testing program in which refiners could participate to satisfy the
affirmative defense requirements under Sec. 80.613. This program,
which would be generally modeled on the reformulated gasoline (RFG)
survey program set forth in 40 CFR 80.68, would be conducted by an
independent survey organization following a survey plan approved
annually by EPA, and funded by a consortium of refiners, importers and
distributors.
---------------------------------------------------------------------------
\1\ The diesel sulfur regulations at Sec. 80.580(d) provide for
an adjustment factor to be subtracted from test results for samples
taken downstream of the refinery gate, to account for test
variability. The adjustment factor was 3 ppm prior to October 15,
2008, and is now 2 ppm as of October 15, 2008. Thus, ULSD highway
diesel fuel downstream of the refinery gate would be deemed to be
compliant beginning October 15, 2008 if a test result showed it
contained no more than 17 ppm sulfur. For ease of reference, this
preamble uses the term ``downstream sulfur standard'' to refer to
the 15 ppm standard plus the adjustment factor, i.e. 17 ppm,
beginning October 15, 2008. The term ULSD means diesel fuel subject
to the 15 ppm standard applicable at the refinery gate, and subject
to the downstream sulfur standard of 15 ppm plus the 2 ppm
adjustment factor.
---------------------------------------------------------------------------
For the reasons discussed below, EPA believes it is appropriate to
provide branded refiners or importers who sell ULSD highway diesel fuel
at retail stations with an alternative means of meeting the affirmative
defense requirements in Sec. 80.613. We also believe it is appropriate
to provide this alternative to unbranded refiners and importers, as
well as distributors and retailers. As a result, this rule amends the
diesel sulfur regulations to provide an optional alternative means of
meeting the defense requirements in Sec. 80.613, which will be
available to any refiner, importer, distributor or retailer of ULSD
highway diesel fuel.
We believe that the use of the new alternative quality assurance
compliance program will result in a quality assurance program
equivalent to that currently required under the diesel sulfur
regulations. The provisions in this rule are equivalent to those in an
existing program that was implemented by EPA's Office of Enforcement
and Compliance Assurance in October, 2006 through enforcement
discretion, and which has efficiently provided significant amounts of
statistically valid information on a nationwide basis. Sampling results
from the program (aggregated on a quarterly basis) are available on the
Web site of the Clean Diesel Fuel Alliance at https://www.clean-diesel.org/pump_survey.html. This rule will not have any adverse
environmental impact and will provide refiners, importers and
distributors additional flexibility in complying with the diesel sulfur
regulations.
III. This Action
This action provides refiners, importers, distributors and
retailers of ULSD highway diesel fuel the option of an alternative
defense to liability that consists in part of a nationwide program of
sampling and testing designed to provide oversight of all retail
stations that sell ULSD highway diesel fuel. Under this option, a
refiner, importer, distributor or retailer must participate in an
organization that arranges to have an independent surveyor conduct a
program of compliance surveys pursuant to a survey plan designed to
achieve the same quality assurance objectives as the current regulatory
requirement. A detailed survey plan must be submitted to EPA for
approval by November 1 of the year preceding the year in which the
alternative quality assurance sampling and testing program would be
implemented. The survey plan must include a methodology for determining
when the survey samples will be collected, the locations of the retail
outlets where the samples will be collected, the number of samples to
be included in the survey, and any other elements that EPA determines
are necessary to achieve the same level of quality assurance as the
current requirement.
Under this alternative quality assurance program, the independent
surveyor is required to collect samples of ULSD highway diesel fuel at
retail stations and have the samples tested for sulfur content. This
nationwide sampling and testing program would be designed to ensure
comprehensive geographic coverage of regulated highway diesel fuel sold
at retail outlets, would provide proportionate coverage of such fuel in
three sampling strata, and would be done in accordance with the
provisions in 40 CFR 80.580. These three strata generally refer to: (1)
Densely populated areas, which include Metropolitan Statistical Areas
and the reformulated gasoline control areas; (2) transportation
corridors, which are based on interstate highways outside the densely
populated areas. Transportation corridors include areas immediately
adjacent to the highways themselves and a swath within several miles on
each side of the highway. For any given survey, a certain length of any
specific highway may be deemed appropriate as a sampling unit or
cluster; (3) rural areas, which include all areas not included in the
previous two strata. These areas are subdivided into clusters,
generally based on groupings of counties. The specific criteria used
for selecting sampling areas for each survey plan is subject to EPA
approval.
The surveyor would generate and report summary sulfur content
statistics to EPA each calendar quarter. In addition, where the survey
finds noncompliant samples of ULSD highway diesel fuel, the liable
parties would be responsible for identifying and addressing the root
cause of the violation to prevent future violations.
EPA recognizes that any alternative quality assurance program must
result in the same level of consistency in meeting the ULSD standard
for highway fuel as the current quality assurance requirements. A
sampling and testing program that accomplishes this must both
accurately estimate the proportion of retail stations that sell non-
compliant ULSD highway diesel fuel and provide a credible deterrent to
deliberate or inadvertent violations of downstream enforcement
standards.
While not mutually exclusive, the two overall objectives differ
significantly in how an adequate number of samples for an alternative
quality assurance program is calculated. The amount of sampling needed
to satisfy either objective depends on a number of considerations which
pose separate difficulties for the two objectives. On the one hand, the
amount needed to estimate the proportion of retail stations that sell
non-compliant ULSD highway diesel fuel varies as a function of the
expected underlying proportion of stations selling non-compliant fuel,
the proportion of stations needed to be non-compliant to determine that
fuel is non-compliant, the selected confidence level, and various
sample design parameters. Thus, arriving at the sampling requirement
for determining the proportion of retail stations that sell non-
compliant ULSD highway diesel relies on determining tolerable levels of
non-compliance and confidence that would provide a suitable degree of
accuracy.
On the other hand, the amount of sampling needed to maintain
adequate deterrence rests on sound judgment by experienced field
enforcement personnel based on the attractiveness/profitability of
deliberate violations, the likelihood of inadvertent violations, the
nature of penalty policies, and the speed with which information about
enforcement actions and their outcomes is disseminated throughout the
regulated community. Therefore, deciding how much sampling is needed
for effective deterrence is a less deterministic process.
[[Page 26124]]
For the reasons discussed above, no single statistical formula can
be used exclusively to determine the size of an acceptable sampling
program if both objectives are to be met. The use of a rigorous survey
sampling methodology serves both principal objectives. For non-
compliance estimation purposes, the need for such statistical rigor is
necessary for an accurate measure of the proportion of retail stations
selling non-compliant ULSD highway diesel fuel. Another benefit from
the use of such methodology is that it makes the most efficient use of
limited resources by distributing sampling in a way that no regulated
party can be confident that it will not be sampled and tested.
When a violation occurs, today's rule allows branded refiners that
participate in the consortium to establish a defense for themselves,
and also establish a defense for distributors and retailers that
operate under the branded refiners' trade or brand name under new
provisions in Sec. 80.613(e). Unbranded refiners and distributors that
do not operate under the trade or brand name of a refiner, as well as
distributors that operate under a refiner's trade or brand name but the
refiner has elected to not participate in the consortium, also may use
these new defense provisions by independently participating in the
consortium. In certain situations, a distributor's operations may be
partially under the brand name of a participating refiner and partially
under the brand name of a non-participating refiner or partially not
under the brand name of a refiner. Such distributors, if they seek to
use the alternative defense discussed here, must participate
independently in the consortium to meet their defense requirements
under Sec. 80.613(e) for their operations that are under the brand
name of a non-participating refiner, or operations not under the brand
name of a refiner.
Where the survey association finds a sample of ULSD highway diesel
fuel that exceeds the downstream sulfur standard, participants in the
consortium have different requirements for establishing their defense
under Sec. 80.613(e), depending on the amount of the exceedance. For
exceedances of up to 2 ppm over the downstream standard, consortium
participants will be deemed to have met all of their defense
requirements under Sec. 80.613(e) provided they demonstrate to EPA
that diesel fuel last supplied to the retail station contained no more
than 15 ppm sulfur prior to subtracting the 2 ppm adjustment factor
when dispensed at the supplying terminal, and take several actions,
described in further detail below, to stop distribution of the
violating fuel, to determine why the violation occurred, and to provide
a report to EPA explaining how such violations will be avoided in the
future. However, for exceedances of more than 2 ppm over the downstream
standard, consortium participants must also meet additional defense
requirements as described in further detail below.
EPA chose 2 ppm as a threshold based on past sulfur testing
experience in order to provide an incentive for regulated parties to
participate in the consortium while encouraging participants to take
appropriate steps to comply. Exceedances of more than 2 ppm over the
downstream standard indicate that a regulated party may not have taken
appropriate steps to comply, and that more analysis is required to
determine the cause of the exceedance. The exceedance threshold of 2
ppm is equal to the 2 ppm adjustment factor allowed for downstream
parties in the diesel sulfur regulations. Due to variability in sulfur
test methods, downstream parties are allowed to subtract 2 ppm from
their sulfur test result to determine compliance with the 15 ppm sulfur
standard, which means that a downstream sulfur test result of 17 ppm is
considered to be compliant with the 15 ppm sulfur standard. However, a
test variability of 2 ppm means actual sulfur content may also be 2 ppm
greater than the test result, so if diesel fuel containing 17 ppm
sulfur is tested twice for sulfur, one test result may be 15 ppm and
one test result may be 19 ppm. Thus, if a terminal has a sulfur test
result of 15 ppm for their diesel fuel prior to subtracting the 2 ppm
adjustment factor, it is possible for another party to test the same
diesel fuel and obtain a test result of 19 ppm. Requiring the supplying
terminal to demonstrate that their diesel fuel when tested contained no
more than 15 ppm sulfur prior to subtracting the 2 ppm adjustment
factor means that a retail test result of 19 ppm would show
noncompliance but would still be consistent with other test results
that show compliance under the regulations.
When the survey association finds a sample of ULSD highway diesel
fuel which exceeds the downstream standard by 2 ppm or less, branded
refiners that participate in the consortium must take several actions
to meet all of their defense requirements under Sec. 80.613(e). These
include demonstrating to EPA that diesel fuel last supplied to the
retail station contained no more than 15 ppm sulfur when dispensed at
the supplying terminal, and that best efforts and accepted business
practices are used by downstream parties to avoid diesel fuel
contamination. Also, following notification to the branded refiner by
the survey association of the test result, appropriate steps must be
taken within 24 hours to ensure the diesel fuel is not dispensed into
motor vehicles until remedial action is taken to ensure the fuel sulfur
content is no greater than the applicable downstream standard. This
action may include either shutting down the pumps which supply the
diesel fuel, or placing new labels on the pumps stating they dispense
500 ppm highway diesel fuel rather than 15 ppm highway diesel fuel
(prior to June 1, 2010). Lastly, the branded refiner must submit a
report to EPA within 120 days of the exceedance, which explains the
circumstances and root cause of the exceedance and steps taken to
prevent distribution of noncompliant fuel, and lists actions that will
be taken to prevent future exceedances. The refiner must also provide
EPA with copies of contracts which include the procedures in place to
prevent contamination of ULSD highway diesel fuel. The survey
association must also retest ULSD highway diesel fuel dispensed at the
retail station during its next survey, in addition to its scheduled
sampling.
Unbranded refiners, distributors and retailers that participate in
the consortium have slightly different requirements from branded
refiners for establishing their defense when the survey association
finds a retail sample which exceeds the downstream standard by 2 ppm or
less. Participating unbranded refiners will be deemed to have met all
of their affirmative defense requirements under Sec. 80.613(e) if they
carry out all of the actions listed previously for branded refiners
(except for providing EPA with copies of contracts that include
procedures in place to prevent contamination of ULSD highway diesel
fuel). Participating distributors and retailers will be deemed to have
met all of their defense requirements under Sec. 80.613(e) if they
carry out all of the actions listed previously for branded refiners
(except for providing EPA with copies of contracts that include
procedures in place to prevent contamination of ULSD highway diesel
fuel). Additionally, the retail outlet at which the sample was
collected must have had no previous instances of a tested sample of
ULSD highway diesel fuel exceeding the downstream standard for two
years prior to the exceedance. If a tested sample of ULSD highway
diesel fuel exceeded the downstream standard within the prior two
years, participating distributors and retailers must also meet
[[Page 26125]]
the defense elements under Sec. 80.613(a)(1)(i) and (ii), and Sec.
80.613(c).
When the survey association finds a sample that exceeds the
downstream sulfur standard by more than 2 ppm, under Sec. 80.613(e)
branded refiners must carry out the actions listed previously for
branded refiners. In addition, such branded refiners must also meet the
defense elements in Sec. 80.613(b), such as showing they did not cause
the violation, or that the violation was caused by another person.
Similarly, under Sec. 80.613(e), unbranded refiners, distributors and
retailers must carry out all of the actions listed previously for
branded refiners (except for providing EPA with copies of contracts
that include procedures in place to prevent contamination of ULSD
highway diesel fuel). In addition, such distributors must also meet the
defense elements under Sec. 80.613(a)(1)(i) and (ii), and Sec.
80.613(c).
Use of this alternative affirmative defense and participation in
this quality assurance program is optional, and refiners, importers,
distributors, and retailers may choose to conduct their own quality
assurance program as provided currently in the regulations instead of
participating in this nationwide program. A refiner that does not
participate in the consortium will continue to be subject to the
sampling and testing defense provisions under Sec. 80.613, as will
distributors that operate under such a refiner's trade or brand name
unless such a distributor independently participates in the consortium.
Today's rule also makes one minor correction to the gasoline
benzene regulations clarifying when a small refiner who loses their
small refiner status may generate gasoline benzene credits.
Disqualified small refiners are allowed a grace period of up to 36
months after the date of the disqualifying event to begin meeting the
gasoline benzene standards applicable to non-small refiners. The
gasoline benzene regulations currently prohibit disqualified small
refiners from generating either early or standard gasoline benzene
credits at any of their refineries during this grace period. This
results in limitations on credit generation for disqualified small
refiners that are more stringent than limitations on credit generation
for non-small refiners, which was not EPA's intent. Today's rule amends
the gasoline benzene regulations at Sec. 80.1339(e)(4) to allow
disqualified small refiners the same opportunity to generate gasoline
benzene credits during the grace period as that afforded to non-small
refiners.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action.'' Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under EO 12866 and any changes made in response to OMB
recommendations have been documented in the docket for this action.
B. Paperwork Reduction Act
The information collection requirements in this direct final rule
have been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 2364.03.
This direct final rule provides refiners, importers and
distributors of ULSD highway diesel fuel with additional flexibility to
comply with the diesel sulfur regulations. The flexibility afforded
under this rule is optional. Modest information collection requirements
in the form of reports for noncompliant diesel sulfur samples are
required for those parties who avail themselves of the flexibility
provided in this rule. The information under this rule will be
collected by EPA's Transportation and Regional Programs Division,
Office of Transportation and Air Quality, Office of Air and Radiation
(OAR), and by EPA's Air Enforcement Division, Office of Regulatory
Enforcement, Office of Enforcement and Compliance Assurance (OECA). The
information collected will be used by EPA to evaluate compliance with
the requirements under the diesel sulfur program. This oversight by EPA
is necessary to ensure attainment of the air quality goals of the
diesel sulfur program.
The estimated hourly burden per respondent for the diesel surveys
is 16 hours. The estimated annual hourly burden is 320 hours for all
respondents (assuming 20 respondents per year). The estimated hourly
cost is $71 per hour. The total estimated cost per respondent is
$1,136. The total estimated cost for all respondents is $22,270. Burden
is defined at 5 CFR 1320.3(b).
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a public docket for
this rule, which includes this ICR, under Docket ID number EPA-HQ-OAR-
2007-1158. Submit any comments related to the ICR to EPA and OMB. See
ADDRESSES section at the beginning of this notice for where to submit
comments to EPA. Send comments to OMB at the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street,
NW., Washington, DC 20503, Attention: Desk Office for EPA. Comments
must be submitted on or before July 12, 2010.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's final rule on
small entities, we certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities since the primary
purpose of the regulatory flexibility analyses is to identify and
address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small
[[Page 26126]]
entities if the rule relieves regulatory burden, or otherwise has a
positive economic effect on all of the small entities subject to the
rule.
Today's final rule provides additional flexibility to refiners,
importers, and distributors of diesel fuel by amending the diesel
sulfur regulations to allow a voluntary nationwide sampling and testing
program to be used as an alternative means of meeting the sampling and
testing defense elements under 40 CFR 80.613. Participation in the
program should reduce regulatory burden on all participants. Any small
entities may choose whether or not to join the program. Today's rule
also amends the gasoline benzene regulations to allow disqualified
small refiners the same opportunity to generate gasoline benzene
credits as that afforded to non-small refiners. We have therefore
concluded that today's final rule will relieve the regulatory burden
for all affected small entities.
D. Unfunded Mandates Reform Act
This rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year.
This rule provides refiners, distributors, and importers of diesel fuel
with additional flexibility in complying with regulatory requirements.
As a result, this rule will have the overall effect of reducing the
burden of the diesel sulfur regulations on these regulated parties.
These requirements also codify existing practices designed to ensure
that ULSD highway diesel fuel meets downstream standards. Today's rule
also amends the gasoline benzene regulations to allow disqualified
small refiners the same opportunity to generate gasoline benzene
credits as that afforded to non-small refiners, relieving burden on
small refiners. Thus, this rule is not subject to the requirements of
sections 202 or 205 of UMRA.
This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. The action imposes
no enforceable duty on any State, local or tribal governments.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This rule provides refiners,
distributors, and importers of diesel fuel with additional flexibility
in complying with regulatory requirements. These requirements also
codify existing practices designed to ensure that ULSD highway diesel
fuel meets downstream standards. Today's rule also amends the gasoline
benzene regulations to allow disqualified small refiners the same
opportunity to generate gasoline benzene credits as that afforded to
non-small refiners. The requirements of the rule will be enforced by
the Federal government at the national level. Thus, Executive Order
13132 does not apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule
applies to refiners, distributors, and importers of diesel fuel. This
action contains certain modifications to the federal requirements for
diesel sulfur, and will not impose any enforceable duties on
communities of Indian tribal governments. Today's rule also amends the
gasoline benzene regulations to allow disqualified small refiners the
same opportunity to generate gasoline benzene credits as that afforded
to non-small refiners, and will not impose any enforceable duties on
communities of Indian tribal governments. Thus, Executive Order 13175
does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it does not establish an environmental standard intended
to mitigate health or safety risks.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This rule is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)) because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Further, we have concluded that this
rule is not likely to have any adverse energy effects.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This rule does not involve technical standards. Therefore, EPA did
not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. This is a rule amendment that does not relax the control
measures on sources regulated by the rule and therefore will not cause
emissions increases from these sources.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a
[[Page 26127]]
report containing this rule and other required information to the U.S.
Senate, the U.S. House of Representatives, and the Comptroller General
of the United States prior to publication of the rule in the Federal
Register. A Major rule cannot take effect until 60 days after it is
published in the Federal Register. This action is not a ``major rule''
as defined by 5 U.S.C. 804(2). This rule will be effective July 12,
2010.
L. Clean Air Act Section 307(d)
This rule is subject to Section 307(d) of the CAA. Section
307(d)(7)(B) provides that ``[o]nly an objection to a rule or procedure
which was raised with reasonable specificity during the period for
public comment (including any public hearing) may be raised during
judicial review.'' This section also provides a mechanism for the EPA
to convene a proceeding for reconsideration, ``[i]f the person raising
an objection can demonstrate to the EPA that it was impracticable to
raise such objection within [the period for public comment] or if the
grounds for such objection arose after the period for public comment
(but within the time specified for judicial review) and if such
objection is of central relevance to the outcome of the rule.'' Any
person seeking to make such a demonstration to the EPA should submit a
Petition for Reconsideration to the Office of the Administrator, U.S.
EPA, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460, with a copy to both the person(s) listed in the
preceding FOR FURTHER INFORMATION CONTACT section, and the Director of
the Air and Radiation Law Office, Office of General Counsel (Mail Code
2344A), U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20004.
V. Statutory Provisions and Legal Authority
Regulation of Fuels and Fuel Additives: Alternative Affirmative
Defense Requirements for Ultra-low Sulfur Diesel and Gasoline Benzene
Technical Amendment.
Statutory authority for the fuel controls set in this direct final
rule comes from sections 211 and 301(a) of the CAA.
List of Subjects in 40 CFR Part 80
Environmental protection, Air pollution control, Fuel additives,
Diesel, Gasoline, Imports, Incorporation by reference, Labeling, Motor
vehicle pollution, Penalties, Reporting and recordkeeping requirements.
Dated: May 3, 2010.
Lisa P. Jackson,
Administrator.
0
For the reasons set out in the preamble, part 80 Chapter I, title 40 of
the Code of Federal Regulations is amended as follows:
PART 80--REGULATION OF FUEL AND FUEL ADDITIVES
0
1. The authority citation for part 80 continues to read as follows:
Authority: 42 U.S.C. 7414, 7542, 7545, and 7601(a).
0
2. Section 80.613 is amended by adding paragraph (e) to read as
follows:
Sec. 80.613 What defenses apply to persons deemed liable for a
violation of a prohibited act under this subpart?
* * * * *
(e) Alternative defense requirements. A person deemed liable under
Sec. 80.612(a) for a violation of Sec. 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 Sec. 80.520(a)(1), as adjusted under Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. Sec. 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 29-02[egr]\1\, 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 29-02[egr]\1\ 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:
https://www.archives.gov/federal-register/cfr/ibr-locations.html.
(iv) Provide notice of samples with sulfur content greater than the
15 ppm standard under Sec. 80.520(a)(1), as adjusted under Sec.
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 Sec. 80.520(a)(1), as adjusted under
Sec. 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
[[Page 26128]]
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 Sec. 80.520(a)(1), as adjusted
under Sec. 80.580(d), or for a test result that is one or two ppm
greater than the 15 ppm standard under Sec. 80.520(a)(1), as adjusted
under Sec. 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
Sec. 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 Sec. 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 Sec.
80.520(a)(1) was collected during a survey and determined to have a
sulfur content that exceeds the 15 ppm sulfur standard under Sec.
80.520(a)(1), as adjusted under Sec. 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 Sec.
80.520(a)(1), as adjusted under Sec. 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 Sec. 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:
[GRAPHIC] [TIFF OMITTED] TR11MY10.288
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
5,250.
Z[alpha] = upper percentile point from the normal distribution to
achieve a one-tailed 95% confidence level (5% [alpha]-level). Thus,
Z[alpha] equals 1.645.
Z[beta] = upper percentile point to achieve 95% power. Thus, Z[beta]
equals 1.645.
[phis]l = 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, [phis]l will be 5%.
[phis]o = the underlying proportion of non-compliant stations in a
sample. For calendar year 2011, [phis]owill be 1.9%. For calendar
years 2012 and beyond, [phis]o 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 Sec. 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 Sec. 80.520(a)(1), as adjusted under Sec.
80.580(d). The following provisions apply if the tested sulfur level of
a
[[Page 26129]]
diesel fuel sample collected by the independent survey association is
one or two ppm greater than the 15 ppm standard under Sec.
80.520(a)(1), as adjusted under Sec. 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 Sec. 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 Sec. 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 Sec. 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
Sec. 80.520(a)(1), as adjusted under Sec. 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 Sec. 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 Sec. 80.613(b)(2) or
the specifications or inspections of procedures and equipment described
in Sec. 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 Sec. 80.520(a)(1).
(ii) Unbranded refiner or importer. Any unbranded refiner or
importer that is deemed liable under Sec. 80.612(a) for a violation of
Sec. 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 Sec. 80.520(a)(1), as
adjusted under Sec. 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 Sec. 80.612(a) for a violation of Sec. 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 Sec. 80.520(a)(1), as adjusted under Sec. 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 Sec. 80.520(a)(1),
as adjusted under Sec. 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
