Control of Emissions of Air Pollution From Nonroad Diesel Engines
and Fuel [[pp. 28527-28576]]
[Federal Register: May 23, 2003 (Volume 68, Number 100)]
[Proposed Rules]
[Page 28527-28576]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23my03-40]
[[pp. 28527-28576]]
Control of Emissions of Air Pollution From Nonroad Diesel Engines
and Fuel
[[Continued from page 28526]]
[[Page 28527]]
including any diesel fuel tank bottoms, prior to the point of blending,
sampling and testing in the importer company's refinery operation. The
DTAB may, however, be added to a diesel fuel blending tank where the
diesel fuel tank bottom is not included as part of the batch volume for
the prior batch. In addition, the DTAB may be placed into a storage
tank that contains other DTAB imported by that importer. The DTAB also
may be discharged into a tank containing finished diesel fuel of the
same category as the diesel fuel which will be produced using the DTAB
(e.g., 15 ppm undyed or 15 ppm dyed diesel fuel) provided the blending
process is performed in that same tank.
(e) The company must account for the volume of diesel fuel produced
using DTAB in a manner that excludes the volume of any previously
certified diesel fuel. The diesel fuel tank bottom may not be included
in the company's refinery compliance calculations for that batch of
diesel fuel. This exclusion of previously-accounted-for diesel fuel
must be accomplished using the following approach:
(1) Determine the volume of any tank bottom that is previously
certified diesel fuel before any diesel fuel production begins.
(2) Add the DTAB plus any blendstock to the storage tank, and
completely mix the tank.
(3) Determine the volume and sulfur content of the diesel fuel
contained in the storage tank after blending is complete.
Mathematically subtract the volume of the tank bottom to determine the
volume of the DTAB plus blendstock added, which is reported to EPA as a
batch of diesel fuel produced.
(4) If previously certified diesel fuel having a sulfur content of
15 ppm or less is blended to DTAB, and the combined product after
blending has a sulfur content that exceeds 15 ppm, the refiner must
count the volume of previously certified diesel fuel against its
downgrading limitation under Sec. 80.527.
(5) As an alternative to paragraphs (e)(1) through (e)(4) of this
section, where an importer company has a ``blending'' tank that is used
only to combine DTAB and blending components, and no previously
certified diesel fuel is added to the tank, the importer company, in
its refiner capacity, may account for the diesel fuel produced in such
a blending tank by sampling and testing for the sulfur content of the
batch after DTAB and blendstock are added and mixed, and reporting the
volume of diesel fuel shipped from that tank, up to the point a new
blend is produced by adding new DTAB and blendstock.
(f) The importer must include the volume and sulfur content of each
batch of DTAB in the annual importer reports to EPA, but with a
notation that the batch is not included in the importer compliance
calculations because the product is DTAB. Any DTAB that ultimately is
not used in the importer company's refinery operation (e.g., a tank
bottom of DTAB at the conclusion of the refinery operation), must be
treated as newly imported diesel fuel, for which all required sampling
and testing, and recordkeeping must be accomplished, and included in
the company's importer compliance calculations for the averaging period
when this sampling and testing occurs.
(g) The importer must retain records that reflect the importation,
sampling and testing, and physical movement of any DTAB, and must make
these records available to EPA, on request.
13. A new Sec. 80.513 is added to read as follows:
Sec. 80.513 What provisions apply to transmix processors?
(a) Beginning June 1, 2006, transmix processors may elect to
utilize the provisions of Sec. 80.552(a) in lieu of complying with the
standards of this subpart.
(b) Beginning June 1, 2007, transmix processors may elect to use
the provisions of Sec. 80.554(a) in complying with the standards of
this subpart.
(c) Beginning June 1, 2010, transmix processors may elect to use
the provisions of Sec. 80.554(b) in complying with the standards of
this subpart.
(d) The provisions of paragraphs (a) through (c) apply only to that
volume of fuel produced by transmix processors from previously
certified diesel fuel (PCD) that no longer complies with the applicable
standards (i.e., contaminated product).
14. Section 80.520 is revised to read as follows:
Sec. 80.520 What are the standards and dye requirements for motor
vehicle diesel fuel?
(a) Standards. All motor vehicle diesel fuel is subject to the
following per-gallon standards:
(1) Sulfur content. 15 parts per million (ppm) maximum, except as
provided in paragraph (c) of this section;
(2) Cetane index and aromatic content. (i) A minimum cetane index
of 40; or
(ii) A maximum aromatic content of 35 volume percent.
(b) Dye requirements. (1) All motor vehicle diesel fuel shall be
free of visible evidence of dye solvent red 164 (which has a
characteristic red color in diesel fuel), except for motor vehicle
diesel fuel that is used in a manner that is tax exempt under section
4082 of the Internal Revenue Code. All motor vehicle diesel fuel shall
be free of yellow solvent 124.
(2) Except as provided in Sec. 80.534 and until June 1, 2010 per
Sec. 80.510(c), any diesel fuel that does not show visible evidence of
dye solvent red 164 shall be considered to be motor vehicle diesel fuel
and subject to all the requirements of this subpart for motor vehicle
diesel fuel, except for diesel fuel designated or classified for use
only in:
(i) The State of Alaska as provided under 40 CFR 69.51; or
(ii) Jet aircraft, a research and development testing program
exempted under Sec. 80.600, or motor vehicles covered by an exemption
under Sec. 80.602.
(c) Pursuant and subject to the provisions of Sec. Sec. 80.530-
80.532, 80.552(a), 80.560-80.561, and 80.620, only motor vehicle diesel
fuel produced or imported in full compliance with the requirements of
those provisions is subject to the following per-gallon standard for
sulfur content: 500 ppm maximum.
(d) Kerosene and any other distillate product, that meets the
definition of motor vehicle diesel fuel, is subject to the standards
and requirements under this section.
15. Section 80.521 is revised to read as follows:
Sec. 80.521 What are the standards and identification requirements
for diesel fuel additives?
(a) Except as provided in paragraph (b) of this section, any diesel
fuel additive that is added, intended for adding, used, or offered for
use in diesel fuel subject to the 15 ppm sulfur content standards of
Sec. Sec. 80.510(b) or 80.520(a) at any downstream location must:
(1) Have a sulfur content not exceeding 15 ppm; and
(2) Be accompanied by a product transfer document pursuant to Sec.
80.591 indicating that the additive complies with the 15 ppm standard
for diesel fuel, except for those diesel fuel additives which are only
sold in containers for use by the ultimate consumer of diesel fuel and
which are subject to the requirements of Sec. 80.591(d).
(b) Any diesel fuel additive that is added, intended for adding,
used, or offered for use in diesel fuel subject to the 15 ppm sulfur
content standards of Sec. 80.510(b) or Sec. 80.520(a) may have a
[[Page 28528]]
sulfur content exceeding 15 ppm provided that:
(1) The additive is added or used in the diesel fuel in a quantity
less than 1% by volume of the resultant additive/diesel fuel mixture;
(2) The product transfer document pursuant to Sec. 80.591
indicates that the additive may exceed the 15 ppm sulfur standards of
Sec. 80.510(b) or Sec. 80.520(a), that improper use of the additive
may result in non-complying fuel, and that the additive complies with
the sulfur information requirements of Sec. 80.591(b)(3); and
(3) The additive is not used or intended for use by an ultimate
consumer in diesel motor vehicles or nonroad, locomotive, or marine
engines.
16. Section 80.522 is revised to read as follows:
Sec. 80.522 May used motor oil be dispensed into diesel motor
vehicles or nonroad, locomotive, or marine diesel engines?
No person may introduce used motor oil, or used motor oil blended
with diesel fuel, into the fuel system of model year 2007 or later
diesel motor vehicles or model year 2011 or later nonroad diesel
engines, unless both of the following requirements have been met:
(a) The vehicle or engine manufacturer has received a Certificate
of Conformity under 40 CFR Parts 86 or 89 and the certification of the
vehicle or engine configuration is explicitly based on emissions data
with the addition of motor oil; and
(b) The oil is added in a manner and rate consistent with the
conditions of the Certificate of Conformity.
17. Section 80.523 is revised to read as follows:
Sec. 80.523 What diesel fuel designation requirements apply to
refiners and importers?
Any refiner or importer shall accurately and clearly designate all
fuel it produces or imports for use in diesel motor vehicles as either
motor vehicle diesel fuel meeting the 15 ppm sulfur standard under
Sec. 80.520(a)(1) or as motor vehicle diesel fuel meeting the 500 ppm
sulfur standard under Sec. 80.520(c). Starting June 1, 2007, or June
1, 2006 under the provisions of Sec. 80.535, any refiner or importer
shall accurately and clearly designate all other diesel fuel it
produces or imports as NR diesel fuel, LM diesel fuel, or NRLM diesel
fuel meeting the sulfur standard, if any, applicable to that batch
under this subpart, and any heating oil it produces or imports as
heating oil.
18. Section 80.527 is revised to read as follows:
Sec. 80.527 Under what conditions may motor vehicle or nonroad diesel
fuel subject to the 15 ppm sulfur standard be downgraded as diesel fuel
subject to the 500 ppm sulfur standard?
(a) Definitions. (1) As used in this section, downgrade means
changing the classification of undyed diesel fuel subject to the 15 ppm
sulfur standard under Sec. Sec. 80.523 and 80.510(b) or 80.520(a)(1)
to diesel fuel subject to the 500 ppm sulfur standard under Sec. Sec.
80.510(a) or 80.520(c). A downgrade occurs when the change in
classification takes place. Changing the classification of undyed
diesel fuel subject to the 15 ppm sulfur standard under Sec. Sec.
80.510(b) or 80.520(a)(1) to heating oil is not a downgrade for
purposes of this section and is not limited by the provisions of this
section.
(2) As used in this section undyed diesel fuel means diesel fuel
not containing visible evidence of dye solvent red 164.
(b) Who may downgrade. Any person in the diesel fuel distribution
system who has custody or title to diesel fuel may downgrade it.
(c) Downgrading limitation. (1) Except as provided in paragraphs
(d) and (e) of this section, a person described in paragraph (c)(4) of
this section may not downgrade a total of more than 20% of the undyed
diesel fuel (by volume) that is subject to the 15 ppm sulfur standard
of Sec. Sec. 80.510(b) or 80.520(a)(1) while such person has title to
or custody of such fuel. In addition, a refiner or importer may only
downgrade (subject to the 20% limit) undyed diesel fuel designated
under Sec. 80.523 as subject to 15 ppm sulfur standard under
Sec. Sec. 80.510(b) or 80.520(a)(1) after it has been so designated
and after it has been moved from the refinery's, or import facility's,
storage tank or other vessel where the diesel fuel batch was designated
as subject to the sulfur standard of Sec. 80.520(a) or Sec. 80.510(b)
under Sec. 80.523.
(2) The limitation of paragraph (c)(1) of this section applies
separately to each person who has custody or title of the fuel when it
is downgraded.
(3) Compliance with the limitation of paragraph (c)(1) of this
section shall be on an annual, calendar year basis (except in 2006
compliance shall be for the period June 1, 2006 through December 31,
2006, and in 2010 compliance shall be for the period January 1 through
May 31).
(4) The limitation of this section applies to persons who sell,
offer for sale, dispense, supply, store or transport diesel fuel. The
limitation does not apply to persons who are transferred custody or
title to diesel fuel when it is dispensed into motor vehicles or
nonroad engine equuipment at retail outlets.
(d) Diesel fuel in violation of the 15 ppm standard. Where diesel
fuel subject to the 15 ppm sulfur standard of Sec. Sec. 80.510(b) or
80.520(a)(1) is found to be in violation of any standard under
Sec. Sec. 80.510 (b) or 80.520(a) and is consequently downgraded, the
person, or persons, having custody and title to the fuel at the time it
is found to be in violation must include the volume of such fuel toward
its 20% volume limitation under paragraph (c)(1) of this section,
unless the person, or persons, demonstrates that it did not cause the
violation.
(e) Special provisions for retail outlets and wholesale purchaser-
consumer facilities. Notwithstanding the provisions of paragraph (c)(1)
of this section, retailers and wholesale purchaser-consumers shall
comply with the downgrading limitation as follows:
(1) Retailers and wholesale purchaser-consumers who sell, offer for
sale, or dispense undyed diesel fuel that is subject to the 15 ppm
sulfur standard under Sec. 80.520(a)(1) are exempt from the volume
limitations of paragraph (c)(1) of this section.
(2) A retailer or wholesale purchaser-consumer who does not sell,
offer for sale, or dispense diesel fuel subject to the 15 ppm sulfur
standard under Sec. Sec. 80.510(b) or 80.520(a)(1) may not downgrade a
volume of diesel fuel classified as subject to the 15 ppm sulfur
standard greater than 20% of the total volume of motor vehicle diesel
fuel that it sells, offers for sale, or dispenses annually.
(f) Product transfer documents. If the custody or title to any
diesel fuel that is downgraded under this section is transferred, the
product transfer documents under Sec. 80.590 for such fuel must
reflect the change in classification to diesel fuel subject to the 500
ppm sulfur standard.
(g) Recordkeeping requirement. Any person subject to the provisions
of this section, as described in paragraph (c)(4) of this section, who
downgrades any undyed diesel fuel previously classified as subject to
the 15 ppm sulfur standard under Sec. Sec. 80.510(b) or 80.520(a)(1)
during any calendar year, must make and maintain records sufficient to
show compliance with the requirements and limitations of this section.
(h) Termination of downgrading limitations. The provisions of this
section shall not apply after May 31, 2010.
19. Section 80.530 is revised to read as follows:
[[Page 28529]]
Sec. 80.530 Under what conditions can 500 ppm motor vehicle diesel
fuel be produced or imported?
(a) Beginning June 1, 2006, a refiner or importer may produce or
import motor vehicle diesel fuel subject to the 500 ppm sulfur content
standard of Sec. 80.520(c) if all of the following requirements are
met:
(1) Each batch of motor vehicle diesel fuel subject to the 500 ppm
sulfur content standard must be designated by the refiner or importer
as subject to such standard, pursuant to Sec. 80.523.
(2) The refiner or importer must meet the requirements for product
transfer documents in Sec. 80.590 for each batch subject to the 500
ppm sulfur content standard.
(3)(i) The volume V500 of motor vehicle diesel fuel that is
produced or imported during a compliance period, as provided in
paragraph (a)(5) of this section, may not exceed the following volume
limit:
(A) For compliance periods prior to 2010, 20% of the volume Vt of
motor vehicle diesel fuel that is produced or imported during a
compliance period plus an additional volume of motor vehicle diesel
fuel represented by credits properly generated and used pursuant to the
requirements of Sec. Sec. 80.531 and 80.532.
(B) For the compliance period of January 1, 2010 through May 31,
2010, the volume of motor vehicle diesel fuel represented by credits
properly generated and used pursuant to the requirements of Sec. Sec.
80.531 and 80.532.
(ii) The terms V500 and Vt have the meaning specified in Sec.
80.531(a)(2).
(4) Compliance with the volume limit in paragraph (a)(3) of this
section must be determined separately for each refinery. For an
importer, such compliance must be determined separately for each Credit
Trading Area (as defined in Sec. 80.531) into which motor vehicle
diesel fuel is imported. If a party is both a refiner and an importer,
such compliance shall be determined separately for the refining and
importation activities.
(5) Compliance with the volume limit in paragraph (a)(3) of this
section shall be determined on a calendar year basis, where the
calendar year period is from January 1 through December 31. For the
year 2006, compliance shall be determined for the period June 1, 2006
through December 31, 2006. For the year 2010, compliance shall be
determined for the period of January 1, 2010 through May 31, 2010.
(6) Any motor vehicle diesel fuel produced or imported above the
volume limit in paragraph (a)(3) of this section shall be subject to
the 15 ppm sulfur content standard. However, for any compliance period
prior to and including 2009, a refiner or importer may exceed the
volume limit in paragraph (a)(3) of this section by no more than 5
percent of the volume Vt of diesel fuel produced or imported during the
compliance period, provided that for the immediately following calendar
year:
(i) The refiner or importer complies with the volume limit in
paragraph (a)(3) of this section; and
(ii) The refiner or importer produces or imports a volume of motor
vehicle diesel fuel subject to the 15 ppm sulfur standard, or obtains
credits properly generated and used pursuant to the requirements of
Sec. Sec. 80.531 and 80.532 that represent a volume of motor vehicle
diesel fuel, equal to the volume of the exceedence for the prior
compliance period.
(b) After May 31, 2010, no refiner or importer may produce or
import motor vehicle diesel fuel subject to the 500 ppm sulfur content
standard pursuant to this section.
20. Section 80.531 is amended by revising paragraphs (a)(1) and
(a)(2) to read as follows:
Sec. 80.531 How are motor vehicle diesel fuel credits generated?
(a) * * *
(1) A refiner or importer may generate credits during the period
June 1, 2006 through December 31, 2009, for motor vehicle diesel fuel
produced or imported that is designated as subject to the 15 ppm sulfur
content standard under Sec. 80.520(a)(1). Credits may be generated
only if the volume of motor vehicle diesel fuel designated under Sec.
80.523 as subject to the 15 ppm sulfur standard of Sec. 80.520(a)
exceeds 80% of the total volume of motor vehicle diesel fuel produced
or imported as described in paragraph (a)(2) of this section.
(2) The number of motor vehicle diesel fuel credits generated shall
be calculated for each compliance period (as specified in Sec.
80.530(a)(5)) as follows:
C = V15-(0.80 x Vt)
Where:
C = the positive number of motor vehicle diesel fuel credits generated,
in gallons.
V15 = the total volume in gallons of diesel fuel produced or imported
that is designated under Sec. 80.523 as motor vehicle diesel fuel and
subject to the standards of Sec. 80.520(a) during the compliance
period.
V500 = the total volume in gallons of diesel fuel produced or imported
that is designated under Sec. 80.523 as motor vehicle diesel fuel and
subject to the 500 ppm sulfur standard under Sec. 80.520(c) plus the
total volume of any other diesel fuel (not including V15, diesel fuel
that is dyed in accordance with Sec. 80.520(b) at the refinery or
import facility where the diesel fuel is produced or imported, or that
diesel fuel that is designated as NRLM under Sec. 80.523) represented
as having a sulfur content not exceeding 500 ppm.
Vt = V15 + V500.
* * * * *
21. Section 80.532 is revised to read as follows:
Sec. 80.532 How are motor vehicle diesel fuel credits used and
transferred?
(a) Credit use. Motor vehicle diesel fuel credits generated under
Sec. 80.531 may be used to meet the volume limit of Sec. 80.530(a)(3)
provided that:
(1) The motor vehicle diesel fuel credits were generated and
reported according to the requirements of this subpart; and
(2) The requirements of paragraphs (b), (c), (d), and (e) of this
section are met.
(b) Motor vehicle diesel fuel credits generated under Sec. 80.531
may be used by a refinery or by an importer to comply with Sec. 80.530
by applying one credit for every gallon of motor vehicle diesel fuel
needed to meet compliance with the volume limit of Sec. 80.530(a)(3).
(c) Motor vehicle diesel fuel credits generated may be banked for
use or transfer in a later compliance period or may be transferred to
another refinery or importer for use as provided in paragraph (d) of
this section.
(d) Credit transfers. (1) Motor vehicle diesel fuel credits
obtained from another refinery or from another importer, including
early motor vehicle diesel fuel credits and small refiner motor vehicle
diesel fuel credits as described in Sec. 80.531 (b), (c) (d), and (e),
may be used to satisfy the volume limit of Sec. 80.530(a)(3) if all
the following conditions are met:
(i) The motor vehicle diesel fuel credits were generated in the
same CTA as the CTA in which motor vehicle diesel fuel credits are used
to achieve compliance;
(ii) The motor vehicle diesel fuel credits are used in compliance
with the time period limitations for credit use in this subpart;
(iii) Any credit transfer takes place no later than the last day of
February following the compliance period when the motor vehicle diesel
fuel credits are used;
[[Page 28530]]
(iv) No credit may be transferred more than twice, as follows: The
first transfer by the refiner or importer who generated the credit may
only be made to a refiner or importer who intends to use the credit; if
the transferee cannot use the credit, it may make a second and final
transfer only to a refiner or importer who intends to use the credit.
In no case may a credit be transferred more than twice before being
used or terminated;
(v) The credit transferor must apply any motor vehicle diesel fuel
credits necessary to meet the transferor's annual compliance
requirements before transferring motor vehicle diesel fuel credits to
any other refinery or importer;
(vi) No motor vehicle diesel fuel credits may be transferred that
would result in the transferor having a negative credit balance; and
(vii) Each transferor must supply to the transferee records
indicating the year the motor vehicle diesel fuel credits were
generated, the identity of the refiner (and refinery) or importer who
generated the motor vehicle diesel fuel credits, the CTA of credit
generation, and the identity of the transferring party, if it is not
the same party who generated the motor vehicle diesel fuel credits.
(2) In the case of motor vehicle diesel fuel credits that have been
calculated or created improperly, or are otherwise determined to be
invalid, the following provisions apply:
(i) Invalid motor vehicle diesel fuel credits cannot be used to
achieve compliance with the transferee's volume requirements regardless
of the transferee's good faith belief that the motor vehicle diesel
fuel credits were valid.
(ii) The refiner or importer who used the motor vehicle diesel fuel
credits, and any transferor of the motor vehicle diesel fuel credits,
must adjust their credit records, reports and compliance calculations
as necessary to reflect the proper motor vehicle diesel fuel credits.
(iii) Any properly created motor vehicle diesel fuel credits
existing in the transferor's credit balance after correcting the credit
balance, and after the transferor applies motor vehicle diesel fuel
credits as needed to meet the compliance requirements at the end of the
compliance period, must first be applied to correct the invalid
transfers before the transferor trades or banks the motor vehicle
diesel fuel credits.
(e) Limitations on credit use. (1) Motor vehicle diesel fuel
credits may not be used to achieve compliance with any requirements of
this subpart other than the volume limit of Sec. 80.530(a)(3), unless
specifically approved by the Administrator pursuant to a hardship
relief petition under Sec. 80.560 or Sec. 80.561.
(2) A refiner or importer possessing motor vehicle diesel fuel
credits must use all motor vehicle diesel fuel credits in its
possession prior to applying the credit deficit provisions of Sec.
80.530(a)(6).
(3) No motor vehicle diesel fuel credits may be used to meet
compliance with this subpart subsequent to the compliance period ending
May 31, 2010.
22. A new Sec. 80.533 is added to read as follows:
Sec. 80.533 How does a refiner or importer apply for a non-highway
baseline percentage?
(a) The refiner or importer must submit an application to EPA that
includes the information required under paragraph (c) of this section
by the dates specified in paragraph (f) of this section. A refiner must
apply for a non-highway baseline percentage for each refinery. An
importer must apply for a non-highway baseline percentage for each CTA,
as defined in Sec. 80.531(a)(5), into which it imports NRLM fuel.
(b) The non-highway baseline percentage application must be sent to
the following address: U.S. EPA--Attn: Non-highway Baseline (6406J),
1200 Pennsylvania Avenue, NW, Washington, DC 20460 (regular mail) or
U.S. EPA, Attn: Non-highway Baseline, Transportation and Regional
Programs Division, 501 3rd Street, NW (6406J), Washington, DC 20001
(express mail).
(c) A non-highway baseline percentage application must be submitted
for each refinery or importer and include the following information:
(1) A listing of the names and addresses of all refineries or
importersowned by the corporation for which the refiner or importer is
applying for non-highway baseline percentages.
(2)(i) For refiners or importers, the non-highway baseline
percentage for produced during the three calendar years beginning
January 1 of 2003, 2004, and 2005, as calculated under paragraph (d)(1)
of this section.
(ii) For refiners that so choose, in addition to the baseline
percentage under paragraph (c)(2)(i) of this section, an alternate non-
highway baseline percentage for fuel produced during the period from
June 1, 2006 through May 31, 2007, as calculated under paragraph (d)(2)
of this section.
(3) A letter signed by the president, chief operating officer of
the company, or his/her delegate, stating that the information
contained in the non-highway baseline determination is true to the best
of his/her knowledge.
(4) Name, address, phone number, facsimile number and E-mail
address of a corporate contact person.
(5) For each batch of diesel fuel or heating oil produced or
imported during each 12-month baseline calculation period:
(i) The date that production was completed or importation occurred
for the batch and the batch designation under Sec. 80.523.
(ii) The batch volume; and
(iii) Whether the batch was dyed or not dyed, and if not dyed,
whether the batch was exempt from the dye provisions of Sec.
80.520(b)(2) and not defined as motor vehicle diesel fuel.
(6) Other appropriate information as requested by EPA.
(d) Calculation of the Non-Highway Baseline Percentage, B%. (1)
Under paragraph (c)(2)(i) of this section, B% equals the average annual
volume of diesel fuel and heating oil produced or imported during the
three baseline calendar years that was dyed with solvent red 164 (or if
exempt from the dye provision of Sec. 80.520(b)(2), does not meet the
definition of motor vehicle diesel fuel) divided by the total volume of
diesel fuel and heating oil produced or imported during this period,
multiplied by 100.
(2) Under paragraph (c)(2)(ii) of this section, B% equals the
average annual volume of diesel fuel and heating oil produced during
the period from June 1, 2006 through May 31, 2007 that was dyed with
solvent red 164 (or if exempt from the dye provision of Sec.
80.520(b)(2), does not meet the definition of motor vehicle diesel
fuel) divided by the total volume of diesel fuel and heating oil
produced during this period, multiplied by 100.
(3) For purposes of this section, fuel produced for export, jet
fuel (JetA), and fuel specifically produced to meet military
specification (such as JP-4, JP-8, and F-76), shall not be included in
baseline calculations.
(e) Refineries that did not produce or import facilities that did
not import diesel fuel for at least 12 months during the period from
January 1, 2003 through December 31, 2005 shall be assigned a non-
highway baseline percentage based on their location, as specified in
the following table:
[[Page 28531]]
[In percentages]
----------------------------------------------------------------------------------------------------------------
Oregon and
PADD 1 PADD 2 PADD 3 PADD 4 Washington Alaska Hawaii i California
----------------------------------------------------------------------------------------------------------------
41 20 26 13 21 68 40 0
----------------------------------------------------------------------------------------------------------------
(f)(1) Applications submitted under paragraph (c)(2)(i) of this
section must be postmarked by February 28, 2006.
(2) Applications submitted under paragraph (c)(2)(ii) of this
section must be postmarked by August 1, 2007.
(g)(1) For applications submitted under paragraph (c)(2)(i) of this
section, EPA will notify refiners or importers by June 1, 2006 of
approval of the baselines for each of the refiner's refineries or
importer's import facilities or of any deficiencies in the refiner's or
importer's application.
(2) For applications submitted under paragraph (c)(2)(ii) of this
section, EPA will notify refiners by December 1, 2007 regarding
approval of the baselines for each of the refiner's refineries or of
any deficiencies in the refiner's application.
(g) If at any time the non-highway baseline percentage submitted in
accordance with the requirements of this section is determined to be
incorrect, EPA will notify the refiner of the corrected baseline.
23. A new Sec. 80.534 is added to read as follows:
Sec. 80.534 Use of the non-highway baseline percentage.
(a) Beginning June 1, 2007--or June 1, 2006 pursuant to the
provisions of Sec. 80.535(a)--and until June 1, 2010, a refiner or
importer may use the following provisions in lieu of the dye
requirements of Sec. 80.520(b) if it has an EPA-approved non-highway
baseline percentage under Sec. 80.533.
(1) A refiner or importer must notify EPA of its intention to use
these provisions by April 1, 2006, or by April 1 of any subsequent year
during which it intends to use the these provisions for the first time.
(2) A separate notification is required for each refinery or each
importer by the CTA into which it imports NRLM diesel fuel.
(3) The decision to use or not use these provisions shall apply for
the entire calculation period, as defined below, and for the refinery's
entire production volume or for the importer's entire import volume by
the CTA into which it imports NRLM fuel.
(4) EPA will presume no change from the previous year in the
refiner's or importer's decision to use or not use these provisions
unless the refiner or importer notifies EPA by April 1 of any year
during which such a change would apply.
(b) For purposes of this section:
(1) ``Calculation period'' means a 12-month period from June 1
through May 31 beginning in 2007, 2008, or 2009.
(2) ``Vtotal'' means the total volume of diesel fuel and heating
oil produced or imported during a calculation period by a refinery or
importer CTA, respectively.
(3) ``Vmarked'' means the total volume of heating oil produced or
imported and marked with solvent yellow 124 by the refiner or importer
pursuant to Sec. 80.510(c) during a calculation period.
(4) ``B%'' is the non-highway baseline percentage approved by EPA
for a refinery or importer CTA pursuant to Sec. 80.533(d).
(5) ``Vnrlm'' = (Vtotal x B%/100)-Vmarked).
(6) ``Vmotorvehicle'' = Vtotal * (100%-B%)/100.
(c) For each calculation period:
(1) The total volume of diesel fuel designated as NRLM (including
both 500 ppm diesel fuel and any high sulfur diesel fuel produced
pursuant to the provisions of Sec. Sec. 80.535 and 80.536) whether
dyed or undyed may not be greater than Vnrlm.
(2) The volume of diesel fuel designated by a refiner or importer
as motor vehicle diesel fuel pursuant to Sec. 80.523 shall not be less
than Vmotorvehicle.
(d)(1) All the requirements of this subpart applicable to motor
vehicle diesel fuel shall apply to diesel fuel designated as motor
vehicle diesel fuel under the provisions of this section. Except for
the provisions of Sec. 80.510(c) concerning solvent red 164, all the
requirements of this subpart applicable to nonroad, locomotive and
marine diesel fuel shall apply to diesel fuel designated as NRLM diesel
fuel under the provisions of this section.
(2) Diesel fuel designated as motor vehicle diesel fuel and diesel
fuel designated as NRLM diesel fuel under the provisions of this
section may be mixed after they have been designated, or may remain
commingled if designated without the fuels being physically separated,
as long as the resulting fuel or mixture of fuels complies with all of
the requirements that were applicable to each batch contained in the
mixture.
24. A new Sec. 80.535 is added to read as follows.
Sec. 80.535 How are nonroad, locomotive and marine (NRLM) diesel fuel
credits generated?
(a) Generation of high sulfur NRLM credits from June 1, 2006
through May 31, 2007. (1) During the period June 1, 2006 through May
31, 2007, a refiner or importers may generate credits pursuant to the
provisions of this section if all of the following conditions are met:
(i) The refiner or importer notifies EPA of its intention to
generate credits and the period during which it will generate credits.
This notification must be received by EPA at least 120 calendar days
prior to the date it begins generating credits under this section;
(ii) Each batch or partial batch of NRLM diesel fuel for which
credits are claimed shall be subject to all of the provisions of this
subpart for NRLM diesel fuel as if it had been produced after June 1,
2007 and before June 1, 2010.
(iii) The number of nonroad high-sulfur credits (HSC) in gallons
that are generated shall be a positive number.
(2) The refiner or importer shall choose one of the following
methods for calculating credits for each calculation period.
(i) For fuel that is dyed per the requirements of Sec.
80.510(c)(1)(i), HSC equals the volume of fuel in gallons produced or
imported during the period identified in paragraph (a)(1)(i) of this
section that is designated as NRLM diesel fuel and that is subject to
and complies with the provisions of Sec. 80.510(a); or
(ii) For dyed or undyed fuel that complies with the provisions of
Sec. 80.534 for a calculation period of June 1, 2006 through May 31,
2007, determine HSC as follows:
HSC = V510 + V520-Vmotorvehicle
Where:
V510 = The total volume of fuel produced or imported during
the period identified in paragraph (a)(1)(i) of this section that
complies with the standards of Sec. 80.510(a) or (b).
V520 = The total volume of fuel produced or imported during
the period identified in paragraph (a)(1)(i) of this section that
complies
[[Page 28532]]
with the standards of Sec. 80.520(a) or (c).
Vmotorvehicle = Vtotal * (100%-B%)/100.
(3) High-sulfur nonroad credits shall be generated and designated
as follows:
(i) Credits shall be generated separately for each importer by CTA
or each refinery of a refiner.
(ii) Credits may not be generated by both a foreign refiner and by
an importer for the same motor vehicle diesel fuel.
(iii) Credits shall not be generated under both Sec. 80.531 and
this section for the same diesel fuel.
(iv) Any credits generated by a foreign refiner shall be generated
as provided in Sec. 80.620(c) and this section.
(4) No credits may be generated under this paragraph after May 31,
2007.
(5) The refiner or importer must submit a report to the
Administrator no later than July 31, 2007. The report must demonstrate
that all the nonroad, locomotive, and marine diesel fuel produced or
imported which generated credits met the applicable requirements of
paragraphs (a)(1) through (a)(4) of this section. If the Administrator
finds that such credits did not in fact meet the requirements of
paragraphs (a)(1) through (a)(4) of this section, as applicable, or if
the Administrator determines that there is insufficient information to
determine the validity of such credits, the Administrator may deny the
credits submitted in whole or in part.
(b) Generation of high-sulfur NRLM credits by small refiners from
June 1, 2006 through May 31, 2010. (1) Notwithstanding the dates
specified in paragraph (a) of this section, a refiner that is approved
by the EPA as a small refiner under Sec. 80.551 may generate credits
under paragraph (a) of this section during any calculation period
beginning June 1 of 2006, 2007, 2008, or 2009 for diesel fuel produced
or imported that is designated as NRLM diesel fuel and complies with
the provisions of Sec. 80.510(a).
(2) The small refiner must submit a report to the Administrator no
later than July 31 after the end of each calculation period during
which credits were generated. The report must demonstrate that all the
NRLM diesel fuel produced or imported which generated credits met the
applicable requirements of paragraphs (a)(1) through (a)(4) of this
section. If the Administrator finds that such credits did not in fact
meet the requirements of paragraphs (a)(1) through (a)(4) of this
section, as applicable, or if the Administrator determines that there
is insufficient information to determine the validity of such credits,
the Administrator may deny the credits submitted in whole or in part.
(3) In addition, a foreign refiner that is approved by the
Administrator to generate credits under Sec. 80.554 shall comply with
the requirements of Sec. 80.620.
(c) Generation of 500 ppm nonroad credits from June 1, 2009 through
May 31, 2010. (1) During the calculation period of June 1, 2009 through
May 31, 2010, a refiner or importer may generate credits pursuant to
the provisions of this section if all of the following conditions are
met:
(i) The refiner or importer notifies EPA of its intention to
generate credits and the period during which it will generate credits.
This notification must be received by EPA at least 120 calendar days
prior to the date it begins generating credits under this section;
(ii) Each batch or partial batch of NRLM diesel fuel for which
credits are claimed shall be subject to all of the provisions of this
subpart for NR diesel fuel as if it had been produced after June 1,
2010.
(iii) The number of 500 ppm nonroad credits in gallons that are
generated, C500, shall be a positive number calculated as follows:
C500 = V15-[(100%-B%)/100 x Vtotal]
Where:
V15 = The total volume in gallons of 15 ppm diesel fuel produced or
imported during the period stated under paragraph (c)(1)(i) of this
section that is designated as either motor vehicle diesel fuel or
nonroad diesel fuel.
Vtotal= As defined in Sec. 80.534.
B% = As determined in Sec. 80.534.
(2) 500 ppm nonroad credits shall be generated and designated as
follows:
(i) Credits shall be generated separately for each importer by CTA
or each refinery of a refiner.
(ii) Credits may not be generated by both a foreign refiner and by
an importer for the same diesel fuel.
(iii) Credits shall not be generated under both Sec. 80.531 and
this section for the same diesel fuel.
(iv) Any credits generated by a foreign refiner shall be generated
as provided in Sec. 80.620(c) and this section.
(3) No credits may be generated under this paragraph after May 31,
2010.
(4) The refiner or importer must submit a report to the
Administrator no later than July 31, 2010. The report must demonstrate
that all the 15 ppm NR diesel fuel produced or imported which generated
credits met the applicable requirements of paragraphs (c)(1) through
(c)(4) of this section. If the Administrator finds that such credits
did not in fact meet the requirements of paragraphs (c)(1) through
(c)(4) of this section, as applicable, or if the Administrator
determines that there is insufficient information to determine the
validity of such credits, the Administrator may deny the credits
submitted in whole or in part.
(d) Generation of 500 ppm nonroad credits by small refiners from
June 1, 2009 through May 31, 2012. (1) Notwithstanding the dates
specified in paragraph (c) of this section, a refiner that is approved
by the EPA as a small refiner under Sec. 80.551 may generate credits
under paragraph (c) of this section during any calculation period
beginning June 1 of 2009, 2010, or 2011 for diesel fuel produced or
imported that is designated as NR diesel fuel and complies with the
provisions of Sec. 80.510(a).
(2) The small refiner must submit a report to the Administrator no
later than July 31 after the end of each calculation period during
which credits were generated. The report must demonstrate that all the
15 ppm NR diesel fuel produced or imported for which credits were
generated met the applicable requirements of paragraphs (c)(1) through
(c)(3) of this section. If the Administrator finds that such credits
did not in fact meet the requirements of paragraphs (c)(1) through
(c)(3) of this section, as applicable, or if the Administrator
determines that there is insufficient information to determine the
validity of such credits, the Administrator may deny the credits
submitted in whole or in part.
(3) In addition, a foreign refiner that is approved by the
Administrator to generate credits under Sec. 80.554 shall comply with
the requirements of Sec. 80.620.
25. A new Sec. 80.536 is added to read as follows:
Sec. 80.536 How are nonroad, locomotive, and marine diesel fuel
credits used and transferred?
(a) Credit use. Credits generated under Sec. 80.535(a) and (b) may
be used to meet the nonroad, locomotive, and marine NRLM diesel fuel
sulfur standard of Sec. 80.510(a), and credits generated under Sec.
80.535(c) and (d) may be used to meet the NR diesel fuel sulfur
standard of Sec. 80.510(b), provided that:
(1) The credits were generated and reported according to the
requirements of this subpart; and
(2) The requirements of paragraphs (b), (c), (d), (e), (f), and (g)
of this section are met.
[[Page 28533]]
(b) Credits generated under Sec. 80.535 may be used by a refinery
or an importer to comply with the diesel fuel standards of Sec.
80.510(a) and (b) by applying one credit for every gallon of diesel
fuel that does not comply with the applicable standard.
(c) Credits generated may be banked for use at a later time or may
be transferred to any other refinery or importer nationwide for use as
provided in paragraph (d) of this section.
(d) Credit transfers. (1) Credits generated under Sec. 80.535 that
are obtained from another refinery or importer may be used to comply
with the diesel fuel sulfur standards of Sec. 80.510(a) and (b) if all
the following conditions are met:
(i) The credits are used in compliance with the time period
limitations for credit use in this subpart;
(ii) Any credit transfer is completed no later than the last day of
February following the calendar year when the credits are used to
comply with a standard under paragraph (a) of this section;
(iii) No credit is transferred more than twice, as follows: The
first transfer by the refiner or importer who generated the credit may
only be made to a refiner or importer that intends to use the credit;
if the transferee cannot use the credit, it may make a second and final
transfer only to a refiner or importer who intends to use the credit.
In no case may a credit be transferred more than twice before it is
used or it expires;
(iv) The credit transferor applies any credits necessary to meet
the transferor's annual compliance requirements before transferring
credits to any other refinery or importer;
(v) No credits are transferred that would result in the transferor
having a negative credit balance; and
(vi) Each transferor supplies to the transferee records indicating
the year the credits were generated, the identity of the refiner (and
refinery) or importer that generated the credits, and the identity of
the transferor, if it is not the same party that generated the credits.
(2) In the case of credits that have been calculated or created
improperly, or are otherwise determined to be invalid, the following
provisions apply:
(i) Invalid credits cannot be used to achieve compliance with the
transferee's volume requirements regardless of the transferee's good
faith belief that the credits were valid.
(ii) The refiner or importer that used the credits, and any
transferor of the credits, must adjust its credit records, reports and
compliance calculations as necessary to reflect the proper credits.
(iii) Any properly created credits existing in the transferor's
credit balance after correcting the credit balance, and after the
transferor applies credits as needed to meet the compliance
requirements at the end of the calendar year, must first be applied to
correct the invalid transfers before the transferor trades or banks the
credits.
(e) Limitations on credit use. (1) Credits may not be used to
achieve compliance with any requirements of this subpart other than the
standards of Sec. 80.510(a) and (b), unless specifically approved by
the Administrator pursuant to a hardship relief petition under Sec.
80.560 or Sec. 80.561.
(2) No credits may be used after May 31, 2012.
(f) Use of high sulfur NRLM credits. (1) High sulfur nonroad
credits (HSC) generated under Sec. 80.535(a) or (b) may be used on a
one for one basis to meet the NRLM diesel fuel sulfur standard of Sec.
80.510(a) from June 1, 2007 through May 31, 2010 subject to the
following restrictions. Any high sulfur NRLM diesel fuel produced after
June 1, 2007 through the use of credits must:
(i) Be dyed red per the provisions of Sec. 80.510(c)(1)(i) at the
point of production, importation, or redesignation under Sec.
80.511(c);
(ii) Be associated with a product transfer document that bears a
unique product code as specified in Sec. 80.590;
(iii) Be segregated in the distribution system from any 15 ppm
sulfur diesel fuel throughout the distribution system to the end-user;
and
(iv) Be segregated from any 500 ppm sulfur diesel fuel in the
distribution system up to the point where both fuels are dyed red per
Internal Revenue Service Code (26 U.S.C. 4082).
(2) No high sulfur NRLM credits may be used subsequent to the
compliance period ending May 31, 2010.
(3) Any high sulfur NRLM credits not used under the provisions of
paragraph (f)(1) may be converted into 500 ppm nonroad credits on a one
for one basis.
(g) Use of 500 ppm nonroad credits. (1) 500 ppm nonroad credits
(C500) generated under Sec. 80.535(c) or (d) or converted from high
sulfur nonroad credits under paragraph (f)(3) of this section may be
used on a one for one basis to meet the NR diesel fuel sulfur standard
of Sec. 80.510(b) from June 1, 2010 through May 31, 2012, subject to
the restrictions in paragraphs (g)(2) and (g)(3) of this section.
(2) Any 500 ppm nonroad diesel fuel produced or imported after June
1, 2010 through the use of these credits would have to:
(i) Be dyed red per the provisions of Sec. 80.510(c)(1)(i) at the
point of production, importation, or redesignation under Sec.
80.511(c);
(ii) Bear a unique product code as specified in Sec. 80.590; and
(iii) Be segregated in the distribution system from any 15 ppm
sulfur diesel fuel or 500 ppm sulfur locomotive and marine diesel fuel
throughout the distribution system to the end-user.
(3) Refiners or importers wishing to produce or import 500 ppm
sulfur nonroad diesel fuel and sell it as nonroad diesel fuel after May
31, 2010 would first have to provide EPA with a plan for EPA approval
demonstrating that they will ensure the product segregation described
in paragraph (g)(2)(iii) of this section.
(4) No 500 ppm sulfur credits may be used after May 31, 2012.
26. Section 80.550 is revised to read as follows:
Sec. 80.550 What is the definition of a motor vehicle diesel fuel
small refiner or a NRLM diesel fuel small refiner under this subpart?
(a) A motor vehicle diesel fuel small refiner is defined as any
person, as defined by 42 U.S.C. 7602(e), who:
(1) Produces diesel fuel at a refinery by processing crude oil
through refinery processing units; and
(2) Employed an average of no more than 1,500 people, based on the
average number of employees for all pay periods from January 1, 1999,
to January 1, 2000; and
(3) Had an average crude capacity less than or equal to 155,000
barrels per calendar day (bpcd) for 1999; or
(4) Has been approved by EPA as a small refiner under Sec. 80.235
and continues to meet the criteria of a small refiner under Sec.
80.225.
(b) A NRLM diesel fuel small refiner is defined as any person, as
defined by 42 U.S.C. 7602(e), who:
(1) Produces diesel fuel at a refinery by processing crude oil
through refinery processing units; and
(2) Employed an average of no more than 1,500 people, based on the
average number of employees for all pay periods from January 1, 2002,
to January 1, 2003; and
(3) Had an average crude capacity less than or equal to 155,000
barrels per calendar day (bpcd) for 2002.
(c) For the purpose of determining the number of employees and
crude capacity under paragraph (a) of this section:
(1) The refiner shall include the employees and crude capacity of
any subsidiary companies, any parent company and subsidiaries of the
parent company in which the parent has 50% or greater ownership, and
any joint venture partners.
[[Page 28534]]
(2) For any refiner owned by a governmental entity, the number of
employees and total crude capacity as specified in paragraph (a) of
this section shall include all employees and crude production of the
government to which the governmental entity is a part.
(3) Any refiner owned and controlled by an Alaska Regional or
Village Corporation organized pursuant to the Alaska Native Claims
Settlement Act (43 U.S.C. 1601--1629) is not considered an affiliate of
such entity, or with other concerns owned by such entity solely because
of their common ownership.
(d) For the purpose of determining the number of employees and
crude capacity under paragraph (b) of this section:
(1) The refiner shall include the employees and crude capacity of
any subsidiary companies, any parent company and subsidiaries of the
parent company in which the parent has 50% or greater ownership, and
any joint venture partners.
(2) For any refiner owned by a governmental entity, the number of
employees and total crude capacity as specified in paragraph (b) of
this section shall include all employees and crude production of the
government to which the governmental entity is a part.
(3) Any refiner owned and controlled by an Alaska Regional or
Village Corporation organized pursuant to the Alaska Native Claims
Settlement Act (43 U.S.C. 1601--1629) is not considered an affiliate of
such entity, or with other concerns owned by such entity solely because
of their common ownership.
(e)(1) Notwithstanding the provisions of paragraph (a) of this
section, a refiner that acquires a refinery after January 1, 2000, or
reactivates a refinery that was shut down or was non-operational
between January 1, 1999, and January 1, 2000, may apply for motor
vehicle diesel fuel small refiner status in accordance with the
provisions of Sec. 80.551(c)(1)(ii).
(2) Notwithstanding the provisions of paragraph (b) of this
section, a refiner that acquires a refinery after January 1, 2003, or
reactivates a refinery that was shutdown or was non-operational between
January 1, 2002, and January 1, 2003, may apply for NRLM diesel fuel
small refiner status in accordance with the provisions of Sec.
80.551(c)(2)(ii).
(f) Ineligible parties. The following are ineligible for the small
refiner provisions:
(1)(i) For motor vehicle diesel fuel, refiners with refineries
built or started up after January 1, 2000;
(ii) For NRLM diesel fuel, refiners with refineries built or
started up after January 1, 2002;
(2)(i) For motor vehicle diesel fuel, persons who exceed the
employee or crude oil capacity criteria under this section on January
1, 2000, but who meet these criteria after that date, regardless of
whether the reduction in employees or crude oil capacity is due to
operational changes at the refinery or a company sale or
reorganization;
(ii) For NRLM diesel fuel, persons who exceed the employee or crude
oil capacity criteria under this section on January 1, 2003, but who
meet these criteria after that date, regardless of whether the
reduction in employees or crude oil capacity is due to operational
changes at the refinery or a company sale or reorganization;
(3) Importers; and
(4) Refiners who produce motor vehicle diesel fuel or NRLM diesel
fuel other than by processing crude oil through refinery processing
units.
(g)(1)(i) Refiners who qualify as motor vehicle diesel fuel small
refiners under this section and subsequently employ more than 1,500
people as a result of merger with or acquisition of or by another
entity, or exceed the 155,000 bpcd crude capacity limit as a result of
merger with or acquisition of or by another entity after January 1,
2004, are disqualified as small refiners. If this occurs, the refiner
shall notify EPA in writing no later than 20 days following this
disqualifying event.
(ii) Except as provided under paragraph (g)(3) of this section, any
refiner whose status changes under this paragraph shall meet the
applicable standards of Sec. 80.520 within a period of up to 24 months
of the disqualifying event for any of its refineries that were
previously subject to the small refiner standards of Sec. 80.552, but
no later than May 31, 2010.
(2)(i) Refiners who qualify as NRLM diesel fuel small refiners
under this section and subsequently employ more than 1,500 people as a
result of merger with or acquisition of or by another entity, or exceed
the 155,000 bpcd crude capacity limit as a result of merger with or
acquisition of or by another entity after January 1, 2004, are
disqualified as small refiners. If this occurs, the refiner shall
notify EPA in writing no later than 20 days following this
disqualifying event.
(ii) Except as provided under paragraph (g)(3) of this section, any
refiner whose status changes under this paragraph shall meet the
applicable standards of Sec. 80.510 within a period of up to 24 months
of the disqualifying event for any of its refineries that were
previously subject to the small refiner standards of Sec. 80.552, but
no later than the dates specified in Sec. Sec. 80.554(a) or 80.554(b),
as applicable.
(3) A refiner may apply to EPA for additional time to comply with
the standards of Sec. Sec. 80.520 or 80.510 if more than 24 months
would be required for the necessary engineering, permitting,
construction, and start-up work to be completed. Such applications must
include detailed technical information supporting the need for
additional time and a proposed amount of additional time. EPA will base
a decision to approve additional time on information provided by the
refiner and on other relevant information. In no case will EPA extend
the compliance date beyond May 31, 2010 for a motor vehicle diesel fuel
small refiner or beyond the dates specified in Sec. Sec. 80.554(a) or
80.554(b), as applicable, for a NRLM diesel fuel small refiner.
27. Section 80.551 is revised to read as follows:
Sec. 80.551 How does a refiner obtain approval as a small refiner
under this subpart?
(a)(1)(i) Applications for motor vehicle diesel fuel small refiner
status must be submitted to EPA by December 31, 2001.
(ii) Applications for NRLM diesel fuel small refiner status must be
submitted to EPA by December 31, 2004.
(2)(i) In the case of a refiner who acquires a refinery after
January 1, 2000, or reactivates a refinery that was shutdown between
January 1, 1999, and January 1, 2000, the application for motor vehicle
diesel fuel small refiner status must be submitted to EPA by June 1,
2003.
(ii) In the case of a refiner who acquires a refinery after January
1, 2003, or reactivates a refinery that was shutdown between January 1,
2002, and January 1, 2003, the application for NRLM diesel fuel small
refiner status must be submitted to EPA by June 1, 2006.
(b) Applications for small refiner status must be sent via
certified mail with return receipt or express mail with return receipt
to: U.S. EPA--Attn: Diesel Small Refiner Status (6406J), 1200
Pennsylvania Avenue, NW (6406J), Washington, DC 20460 (certified mail/
return receipt) or Attn: Diesel Small Refiner Status, Transportation
and Regional Programs Division (6406J), 501 3rd Street, NW, Washington,
DC 20001 (express mail/return receipt).
(c) The small refiner status application must contain the following
information for the company seeking small refiner status, plus any
subsidiary companies, any parent company and subsidiaries of the parent
company in
[[Page 28535]]
which the parent has 50% or greater ownership, and any joint venture
partners:
(1) For motor vehicle diesel fuel small refiners:
(i) A listing of the name and address of each location where any
employee worked during the 12 months preceding January 1, 2000; the
average number of employees at each location based upon the number of
employees for each pay period for the 12 months preceding January 1,
2000; and the type of business activities carried out at each location;
or
(ii) In the case of a refiner who acquires a refinery after January
1, 2000, or reactivates a refinery that was shutdown between January 1,
1999, and January 1, 2000, a listing of the name and address of each
location where any employee of the refiner worked since the refiner
acquired or reactivated the refinery; the average number of employees
at any such acquired or reactivated refinery during each calendar year
since the refiner acquired or reactivated the refinery; and the type of
business activities carried out at each location.
(2) For NRLM diesel fuel small refiners:
(i) A listing of the name and address of each location where any
employee worked during the 12 months preceding January 1, 2003; the
average number of employees at each location based upon the number of
employees for each pay period for the 12 months preceding January 1,
2003; and the type of business activities carried out at each location;
or
(ii) In the case of a refiner who acquires a refinery after January
1, 2003, or reactivates a refinery that was shutdown between January 1,
2002, and January 1, 2003, a listing of the name and address of each
location where any employee of the refiner worked since the refiner
acquired or reactivated the refinery; the average number of employees
at any such acquired or reactivated refinery during each calendar year
since the refiner acquired or reactivated the refinery; and the type of
business activities carried out at each location.
(3) The total corporate crude capacity of each refinery as reported
to the Energy Information Administration (EIA) of the U.S. Department
of Energy (DOE) for the most recent 12 months of operation. The
information submitted to EIA is presumed to be correct. In cases where
a company disagrees with this information, the company may petition EPA
with appropriate data to correct the record when the company submits
its application for small refiner status. EPA may accept such alternate
data at its discretion.
(4) For motor vehicle diesel fuel, an indication of whether the
refiner, for each refinery, is applying for:
(i) The ability to produce motor vehicle diesel fuel subject to the
500 ppm sulfur content standard under Sec. 80.520(c) or generate
credits under Sec. 80.531, pursuant to the provisions of Sec.
80.552(a) or (b); or
(ii) An extension of the duration of its small refiner gasoline
sulfur standard under Sec. 80.553, pursuant to the provisions of Sec.
80.552(c).
(5) For NRLM diesel fuel, an indication of whether the refiner, for
each refinery, is applying for:
(i) The ability delay compliance under Sec. 80.554(a) or (b) or to
generate NRLM diesel sulfur credits under Sec. 80.535, pursuant to the
provisions of Sec. 80.554(c); or
(ii) An adjustment to its small refiner gasoline sulfur standard
under Sec. 80.240(a), pursuant to the provisions of Sec. 80.554(d).
(6) A letter signed by the president, chief operating or chief
executive officer of the company, or his/her designee, stating that the
information contained in the application is true to the best of his/her
knowledge.
(7) Name, address, phone number, facsimile number and e-mail
address (if available) of a corporate contact person.
(d) For joint ventures, the total number of employees includes the
combined employee count of all corporate entities in the venture.
(e) For government-owned refiners, the total employee count
includes all government employees.
(f) Approval of small refiner status for refiners who apply under
Sec. 80.550(e) will be based on all information submitted under
paragraph (c) of this section, except as provided in Sec. 80.550(e).
(g) EPA will notify a refiner of approval or disapproval of small
refiner status by letter. If disapproved, the refiner must comply with
the sulfur standards in Sec. 80.520 or Sec. 80.510, as appropriate,
except as otherwise provided in this subpart.
(h) If EPA finds that a refiner provided false or inaccurate
information on its application for small refiner status, upon notice
from EPA the refiner's small refiner status will be void ab initio.
(i) Upon notification to EPA, an approved small refiner may
withdraw its status as a small refiner. Effective on January 1 of the
year following such notification, the small refiner will become subject
to the sulfur standards in Sec. 80.520 or Sec. 80.510, as
appropriate, unless one of the other hardship provisions of this
subpart apply.
28. Section 80.552 is amended by revising the section heading and
paragraphs (a), (b), (c), and (e) to read as follows:
Sec. 80.552 What compliance options are available to motor vehicle
diesel fuel small refiners?
(a) A refiner that has been approved by EPA as a motor vehicle
diesel fuel small refiner under Sec. 80.551(g) may produce motor
vehicle diesel fuel subject to the 500 ppm sulfur content standard
pursuant to the provisions of Sec. 80.530, except that the volume
limits of Sec. 80.530(a)(3) shall only apply to that volume
V500 of diesel fuel that is produced or imported during a
calendar year that exceeds 105% of the baseline volume established
under Sec. 80.595. The calendar year period shall be from January 1st
through December 31st. For the period June 1, 2006 through December 31,
2006, the volume limits shall only apply to that volume V500
that exceeds 60% of the baseline volume.
(b) A refiner that has been approved by EPA as a motor vehicle
diesel fuel small refiner under Sec. 80.551(g) may generate motor
vehicle diesel fuel credits pursuant to the provisions of Sec. 80.531,
except that for purposes of Sec. 80.531(a) the term ``Credit'' shall
equal V15, without further adjustment.
(c) A refiner that has been approved by EPA as a motor vehicle
diesel fuel small refiner under Sec. 80.551(g) may apply for an
extension of the duration of its small refiner gasoline sulfur
standards pursuant to Sec. 80.553.
* * * * *
(e) The provisions of this section shall apply separately for each
refinery owned or operated by a motor vehicle diesel fuel small
refiner.
29. A new Sec. 80.554 is added to read as follows:
Sec. 80.554 What compliance options are available to NRLM diesel fuel
small refiners?
(a) Option 1. A refiner that has been approved by EPA as a NRLM
diesel fuel small refiner under Sec. 80.551(g) may produce NRLM diesel
fuel from June 1, 2007 through May 31, 2010 that is exempt from the
standards of Sec. 80.510(a).
(1) The volume of NRLM diesel fuel that is exempt from Sec.
80.510(a) must be less than or equal to 105 percent of VNRLM
as defined in Sec. 80.534.
(2) Any volume of NRLM diesel fuel in excess of 105 percent of
VNRLM will be subject to the 500 ppm sulfur standard of
Sec. 80.510(a).
(3) High-sulfur NRLM produced under this paragraph must:
[[Page 28536]]
(i) Be dyed red per the provisions of Sec. 80.510(c)(1)(i) at the
point of production, importation, or redesignation under Sec.
80.511(c);
(ii) Be associated with a product transfer document that bears a
unique product code as specified in Sec. 80.590;
(iii) Be segregated in the distribution system from any 15 ppm
sulfur diesel fuel throughout the distribution system to the end-user;
and
(iv) Be segregated from any 500 ppm sulfur diesel fuel in the
distribution system up to the point where both fuels are dyed red per
Internal Revenue Service Code (26 U.S.C. 4082).
(b) Option 2. A refiner that has been approved by EPA as a NR
diesel fuel small refiner under Sec. 80.551(g) may produce from June
1, 2010, through May 31, 2014, NR diesel fuel subject to the standards
of Sec. 80.510(a).
(1) The volume of NR diesel fuel that may be subject to the 500 ppm
sulfur standard must be equal to or less than 105 percent of
VNRLM as defined in Sec. 80.534, less any volume of marked
locomotive and marine diesel fuel pursuant to Sec. 80.510(c).
(2) NR diesel fuel produced in excess of the volume allowed under
paragraph (b)(1) of this section will be subject to the standards of
Sec. 80.510(b)(1).
(3) 500 ppm NR fuel produced under this paragraph must:
(i) Be dyed red per the provisions of Sec. 80.510(c)(1)(i) at the
point of production, importation, or redesignation under Sec.
80.511(c);
(ii) Bear a unique product code as specified in Sec. 80.590; and
(iii) Be segregated in the distribution system from any 15 ppm
sulfur diesel fuel or 500 ppm sulfur locomotive and marine diesel fuel
throughout the distribution system to the end-user.
(4) Refiners or importers wishing to produce or import 500 ppm
sulfur NR diesel fuel and sell it as NR diesel fuel after May 31, 2010
would first have to provide EPA with a plan for EPA approval
demonstrating that they will ensure the product segregation described
in paragraph (3)(iii) of this section.
(c) Option 3. A refiner that has been approved by EPA as a NRLM
diesel fuel small refiner under Sec. 80.551(g) may generate diesel
fuel credits under the provisions of Sec. 80.535(b) and (d), except as
provided in paragraph (d)(1) of this section.
(d)(1) Option 4. In lieu of Options 1, 2, and 3 of this section, a
refiner that has been approved by EPA as a NRLM diesel fuel small
refiner under Sec. 80.551(g) may choose to adjust its small refiner
gasoline sulfur standards, subject to the following conditions:
(i) The refiner must produce NRLM diesel fuel meeting the standards
of Sec. 80.510(b) by June 1, 2006 and every year thereafter until the
expiration of the refiner's small refiner gasoline sulfur standards
(i.e., through calendar years 2007 or 2010);
(ii) The refiner must produce NRLM fuel each year or partial year
under paragraph (d)(1)(i) of this section at a volume that is equal to
at least 85% of VNRLM, as defined in Sec. 80.534,
calculated on an annual basis.
(2)(i) For a refiner meeting the conditions of (d)(1) of this
section, beginning January 1, 2004, the applicable small refiner's
annual average and per-gallon cap gasoline sulfur standards will be the
standards of Sec. 80.240(a) increased by a factor of 1.20 for the
duration of the refiner's small refiner gasoline sulfur standards under
Sec. 80.240(a) or Sec. 80.553 (i.e., through calendar years 2007 or
2010).
(ii) In no case may the per-gallon cap exceed 450 ppm.
(3)(i) If the refiner fails to produce the necessary volume of 15
ppm NRLM fuel by June 1, 2006 under paragraph (d)(1)(i) of this
section, the refiner must report this in its annual report under Sec.
80.599, and the adjustment of gasoline sulfur standards under paragraph
(d)(2)(i) of this section will be considered void as of January 1,
2004.
(ii) If such a refiner had produced gasoline above its interim
gasoline sulfur standard of Sec. 80.240(a) prior to June 1, 2006, such
fuel will not be considered in violation of the small refiner standards
under Sec. 80.240(a), provided the refiner obtains and uses a quantity
of gasoline sulfur credits equal to the volume of gasoline exceeding
the small refiner standards multiplied by the number of parts per
million by which the gasoline exceeded the small refiner standards.
(e) The provisions of this section shall apply separately for each
refinery owned or operated by a NRLM diesel fuel small refiner.
30. A new Sec. 80.555 is added to read as follows:
Sec. 80.555 What provisions are available to a large refiner that
acquires a small refiner or one or more of its refineries?
(a) In the case of a refiner without approved small refiner status
who acquires a refinery from a refiner with approved status as a motor
vehicle diesel fuel small refiner or a NRLM diesel fuel small refiner
under Sec. 80.551(g), the applicable small refiner provisions of
Sec. Sec. 80.552 and 80.554 may apply to the acquired small refinery
for a period of up to 24 months from the date of acquisition of the
refinery. In no case shall this period extend beyond May 31, 2010 for a
motor vehicle diesel fuel small refiner or beyond the dates specified
in Sec. 80.554(a) or (b), as applicable, for a NRLM diesel fuel small
refiner.
(2) A refiner may apply to EPA for additional time to comply with
the standards of Sec. Sec. 80.520 or 80.510 for the acquired refinery
if more than 24 months would be required for the necessary engineering,
permitting, construction, and start-up work to be completed. Such
applications must include detailed technical information supporting the
need for additional time and a proposed amount of additional time. EPA
will base a decision to approve additional time on information provided
by the refiner and on other relevant information. In no case will EPA
extend the compliance date beyond May 31, 2010 for a motor vehicle
diesel fuel small refiner or beyond the dates specified in Sec.
80.554(a) or (b), as applicable, for a NRLM diesel fuel small refiner.
31. Section 80.560 is amended by revising paragraphs (a), (b), (d),
(e), (h), (i), (k) and (l) to read as follows:
Sec. 80.560 How can a refiner seek temporary relief from the
requirements of this subpart in case of extreme hardship circumstances?
(a) EPA may, at its discretion, grant a refiner, for one or more of
its refineries, temporary relief from some or all of the provisions of
this subpart. Such relief shall be no less stringent than the small
refiner compliance options specified in Sec. 80.552 for motor vehicle
diesel fuel and Sec. 80.554 for NRLM diesel fuel. EPA may grant such
relief provided that the refiner demonstrates that:
(1) Unusual circumstances exist that impose extreme hardship and
significantly affect the refiner's ability to comply by the applicable
date; and
(2) It has made best efforts to comply with the requirements of
this subpart.
(b)(i) For motor vehicle diesel fuel, applications must be
submitted to EPA by June 1, 2002 to the following address: Applications
for small refiner status must be sent via certified mail with return
receipt or express mail with return receipt to: U.S. EPA--Attn: Diesel
Hardship (6406J), 1200 Pennsylvania Avenue, NW (6406J), Washington, DC
20460 (certified mail/return receipt) or Attn: Diesel Hardship,
Transportation and Regional Programs Division, 501 3rd Street, NW
(6406J), Washington, DC 20001 (express mail/return receipt). EPA
reserves the right to deny applications for appropriate reasons,
including unacceptable environmental impact. Approval to distribute
motor
[[Page 28537]]
vehicle diesel fuel not subject to the 15 ppm sulfur standard may be
granted for such time period as EPA determines is appropriate, but
shall not extend beyond May 31, 2010.
(ii) For NRLM diesel fuel, applications must be submitted to EPA by
June 1, 2005 to the following address: U.S. EPA--Attn: Diesel Hardship,
1200 Pennsylvania Avenue, NW (6406J), Washington, DC 20460 (certified
mail/return receipt) or Attn: Diesel Hardship, Transportation and
Regional Programs Division, 501 3rd Street, NW (6406J), Washington, DC
20001 (express mail/return receipt). EPA reserves the right to deny
applications for appropriate reasons, including unacceptable
environmental impact. Approval to distribute NRLM diesel fuel not
subject to the 500 ppm sulfur standard may be granted for such time
period as EPA determines is appropriate, but shall not extend beyond
May 31, 2010. Approval to distribute NR diesel fuel not subject to the
500 ppm sulfur standard may be granted for such time period as EPA
determines is appropriate, but shall not extend beyond May 31, 2014.
* * * * *
(d) Applicants must provide, at a minimum, the following
information:
(1) Detailed description of efforts to obtain capital for refinery
investments and efforts made to obtain credits for compliance under
Sec. 80.531 for motor vehicle diesel fuel or Sec. Sec. 80.535-80.536
for NRLM or NR diesel fuel;
(2) Bond rating of entity that owns the refinery (in the case of
joint ventures, include the bond rating of the joint venture entity and
the bond ratings of all partners; in the case of corporations, include
the bond ratings of any parent or subsidiary corporations); and
(3) Estimated capital investment needed to comply with the
requirements of this subpart by the applicable date.
(e) In addition to the application requirements of paragraph (b) of
this section, a refiner's application for temporary relief under this
paragraph must also include a compliance plan. Such compliance plan
shall demonstrate how the refiner will engage in a quality assurance
testing program to ensure that the following conditions are met:
(1) Its motor vehicle diesel fuel subject solely to the sulfur
standards under Sec. 80.520(c) has not caused motor vehicle diesel
fuel subject to the 15 ppm standard Sec. 80.520(a)(1) to fail to
comply with that standard; or
(2) Its NR diesel fuel subject solely to the sulfur standards under
Sec. 80.510(a) has not caused NR diesel fuel subject to the 15 ppm
standard under Sec. 80.510(b) to fail to comply with that standard.
(3) The quality assurance program must at least include periodic
sampling and testing at the party's own facilities and at downstream
facilities in the refiner's or importer's diesel fuel distribution
system, to determine compliance with the applicable sulfur standards
for both categories of motor vehicle diesel fuel; examination at the
party's own facilities and at applicable downstream facilities, of
product transfer documents to confirm appropriate transfers and
deliveries of both products; and inspection of retailer and wholesale
purchaser-consumer pump stands for the presence of the labels and
warning signs required under this section. Any violations that are
discovered shall be reported to EPA within 48 hours of discovery.
* * * * *
(h)(1) Refiners who are granted a hardship relief standard for any
refinery, and importers of fuel subject to temporary refiner relief
standards, may not distribute the diesel fuel subject to the sulfur
standard under Sec. 80.520(c) for use in model year 2007 and later
vehicles and must comply with all applicable provisions of this
subpart.
(2) Refiners who are granted a hardship relief standard for any
refinery, and importers of fuel subject to temporary refiner relief
standards, may not distribute the diesel fuel subject to the sulfur
standard under Sec. 80.510(a) for use in model year 2011 and later
nonroad engines and must comply with all applicable provisions of this
subpart.
(i) EPA may impose any reasonable conditions on waivers under this
section, including limitations on the refinery's volume of motor
vehicle diesel fuel and NRLM diesel fuel subject to temporary refiner
relief standards.
* * * * *
(k) The individual refinery sulfur standard and the compliance plan
will be approved or disapproved by the Administrator, and approval will
be effective when the refiner (or importer, as applicable, in the case
of compliance plans) receives an approval letter from EPA. If
disapproved, the refiner or importer must comply with the motor vehicle
diesel fuel standard under Sec. 80.520(a)(1) by the appropriate
compliance date specified in Sec. 80.500 or the NRLM standards and
compliance dates under Sec. 80.510(a) and (b) as applicable.
(l) If EPA finds that a refiner provided false or inaccurate
information on its application for hardship relief, EPA's approval of
the refiners application will be void ab initio.
32. Section 80.561 is amended by revising the introductory text and
paragraphs (c), (d) and (f) to read as follows:
Sec. 80.561 How can a refiner or importer seek temporary relief from
the requirements of this subpart in case of extreme unforseen
circumstances?
In appropriate extreme, unusual, and unforseen circumstances (e.g.,
natural disaster or refinery fire) which are clearly outside the
control of the refiner or importer and which could not have been
avoided by the exercise of prudence, diligence and due care, EPA may
permit a refiner or importer, for a brief period, to distribute motor
vehicle diesel fuel or NRLM diesel fuel which does not meet the
requirements of this subpart if:
* * * * *
(c) The refiner or importer can show how the requirements for motor
vehicle diesel fuel or NRLM diesel fuel will be expeditiously achieved;
(d) The refiner or importer agrees to make up any air quality
detriment associated with the nonconforming motor vehicle diesel fuel
or NRLM diesel fuel, where practicable;
* * * * *
(f)(1) In the case of motor vehicle diesel fuel distributed under
this section that does not meet the 15 ppm sulfur standard under Sec.
80.520(a)(1), such diesel fuel shall not be distributed for use in
model year 2007 or later motor vehicles, and must meet all the
requirements and prohibitions of this subpart applicable to diesel fuel
meeting the sulfur standard under Sec. 80.520(c), or to diesel fuel
that is not motor vehicle diesel fuel, as applicable.
(2) In the case of NR diesel fuel distributed under this section
after May 31, 2010 that does not meet the 15 ppm sulfur standard under
Sec. 80.510(b), such diesel fuel shall not be distributed for use in
model year 2011 or later nonroad engines, and must meet all the
requirements and prohibitions of this subpart applicable to diesel fuel
meeting the sulfur standard under Sec. 80.510(a) for NRLM fuel.
(3) In the case of NR diesel fuel distributed under this section
during the period June 1, 2007 and May 31, 2010 that does not meet the
500 ppm sulfur standard under Sec. 80.510(a), such diesel fuel must
meet all the requirements and prohibitions applicable to high sulfur
NRLM credit fuel under Sec. 80.536(f).
33. Section 80.570 is revised to read as follows:
Sec. 80.570 What labeling requirements apply to retailers and
wholesale purchaser-consumers of diesel fuel beginning June 1, 2006?
(a) Any retailer or wholesale purchaser-consumer who sells,
[[Page 28538]]
dispenses, or offers for sale or dispensing, motor vehicle diesel fuel
subject to the 500 ppm sulfur standard of Sec. 80.520(c), must
prominently and conspicuously display in the immediate area of each
pump stand from which motor vehicle fuel subject to the 500 ppm
standard is offered for sale or dispensing, the following legible
label, in block letters of no less than 36-point bold type, printed in
a color contrasting with the background:
LOW-SULFUR HIGHWAY DIESEL FUEL (500 ppm maximum)
WARNING
May damage model year 2007 and later highway vehicles and engines.
Federal Law prohibits use in these vehicles.
(b) Any retailer or wholesale purchaser-consumer who sells,
dispenses, or offers for sale or dispensing, motor vehicle diesel fuel
subject to the 15 ppm sulfur standard of Sec. 80.520(a)(1), must affix
the following conspicuous and legible label, in block letters of no
less than 36-point bold type, and printed in a color contrasting with
the background, to each pump stand:
ULTRA LOW-SULFUR HIGHWAY DIESEL FUEL (15 ppm maximum)
Recommended for use in all diesel vehicles and engines.
Required for model year 2007 and later highway diesel vehicles and
engines.
(c) Any retailer or wholesale purchaser-consumer who sells,
dispenses, or offers for sale or dispensing, diesel fuel for non-
highway equipment that does not meet the standards for motor vehicle
diesel fuel, must affix the following conspicuous and legible label, in
block letters of no less than 36-point bold type, and printed in a
color contrasting with the background, to each pump stand:
NON-HIGHWAY DIESEL FUEL (May Exceed 500 ppm Sulfur)
WARNING
May damage or destroy highway engines and their emission controls.
Federal Law prohibits use in any highway vehicle or engine.
(d) The labels required by paragraphs (a) through (c) of this
section must be placed on the vertical surface of each pump housing and
on each side that has gallonage and price meters. The labels shall be
on the upper two-thirds of the pump, in a location where they are
clearly visible.
34. A new Sec. 80.571 is added to read as follows:
Sec. 80.571 What labeling requirements apply to retailers and
wholesale purchaser-consumers of NR, LM, or NRLM diesel fuel or heating
oil beginning June 1, 2007?
Any retailer or wholesale purchaser-consumer who sells, dispenses,
or offers for sale or dispensing, nonroad (NR), locomotive or marine
(LM), or nonroad, locomotive or marine (NRLM) diesel fuel, or heating
oil, must prominently and conspicuously display in the immediate area
of each pump stand from which non-highway diesel fuel is offered for
sale or dispensing, one of the following legible labels, as applicable,
in block letters of no less than 36-point bold type, printed in a color
contrasting with the background:
(a) For pumps dispensing nonroad, locomotive or marine diesel fuel
meeting the 500 ppm sulfur standard of Sec. 80.510(a):
LOW-SULFUR NON-HIGHWAY DIESEL FUEL (500 ppm Maximum)
WARNING
Not for Use In Highway Vehicles or Engines.
(b) For pumps dispensing nonroad, locomotive or marine diesel fuel
meeting the 15 ppm sulfur standard of Sec. 80.510(b):
ULTRA-LOW SULFUR NON-HIGHWAY DIESEL FUEL (15 ppm Maximum)
Required for All Model Year 2011 and Newer Nonroad Diesel Engines.
Recommended for Use in All Nonroad, Locomotive and Marine Diesel
Engines.
WARNING
Not for Use in Highway Vehicles or Engines.
(c) For pumps dispensing nonroad, locomotive or marine diesel fuel
not meeting, or not offered as meeting, the 500 ppm sulfur standard of
Sec. 80.510(a) or the 15 ppm sulfur standard of Sec. 80.510(b):
HIGH-SULFUR NON-HIGHWAY DIESEL FUEL (May Exceed 500 ppm)
WARNING
Not for Use In Highway Vehicles or Engines.
Not for Use in Nonroad, Locomotive, or Marine Engines after August
31, 2010.
May Damage Engines Certified for Use on Low-Sulfur or Ultra-Low
Sulfur Diesel Fuel.
(d) For pumps dispensing non-highway diesel fuel for use other than
in nonroad, locomotive or marine engines, such as for use in stationary
diesel engines or as heating oil:
HEATING OIL (May Exceed 500 ppm Sulfur)
WARNING
Federal Law Prohibits Use in Highway Vehicles or Engines, or in
Nonroad, Locomotive, or Marine Engines.
May Damage Engines Certified for Use on Low-Sulfur or Ultra-Low
Sulfur Diesel Fuel.
(e) The labels required by paragraphs (a) through (d) of this
section must be placed on the vertical surface of each pump housing and
on each side that has gallonage and price meters. The labels shall be
on the upper two-thirds of the pump, in a location where they are
clearly visible.
35. A new Sec. 80.572 is added to read as follows:
Sec. 80.572 What labeling requirements apply to retailers and
wholesale purchaser-consumers of NR or LM diesel fuel and heating oil
beginning June 1, 2010?
Any retailer or wholesale purchaser-consumer who sells, dispenses,
or offers for sale or dispensing, nonroad (NR) or locomotive or marine
(LM) diesel fuel, or heating oil, must prominently and conspicuously
display in the immediate area of each pump stand from which non-highway
diesel fuel is offered for sale or dispensing, one of the following
legible labels, as applicable, in block letters of no less than 36-
point bold type, printed in a color contrasting with the background:
(a) For pumps dispensing NR diesel fuel subject to the 500 ppm
sulfur standard of Sec. 80.510(a):
LOW-SULFUR NON-HIGHWAY DIESEL FUEL (500 ppm Maximum)
WARNING
May Damage Model Year 2011 and Newer Nonroad Engines.
Federal Law Prohibits Use in All Model Year 2011 and Newer Nonroad
Engines.
Not for Use In Highway Vehicles or Engines.
(b) For pumps dispensing NR diesel fuel subject to the 15 ppm
sulfur standard of Sec. 80.510(b):
ULTRA-LOW SULFUR NON-HIGHWAY DIESEL FUEL (15 ppm Maximum)
Required for All Model Year 2011 and Newer Nonroad Diesel Engines.
Recommended for Use in All Nonroad, Locomotive and Marine Diesel
Engines.
WARNING
Not for Use in Highway Vehicles or Engines.
[[Page 28539]]
(c) For pumps dispensing locomotive or marine diesel fuel subject
to the 500 ppm sulfur standard of Sec. 80.510(a):
LOW-SULFUR LOCOMOTIVE OR MARINE DIESEL FUEL (500 ppm Maximum)
WARNING
Federal Law Prohibits Use in Other Nonroad Engines or in Highway
Vehicles or Engines.
May Damage Model Year 2007 and Newer Highway Diesel Engines and
2011 and Newer Nonroad Diesel Engines.
(d) For pumps dispensing non-highway diesel fuel for use other than
in nonroad, locomotive or marine engines, such as for use in stationary
diesel engines or as heating oil:
HEATING OIL (May Exceed 500 ppm Sulfur)
WARNING
Federal Law Prohibits Use in Highway Vehicles or Engines, or in
Nonroad, Locomotive, or Marine Engines.
May Damage Engines Certified for Use on Low-Sulfur or Ultra-Low
Sulfur Diesel Fuel.
(e) The labels required by paragraphs (a) through (d) of this
section must be placed on the vertical surface of each pump housing and
on each side that has gallonage and price meters. The labels shall be
on the upper two-thirds of the pump, in a location where they are
clearly visible.
36. A new Sec. 80.573 is added to read as follows:
Sec. 80.573 What labeling requirements apply to retailers and
wholesale purchaser-consumers of NR, LM, or NRLM diesel fuel, or
heating oil beginning June 1, 2014?
Any retailer or wholesale purchaser-consumer who sells, dispenses,
or offers for sale or dispensing, nonroad (NR) or locomotive or marine
(LM) diesel fuel, or heating oil, must prominently and conspicuously
display in the immediate area of each pump stand from which non-highway
diesel fuel is offered for sale or dispensing, one of the following
legible labels, as applicable, in block letters of no less than 36-
point bold type, printed in a color contrasting with the background:
(a) For pumps dispensing LM diesel fuel subject to the 500 ppm
sulfur standard of Sec. 80.510(a), but not later than December 1,
2014:
LOW-SULFUR LOCOMOTIVE OR MARINE DIESEL FUEL (500 ppm Maximum)
WARNING
Federal Law Prohibits Use in Other Nonroad Engines or in Highway
Vehicles or Engines.
May Damage Model Year 2007 and Newer Highway Diesel Engines and
2011 and Newer Nonroad Diesel Engines.
(b) For pumps dispensing NR diesel fuel subject to the 15 ppm
sulfur standard of Sec. 80.510(b), but not later than December 1,
2014:
ULTRA-LOW SULFUR NON-HIGHWAY DIESEL FUEL (15 ppm Maximum)
Required for all Nonroad Diesel Engines.
Recommended for Use in All Nonroad, Locomotive and Marine Diesel
Engines.
WARNING
Not for Use in Highway Vehicles or Engines.
(c) For pumps dispensing non-highway diesel fuel for use other than
in nonroad, locomotive or marine engines, such as for use in stationary
diesel engines or as heating oil:
HEATING OIL (May Exceed 500 ppm Sulfur)
WARNING
Federal Law Prohibits Use in Highway Vehicles or Engines, or in
Nonroad, Locomotive, or Marine Engines.
May Damage Engines Certified for Use on Low-Sulfur or Ultra-Low
Sulfur Diesel Fuel.
(d) The labels required by paragraphs (a) through (c) of this
section must be placed on the vertical surface of each pump housing and
on each side that has gallonage and price meters. The labels shall be
on the upper two-thirds of the pump, in a location where they are
clearly visible.
37. Section 80.580 is amended by revising paragraphs (a)
introductory text, (a)(2), (a)(3), (a)(4), and (b) to read as follows:
Sec. 80.580 What are the sampling and testing methods for sulfur?
(a) Diesel fuel and diesel fuel additives. The sulfur content of
diesel fuel and diesel fuel additives is to be determined in accordance
with this section.
* * * * *
(2) Test method for sulfur. (i) Until July 22, 2003, for motor
vehicle diesel fuel and diesel fuel additives subject to the 15 ppm
sulfur standard of Sec. 80.520(a)(1), American Society for Testing and
Materials (ASTM) standard test method D 6428-99, entitled ``Test Method
for Total Sulfur in Liquid Aromatic Hydrocarbons and Their Derivatives
by Oxidative Combustion and Electrochemical Detection.''
(ii) For motor vehicle diesel fuel and diesel fuel additives
subject to the 500 ppm sulfur standard of Sec. 80.520(c), and non-
road, locomotive and marine diesel fuel subject to the 500 ppm sulfur
standard of Sec. 80.510(a)(1), ASTM standard test method D 2622-98,
entitled ``Standard Test Method for Sulfur in Petroleum Products by X-
Ray Spectrometry.''
(iii) Starting July 22, 2003, for motor vehicle diesel fuel and
diesel fuel additives subject to the 15 ppm sulfur standard of Sec.
80.520(a)(1), any test method approved under Sec. 80.585.
(iv) For nonroad diesel fuel and diesel fuel additives subject to
the 15 ppm standard of Sec. 80.510(b), any test method approved under
Sec. 80.585.
(3) Alternative test methods for sulfur. (i) Until July 22, 2003,
for motor vehicle diesel fuel and diesel fuel additives subject to the
15 ppm standard of Sec. 80.520(a)(1), sulfur content may be determined
using ASTM standard test method D 5453-00e1, entitled ``Standard Test
Method for Determination of Total Sulfur in Light Hydrocarbons, Motor
Fuels and Oils by Ultraviolet Fluorescence,'' or ASTM D 3120-96,
entitled ``Standard Test Method for Trace Quantities of Sulfur in Light
Liquid Petroleum Hydrocarbons by Oxidative Micrcoulometry,'' provided
that the refiner or importer test result is correlated with the
appropriate method specified in paragraph (a)(2) of this section.
(ii) Options for testing sulfur content of 500 ppm diesel fuel. (A)
For motor vehicle diesel fuel and diesel fuel additives subject to the
500 ppm standard of Sec. 80.520(c), and for nonroad, locomotive and
marine diesel fuel subject to the 500 ppm standard of Sec. 80.510(a),
sulfur content may be determined using ASTM D 4294-02, entitled
``Standard Test Method for Sulfur in Petroleum Products by Energy
Dispersive X-Ray Fluorescence Spectrometry;'' ASTM D 5453-00e1,
``Standard Test Method for Determination of Total Sulfur in Light
Hydrocarbons, Motor Fuels and Oils by Ultraviolet Fluorescence,'' or
ASTM D 6428-99, entitled ``Test Method for Total Sulfur in Liquid
Aromatic Hydrocarbons and Their Derivatives by Oxidative Combustion and
Electrochemical Detection,'' provided that the refiner or importer test
result is correlated with the appropriate method
[[Page 28540]]
specified in paragraph (2)(ii) of this section; or
(B) For motor vehicle diesel fuel and diesel fuel additives subject
to the 500 ppm standard of Sec. 80.520(c), and for nonroad, locomotive
and marine diesel fuel subject to the 500 ppm standard of Sec.
80.510(a), sulfur content may be determined using any test method
approved under Sec. 80.585.
(4) Adjustment Factor for downstream test results. An adjustment
factor of negative 2 ppm shall be applied to the test results, to
account for test variability, but only for testing of motor vehicle
diesel fuel or nonroad diesel fuel identified as subject to the 15 ppm
sulfur standard of Sec. Sec. 80.510(b) or 80.520(a)(1), at a
downstream location as defined in Sec. 80.500(f).
(b) Incorporation by reference. ASTM standard methods D 2622-98,
entitled ``Standard Test Method for Sulfur in Petroleum Products by X-
Ray Spectrometry,'' D 3120-96, entitled ``Standard Test Method for
Trace Quantities of Sulfur in Light Liquid Petroleum Hydrocarbons by
Oxidative Micrcoulometry;'' D 4294-02, entitled ``Standard Test Method
for Sulfur in Petroleum Products by Energy Dispersive X-Ray
Fluorescence Spectrometry;'' D 5453-00e1, entitled ``Test Method for
Determination of Total Sulfur in Light Hydrocarbons, Motor Fuels and
Oils by Ultraviolet Fluorescence;'' and D 6299-02, entitled ``Standard
Practice for Applying Statistical Quality Assurance Techniques to
Evaluate Analytical Measurement System Performance;'' D 6428-99,
entitled ``Test Method for Total Sulfur in Light Aromatic Hydrocarbons
and their Derivatives by Oxidative Combustion and Electrochemical
Detection;'' are incorporated by reference. This incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
obtained from the American Society for Testing and Materials, 100 Barr
Harbor Dr., West Conshohocken, PA 19428. Copies may be inspected at the
Air Docket Section (LE-131), room M-1500, U.S. Environmental Protection
Agency, Docket No. A-99-06, 401 M Street, SW., Washington, DC 20460, or
at the Office of the Federal Register, 800 North Capitol Street, NW.,
Suite 700, Washington, DC.
38. A new Sec. 80.581 is added to read as follows:
Sec. 80.581 What are the batch testing and sample retention
requirements for motor vehicle and nonroad, locomotive and marine
diesel fuel?
(a) Beginning on June 1, 2006 or earlier pursuant to Sec. 80.531
for motor vehicle diesel fuel and June 1, 2010 or earlier pursuant to
Sec. 80.535 for NR, LM, or NRLM diesel fuel, each refiner and importer
shall collect a representative sample from each batch of motor vehicle,
NR, LM, or NRLM diesel fuel produced or imported and subject to the 15
ppm sulfur content standard. The refiner or importer shall test each
sample to determine its sulfur content for compliance with the
requirements of this subpart prior to the diesel fuel leaving the
refinery or import facility, using an appropriate sampling and testing
method as specified in Sec. 80.580.
(b) All test results under this paragraph shall be retained for
five years and must be provided to EPA upon request.
39. A new Sec. 80.582 is added to read as follows:
Sec. 80.582 What are the sampling and testing methods for the fuel
marker?
(a)Sampling and testing for methods for the fuel marker. For
heating oil and LM diesel fuel subject to the fuel marker requirement
in Sec. 80.510(c), the identification of the presence and
concentration of the fuel marker in diesel fuel may be determined using
the test procedures qualified in accordance with the requirements in
this section. For NRLM or NR subject to the provisions of Sec. Sec.
80.510(c)(1)(iv) or 80.510(c)(2)(iv) the identification of the presence
and concentration of the fuel marker in diesel fuel may be determined
using the test procedures qualified in accordance with the requirements
in this section.
(1) The sampling, sample preparation, and testing methods qualified
for use in accordance with the requirements of this section may involve
the use of hazardous materials, operations and equipment. This section
does not address the associated safety problems which may exist. It is
the responsibility of the user of the procedures specified in this
section to establish appropriate safety and health practices prior
their use. It is also the responsibility of the user to dispose of any
byproducts which might result from conducting these procedures in a
manner consistent with applicable safety and health requirements.
(2) [Reserved]
(b) What are the precision and accuracy criteria for qualification
of fuel marker test methods? (1) Precision means the consistency of a
set of measurements and is used to determine how closely analytical
results can be duplicated based on repeat measurements of the same
material under prescribed conditions. A precision of <0.1 mg per liter
is required, as determined by performing a minimum of 20 repeat tests
over a minimum of four days on samples taken from a homogeneous
commercially available diesel fuel which meets the applicable industry
consensus and federal regulatory specifications and which contains the
fuel marker at a concentration in the range of 0.1 to 8 mg per liter.
In order to qualify, the 20 results must be a series of tests on the
same material and there must be a sequential record of the analysis
with no omissions.
(2) Accuracy means the closeness of agreement between a measured or
calculated value and the actual or specified value. An accuracy of +/-
0.05 mg per liter is required, as determined by performing a minimum of
10 repeat tests on each of at least two commercially available solvent
yellow 124 standards, as follows:
(i) The arithmetic average of a continuous series of at least 10
tests performed on a commercially available solvent yellow 124 standard
in the range of 0.1 to 1 mg per liter; and
(ii) The arithmetic average of a continuous series of at least 10
tests performed on a commercially available solvent yellow 124 standard
in the range of 4 to 10 mg per liter.
(iii) In applying the tests of paragraphs (b)(2)(i) and (b)(2)(ii)
of this section, individual test results shall be compensated for any
known chemical interferences.
(c) What process must a test facility follow in order to qualify a
test method for determining the fuel marker content of distillate fuels
and how will EPA qualify or decline to qualify a test method?--(1)
Qualification of test methods approved by voluntary consensus-based
standards bodies. Any standard test method developed by a Voluntary
Consensus-Based Standards Body, such as the American Society for
Testing and Materials (ASTM) or International Standards Organization
(ISO), shall be considered a qualified test method for determining the
fuel marker content of distillate fuel provided that it meets the
precision and accuracy criteria under paragraph (b) of this section.
The qualification of a test method is limited to the single test
facility that performed the testing for accuracy and precision. The
individual facility must submit the accuracy and precision results for
each method
[[Page 28541]]
following procedures established by the Administrator.
(2) Qualification of test methods that have not been approved by a
voluntary consensus-based standards body. (i) A test method that has
not been approved by a voluntary consensus-based standards body may be
qualified upon approval by the Administrator. The following information
must be submitted in the application for approval:
(A) Full test method documentation, including a description of the
technology and/or instrumentation that makes the method functional.
(B) Information demonstrating that the test method meets the
accuracy and precision criteria under paragraph (b) of this section.
(C) If requested by the Administrator, test results utilizing the
method and performed on a sample of commercially available distillate
fuel which meets the applicable industry consensus and federal
regulatory specifications and which contains the fuel marker.
(D) Any additional information requested by the Administrator and
necessary to render a decision as to qualification of the test method.
(E) The qualification of a test method is limited to the single
test facility that performed the testing for accuracy and precision and
any other required testing.
(3)(i) Within 90 days of receipt of all materials required to be
submitted under paragraph (c)(1) or (c)(2) of this section, the
Administrator shall determine whether to qualify the test method under
this section. The Administrator shall qualify the test method if all
materials required under this section are received and the test method
meets the accuracy and precision criteria of paragraph (b) of this
section.
(ii) If the Administrator does not act within 90 days of receipt,
the test method shall be deemed qualified until such time as the
Administrator provides written notification declining to qualify the
method.
(iii) If the Administrator finds that an individual test facility
has provided false or inaccurate information under this section, upon
notice from the Administrator, the qualification shall be void ab
initio.
(iv) The qualification of any test method under this paragraph (c)
shall be valid for the duration of when the fuel marker requirements
remain applicable under this subpart.
(d) Quality control procedures for fuel marker measurement
instrumentation. A test shall not be considered a test using a
qualified test method unless the following quality control procedures
are performed separately for each instrument used to make measurements:
(1) Follow all mandatory provisions of ASTM D 6299-02, ``Standard
Practice for Applying Statistical Quality Assurance Techniques to
Evaluate Analytical Measurement System Performance,'' and construct
control charts from the mandatory quality control testing prescribed in
paragraph 7.1 of the method, following guidelines under A 1.5.1 for
individual observation charts and A 1.5.2 for moving range charts.
(2) Follow paragraph 7.3.1 of ASTM D 6299-02 (check standards)
using a standard reference material at least monthly or following any
major change to the laboratory equipment or test procedure. Any
deviation from the accepted reference value of a check standard greater
than 0.1 mg per liter must be investigated.
(3) Retain batch samples for batches of diesel fuel subject to the
fuel marker requirement for a period at least as long as the period
between quality control material or check standard testing.
(4) Upon discovery of any quality control testing violation of
paragraph A 1.5.1.3 or A 1.5.2.1 of ASTM D 6299-02, or any check
standard deviation greater than 0.1 mg per liter, conduct an
investigation and retest retained samples for fuel batches tested since
the last satisfactory quality control material or check standard
testing.
(5) Retain results of quality control testing and retesting of
retained samples under paragraph (d)(3) of this section for five years.
(e) Incorporation by reference. ASTM Standard Methods D 6299-02,
entitled ``Standard Practice for Applying Statistical Quality Assurance
Techniques to Evaluate Analytical Measurement System Performance''.
This incorporation by reference was approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
Copies may be obtained from the American Society for Testing and
Materials, 100 Bar Harbor Dr., West Conshohocken, PA 19428. Copies may
be inspected at the Air Docket Section (LE-131), room M-1500, U.S.
Environmental Protection Agency, Docket No. A-99-06, 401 M Street, SW.,
Washington, DC 20460, or at the Office of the Federal Register, 800
North Capitol Street, NW., Suite 700, Washington, DC.
40. A new Sec. 80.583 is added to read as follows:
Sec. 80.583 What alternative sampling and testing requirements apply
to importers who transport motor vehicle diesel fuel or nonroad diesel
fuel by truck?
Importers who import diesel fuel subject to the standard under
Sec. 80.510(b) or Sec. 80.510(a) into the United States by truck may
comply with the following requirements instead of the requirements to
sample and test each batch of fuel designated as subject to the 15 ppm
sulfur standard under Sec. 80.581 otherwise applicable to importers:
(a) Terminal testing. For purposes of determining compliance with
the 15 ppm sulfur standard, the importer may use test results for
sulfur content testing conducted by the foreign truck-loading terminal
operator for diesel fuel contained in the storage tank from which
trucks used to transport diesel fuel designated as subject to the15 ppm
sulfur content standard into the United States are loaded, provided the
following conditions are met:
(1) The sampling and testing shall be performed after each receipt
of diesel fuel into the storage tank, or immediately before each
transfer of diesel fuel to the importer's truck.
(2) The sampling and testing shall be performed according to Sec.
80.580.
(3) At the time of each transfer of diesel fuel to the importer's
truck for import to the U.S., the importer must obtain a copy of the
terminal test result that indicates the sulfur content of the truck
load, or truck compartment load, as applicable.
(b) Quality assurance program. The importer must conduct a quality
assurance program, as specified in this paragraph, for each truck
loading terminal.
(1) Quality assurance samples must be obtained from the truck-
loading terminal and tested by the importer, or by an independent
laboratory, and the terminal operator must not know in advance when
samples are to be collected.
(2) The sampling and testing must be performed using the methods
specified in Sec. 80.580.
(3) The frequency of the quality assurance sampling and testing
must be at least one sample for each 50 of an importer's trucks that
are loaded at a terminal, or one sample per month, whichever is more
frequent.
(c) Party required to conduct quality assurance testing. The
quality assurance program under paragraph (b) of this section shall be
conducted by the importer. In the alternative, this testing may be
conducted by an independent laboratory that meets the criteria under
Sec. 80.65(f)(2)(iii), provided the importer receives copies of all
results of tests
[[Page 28542]]
conducted no later than 21 days after the sample was taken.
(d) Assignment of batch numbers. The importer must treat each
compartment of each truck load of imported diesel fuel as a separate
batch for purposes of assigning batch numbers and maintaining records
under Sec. 80.592(d), and reporting under Sec. 80.599, except that
where different compartments contain homogeneous product of identical
designation (including dye or marker status, as well as the sulfur
content designation), the total volume of those compartments may be
treated as a single batch.
(e) EPA inspections of terminals. EPA inspectors or auditors must
be given full and immediate access to the truck-loading terminal and
any laboratory at which samples of diesel fuel collected at the
terminal are analyzed, and must be allowed to conduct inspections,
review records, collect diesel fuel samples and perform audits. These
inspections or audits may be either announced or unannounced.
(f) Certified Sulfur-FRDiesel and Certified Sulfur-FRNRDiesel. This
section does not apply to Certified Sulfur-FRDiesel or Certified
Sulfur-FRNRDiesel as defined in Sec. 80.620.
(g) Effect of noncompliance. If any of the requirements of this
section are not met, all motor vehicle diesel fuel and nonroad diesel
fuel imported by the truck importer during the time the requirements
are not met is deemed in violation of the diesel fuel sulfur standards
in Sec. 80.510 or Sec. 80.529(a), as applicable. Additionally, if any
requirement is not met, EPA may notify the importer of the violation,
and, if the requirement is not fulfilled within 10 days of
notification, the truck importer may not in the future use the sampling
and testing provisions in this section in lieu of the provisions in
Sec. 80.581.
41. A new Sec. 80.584 is added to read as follows:
Sec. 80.584 What are the precision and accuracy criteria for approval
of test methods for determining the sulfur content of diesel fuel?
(a) Precision. (1) For motor vehicle diesel fuel and diesel fuel
additives subject to the 15 ppm sulfur standard of Sec. 80.520(a)(1)
and nonroad diesel fuel and diesel fuel additives subject to the 15 ppm
standard of Sec. 80.510(b), a standard deviation less than 0.72 ppm,
computed from the results of a minimum of 20 repeat tests made over a
minimum of four days on samples taken from a single homogeneous
commercially available diesel fuel with a sulfur content in the range
of 5-15 ppm. The 20 results must be a series of tests with a sequential
record of the analyses and no omissions.
(2) For motor vehicle diesel fuel and diesel fuel additives subject
to the 500 ppm standard of Sec. 80.520(c), and for nonroad, locomotive
and marine diesel fuel subject to the 500 ppm standard of Sec.
80.510(a), of a standard deviation less than 9.68 ppm, computed from
the results of a minimum of 20 repeat tests made over a minimum of four
days on samples taken from a single homogeneous commercially available
diesel fuel with a sulfur content in the range of 200-500 ppm. The 20
results must be a series of tests with a sequential record of the
analyses and no omissions.
(b) Accuracy. (1) For motor vehicle diesel fuel and diesel fuel
additives subject to the 15 ppm sulfur standard of Sec. 80.520(a)(1)
and nonroad diesel fuel and diesel fuel additives subject to the 15 ppm
sulfur standard of Sec. 80.510(b):
(i) The arithmetic average of a continuous series of at least 10
tests performed on a commercially available gravimetric sulfur standard
in the range of 1-10 ppm sulfur shall not differ from the accepted
reference value (ARV) of that standard by more than 0.54 ppm sulfur;
and
(ii) The arithmetic average of a continuous series of at least 10
tests performed on a commercially available gravimetric sulfur standard
in the range of 10-20 ppm sulfur shall not differ from the ARV of that
standard by more than 0.54 ppm sulfur.
(iii) In applying the tests of paragraphs (b)(1)(i) and (b)(1)(ii)
of this section, individual test results shall be compensated for any
known chemical interferences.
(2) For motor vehicle diesel fuel and diesel fuel additives subject
to the 500 ppm sulfur standard of Sec. 80.520(c), and for nonroad,
locomotive and marine diesel fuel subject to the 500 ppm sulfur
standard of Sec. 80.510(a):
(i) The arithmetic average of a continuous series of at least 10
tests performed on a commercially available gravimetric sulfur standard
in the range of 100-200 ppm sulfur shall not differ from the ARV of
that standard by more than 7.26 ppm sulfur; and
(ii) The arithmetic average of a continuous series of at least 10
tests performed on a commercially available gravimetric sulfur standard
in the range of 400-500 ppm sulfur shall not differ from the ARV of
that standard by more than 7.26 ppm sulfur.
(iii) In applying the tests of paragraphs (b)(2)(i) and (b)(2)(ii)
of this section, individual test results shall be compensated for any
known chemical interferences.
42. A new Sec. 80.585 is added to read as follows:
Sec. 80.585 What is the process for approval of a test method for
determining the sulfur content of diesel?
(a) Approval of test methods approved by voluntary consensus-based
standards bodies. For such a method to be approved, the following
information must be submitted to the Administrator by each test
facility for each test method that it wishes to have approved: Any test
method approved by a voluntary consensus-based standards body, such as
the American Society for Testing and Materials (ASTM) or International
Standards Organization (ISO), shall be approved as a test method for
determining the sulfur content of diesel fuel if it meets the
applicable accuracy and precision criteria under Sec. 80.584. The
approval of a test method is limited to the single test facility that
performed the testing for accuracy and precision. The individual
facility must submit the accuracy and precision results for each method
following procedures established by the Administrator.
(b) Approval of test methods not approved by a voluntary consensus-
based standards body. For such a method to be approved, the following
information must be submitted to the Administrator by each test
facility for each test method that it wishes to have approved:
(1) Full test method documentation, including a description of the
technology and/or instrumentation that makes the method functional.
(2) Information demonstrating that the test method meets the
applicable accuracy and precision criteria of Sec. 80.584.
(3) If requested by the Administrator, test results from use of the
method to analyze samples of commercially available fuel provided by
EPA.
(4) Any additional information requested by the Administrator and
necessary to render a decision as to approval of the test method.
(c)(1) Within 90 days of receipt of all materials required to be
submitted under paragraphs (a) or (b) of this section, the
Administrator shall determine whether the test method is approved under
this section.
(2) If the Administrator determines that the test method is not
approvable, within 90 days of receipt of all materials required to be
submitted under paragraph (a) or (b) of this section, the Administrator
will notify the applicant of the reasons for not approving the method.
If the Administrator does not notify the applicant within 90 days of
receipt of the application, that the test
[[Page 28543]]
method is not approved, then the test method shall be deemed approved.
(3) If the Administrator finds that an individual test facility has
provided false or inaccurate information under this section, upon
notice from the Administrator the approval shall be void ab initio.
(4) The approval of any test method under paragraph (b) of this
section shall be valid for five (5) years from the date of approval by
the Administrator and shall not be extended. If the method is later
approved by a voluntary consensus-based standards body, the approval
shall remain valid as long as the conditions of paragraph (a) of this
section are met.
(d) Quality assurance procedures for sulfur measurement
instrumentation. A test shall not be considered a test using an
approved test method unless the following quality control procedures
are performed separately for each instrument used to make measurements:
(1) Follow all mandatory provisions of ASTM D 6299-02, ``Standard
Practice for Applying Statistical Quality Assurance Techniques to
Evaluate Analytical Measurement System Performance,'' and construct
control charts from the mandatory quality control testing prescribed in
paragraph 7.1 of the practice, following guidelines under A 1.5.1 for
individual observation charts and A 1.5.2 for moving range charts.
(2) Follow paragraph 7.3.1 of ASTM D 6299-02 (check standards)
using a standard reference material at least monthly or following any
major change to the laboratory equipment or test procedure. Any
deviation from the accepted reference value of a check standard greater
than 1.44 ppm (for diesel fuel subject to the 15 ppm sulfur standard)
or 19.36 ppm (for diesel fuel subject to the 500 ppm sulfur standard)
must be investigated.
(3) Retain samples of tested batches of diesel fuel for a period at
least as long as the period between quality control material or check
standard testing occasions.
(4) Upon discovery of any quality control testing violation of
paragraph A 1.5.1.3 or A 1.5.2.1 of ASTM D 6299-02, or any check
standard deviation greater than 1.44 ppm (for diesel fuel subject to
the 15 ppm sulfur standard) or 19.36 ppm (for diesel fuel subject to
the 500 ppm sulfur standard), conduct an investigation into the cause
of such violation or deviation and, after restoring method performance
to statistical control, retest retained samples from batches originally
tested since the last satisfactory quality control material or check
standard testing occasion.
43. A new Sec. 80.586 is added to read as follows:
Sec. 80.586 What are record retention requirements for test methods
approved under this subpart?
Each individual test facility must retain records related to the
establishment of accuracy and precision values, all test method
documentation, and any quality control testing and analysis under
Sec. Sec. 80.584-80.585, for five (5) years.
44. Section 80.590 is revised to read as follows:
Sec. 80.590 What are the product transfer document requirements for
motor vehicle diesel fuel; nonroad, locomotive and marine diesel fuel;
and heating oil?
(a) On each occasion that any person transfers custody or title to
diesel fuel or heating oil, including distillates used or intended to
be used as diesel fuel or heating oil, except when such fuel is
dispensed into motor vehicles, nonroad equipment, or locomotives at a
retail outlet or wholesale purchaser-consumer facility, the transferor
must provide to the transferee documents which include the following
information:
(1) The name and address of the transferor and transferee;
(2) The volume of diesel fuel which is being transferred;
(3) The location of the diesel fuel at the time of the transfer;
(4) The date of the transfer;
(5) An accurate statement of the applicable fuel designation and
uses, as follows:
(i) Undyed 15 ppm diesel fuel. (A) For the period of June 1, 2006
and later, ``15 ppm (maximum) Undyed Ultra-Low Sulfur Diesel Fuel. For
use in all diesel vehicles and engines.''
(B) [Reserved]
(ii) Dyed 15 ppm diesel fuel. (A) For the period of June 1, 2006
and later, ``15 ppm (maximum) Dyed Ultra-Low Sulfur Diesel Fuel. For
use in all nonroad, locomotive and marine diesel engines. Not for use
in highway vehicles or engines except for tax-exempt use in accordance
with sec. 4082 of the Internal Revenue Code.''
(B) [Reserved]
(iii) Undyed 500 ppm diesel fuel. (A) For the period of June 1,
2006 through November 30, 2010, ``500 ppm (maximum) Undyed Low Sulfur
Diesel Fuel. For use in Model Year 2006 and older diesel highway
vehicles and engines. Also for use in nonroad, locomotive or marine
diesel engines. Not for use in 2007 and newer highway vehicles or
engines.''
(B) [Reserved]
(iv) Dyed 500 ppm diesel fuel. (A) For the period of June 1, 2006
through August 31, 2010, ``500 ppm (maximum) Dyed Low Sulfur Nonroad,
Locomotive and Marine Diesel Fuel. Not for use in highway vehicles or
engines except for use in Model Year 2006 and older highway diesel
vehicles or engines for tax-exempt use in accordance with Sec. 4082 of
the Internal Revenue Code.''
(B) For the period of September 1, 2010 through August 31, 2014,
``500 ppm (maximum) Dyed Low Sulfur Nonroad Diesel Fuel. For use in
2010 and older nonroad diesel engines. May be used in locomotive and
marine diesel engines. Not for use in highway vehicles and engines or
model year 2011 or later nonroad engines.''
(C) For dyed and marked locomotive and marine fuel, during the
period June 1, 2010 through August 31, 2014, ``500 ppm (maximum) Dyed
and Marked Low Sulfur Locomotive and Marine diesel fuel. Not for use in
highway or nonroad vehicles and engines.''.
(D) For dyed locomotive and marine fuel after August 31, 2014,
``500 ppm (maximum) Dyed Low Sulfur Locomotive and Marine diesel fuel.
Not for use in highway or nonroad vehicles and engines.''
(v) Dyed High Sulfur NLRM Fuel under section 80.510(d)(1),
including any mixture of low sulfur and/or ultra-low sulfur diesel fuel
with high sulfur NRLM Diesel Fuel.
(A) For the period June 1, 2006 through August 31, 2010, ``High
Sulfur Dyed Nonroad, Locomotive, and Marine Engine Diesel fuel--sulfur
content may exceed 500 ppm. Not for use in highway vehicles or engines.
Not for use in any nonroad engines.''
(vi) Heating oil. (A) For heating oil produced or imported at any
time beginning June 1, 2006, or beginning June 1, 2006 under section
80.534, ``Heating Oil. Not for use in highway vehicles or engines,
nonroad engines, or locomotive or marine engines.''
(B) [Reserved]
(b) The following may be substituted for the descriptions in
paragraph (a) of this section, as appropriate:
(1) ``This is high sulfur diesel fuel for use only in Guam,
American Samoa, or the Northern Mariana Islands.'';
(2) ``This diesel fuel is for export use only.'';
(3) ``This diesel fuel is for research, development, or testing
purposes only.'';
(4) ``This diesel fuel is for use in diesel highway vehicles or
nonroad, locomotive, or marine engine equipment having an EPA-approved
national security exemption only.''
[[Page 28544]]
(c) If undyed and/or unmarked diesel fuel is dyed and/or marked
subsequent to the issuance of a product transfer document, at the time
the diesel fuel is dyed and/or marked, a new product transfer document
must be prepared with the language under paragraph (a)(5) of this
section applicable to the changed fuel and provided to subsequent
transferees.
(d) Except for transfers to truck carriers, retailers or wholesale
purchaser-consumers, product codes may be used to convey the
information required under this section if such codes are clearly
understood by each transferee. Codes used to convey the statement in
paragraphs (a)(5)(i) and (a)(5)(ii) of this section must contain the
number ``15'', and codes used to convey the statement in paragraphs
(a)(5)(iii) and (a)(5)(iv) of this section must contain the number
``500''. Codes used to convey the statement in paragraph (a)(5)(v) must
contain the statement ``greater than 500'' or ``£500''.
(e) Beginning June 1, 2001 and ending May 31, 2005, any transfer
subject to this section, which is also subject to the early credit
provisions of Sec. 80.531(b), must comply with all applicable
requirements of this section.
(f) Beginning June 1, 2005 and ending May 31, 2006, any transfer
subject to this section, which is also subject to the early credit
requirements of Sec. 80.531(c), must comply with all applicable
requirements of this section.
45. Section 80.591 is revised to read as follows:
Sec. 80.591 What are the product transfer document requirements for
additives to be used in diesel fuel?
(a) Except as provided in paragraphs (b) and (d) of this section,
on each occasion that any person transfers custody or title to a diesel
fuel additive to a party in the additive distribution system or in the
diesel fuel distribution system for use downstream of the diesel fuel
refiner, the transferor must provide to the transferee documents which
identify the additive, and:
(1) Identify the name and address of the transferor and transferee;
the date of transfer; the location at which the transfer took place;
the volume of additive transferred; and
(2) Indicates compliance with the 15 ppm sulfur standard by
inclusion of the following statement: ``The sulfur content of this
diesel fuel additive does not exceed 15 ppm.''
(b) On each occasion that any person transfers custody or title to
a diesel fuel additive subject to the requirements of Sec. 80.521(b),
to a party in the additive distribution system or in the diesel fuel
distribution system for use in diesel fuel downstream of the diesel
fuel refiner, the transferor must provide to the transferee documents
which identify the additive, and:
(1) Identify the name and address of the transferor and transferee;
the date of transfer; the location at which the transfer took place;
the volume of additive transferred; and
(2) Indicate the high sulfur potential of the additive by inclusion
of the following statement:
``This diesel fuel additive may exceed the federal 15 ppm sulfur
standard. Improper use of this additive may result in non-complying
diesel fuel.'';
(3) Includes the following information:
(i) The additive's maximum sulfur concentration;
(ii) The maximum recommended concentration in volume percent for
use of the additive in diesel fuel; and
(iii) The contribution to the sulfur level of the fuel, in ppm,
that would result if the additive is used at the maximum recommended
concentration.
(c) Except for transfers of diesel fuel additives to truck
carriers, retailers or wholesale purchaser-consumers, product codes may
be used to convey the information required under paragraphs (a) and (b)
of this section, if such codes are clearly understood by each
transferee. Codes used to convey the statement in paragraph (a)(2) of
this section must contain the number ``15'' and codes used to convey
the statement in paragraph (b)(2) of this section may not contain such
number.
(d) For those diesel fuel additives which are sold in containers
for use by the ultimate consumer of diesel fuel, each transferor must
have displayed on the additive container, in a legible and conspicuous
manner, either of the following statements, as applicable:
(1) ``This diesel fuel additive complies with the federal low
sulfur content requirements for use in diesel motor vehicles and
nonroad, locomotive, and marine diesel equipment engines.''; or
(2) For those additives sold in containers for use by the ultimate
consumer, with a sulfur content in excess of 15 ppm the following
statement: ``This diesel fuel additive does not comply with federal
ultra-low sulfur content requirements for use in model year 2007 and
newer diesel motor vehicles or model year 2011 and newer diesel nonroad
equipment engines.''
46. Section 80.592 is amended by revising paragraphs (a), (b)(4),
and (b)(7) introductory text, redesignating paragraphs (c) through (e)
as paragraphs (e) through (g), and adding new paragraphs (c) and (d) to
read as follows:
Sec. 80.592 What records must be kept?
(a) Records that must be kept by parties in the motor vehicle
diesel fuel and diesel fuel additive distribution systems. Beginning
June 1, 2006, or for a refiner the first compliance period in which the
refiner is generating early credits under Sec. 80.531(b) or (c),
whichever is earlier, any person who produces, imports, sells, offers
for sale, dispenses, distributes, supplies, offers for supply, stores,
or transports motor vehicle diesel fuel subject to the provisions of
this subpart, must keep the following records:
(1) The applicable product transfer documents required under
Sec. Sec. 80.590 and 80.591;
(2) For any sampling and testing for sulfur content under
Sec. Sec. 80.580 and 80.581 for a batch of motor vehicle diesel fuel
produced or imported and subject to the 15 ppm sulfur standard or any
sampling and testing for sulfur content or as part of a quality
assurance testing program, and any sampling and testing for the cetane
index or aromatics content of motor vehicle diesel fuel or motor
vehicle diesel fuel additives:
(i) The location, date, time and storage tank or truck
identification for each sample collected;
(ii) The name and title of the person who collected the sample and
the person who performed the testing; and
(iii) The results of the tests for sulfur content (including where
applicable the test results with and without application of the
adjustment factor under Sec. 80.580(a)(6) or other standard content,
and the volume of product in the storage tank or container from which
the sample was taken; and
(3) The actions the party has taken, if any, to stop the sale or
distribution of any motor vehicle diesel fuel found not to be in
compliance with the sulfur standards specified in this subpart, and the
actions the party has taken, if any, to identify the cause of any
noncompliance and prevent future instances of noncompliance.
(b) * * *
(4) A record designating the batch as motor vehicle diesel fuel
meeting the 500 ppm sulfur standard or as motor vehicle diesel fuel
meeting the 15 ppm sulfur standard.
* * * * *
(7) Information regarding credits, kept separately for each
calendar year compliance period, kept separately for each refinery and
in the case of importers, kept separately for imports into each CTA,
and designated as motor vehicle diesel fuel credits and kept
[[Page 28545]]
separately from NRLM credits, as follows:
* * * * *
(c) Records that must be kept by parties in the nonroad,
locomotive, and marine diesel fuel and diesel fuel additive
distribution systems. Beginning June 1, 2007, or beginning June 1, 2006
for NRLM diesel fuel produced or imported by a refiner or importer
subject to the non-highway baseline starting June 1, 2006 under
Sec. Sec. 80.534 and 80.535, whichever is earlier, any person who
produces, imports, sells, offers for sale, dispenses, distributes,
supplies, offers for supply, stores, or transports nonroad, locomotive
and marine diesel fuel subject to the provisions of this subpart, must
keep the following records:
(1) The applicable product transfer documents required under Sec.
80.590;
(2) For any sampling and testing for sulfur content under
Sec. Sec. 80.580 and 80.581 for a batch of NRLM diesel fuel produced
or imported and subject to the 15 ppm sulfur standard or any sampling
and testing for sulfur content as part of a quality assurance testing
program, and any sampling and testing for the cetane index, aromatics
content or marker under Sec. 80.582, of NRLM diesel fuel, NRLM fuel
additives or heating oil:
(i) The location, date, time and storage tank or truck
identification for each sample collected;
(ii) The name and title of the person who collected the sample and
the person who performed the testing;
(iii) The results of the tests for sulfur content (including where
applicable the test results with and without application of the
adjustment factor under Sec. 80.580(a)(6) or other standard content,
and the volume of product in the storage tank or container from which
the sample was taken; and
(3) The actions the party has taken, if any, to stop the sale or
distribution of any nonroad, locomotive or marine diesel fuel found not
to be in compliance with the sulfur standards specified in this
subpart, and the actions the party has taken, if any, to identify the
cause of any noncompliance and prevent future instances of
noncompliance.
(d) Additional records to be kept by refiners and importers of
nonroad, locomotive and marine diesel fuel subject to non-highway
baseline, credit provisions or small refiner or hardship provisions.
Beginning June 1, 2007, or June 1, 2006, pursuant to the provisions of
Sec. Sec. 80.534 and 80.535, as applicable, any refiner producing
diesel fuel subject to a sulfur standard under Sec. Sec. 80.510,
80.536, 80.554, 80.660 or 80.561 for each of its refineries, and any
importer importing such diesel fuel for each area under Sec.
80.531(a)(5), shall keep records that include the following information
for each batch of NRLM diesel fuel or heating oil produced or imported:
(1) The batch volume;
(2) The batch number, assigned under the batch numbering procedures
under Sec. 80.65(d)(3).
(3) The date of production or import.
(4) A record designating the batch as:
(i) NRLM, NR, LM or heating oil, as applicable;
(ii) Meeting the 500 ppm requirements of Sec. 80.510(a), the 15
ppm requirements of Sec. 80.510(b), the applicable standard under
Sec. 80.536, the applicable small refiner standard under Sec. 80.554,
or other applicable standard;
(iii) Dyed or undyed with visible evidence of dye solvent red 164;
or
(iv) Marked or unmarked with solvent yellow 124.
(5) For foreign refiners, the designations and other records
required to be kept under Sec. 80.620.
(6) In the case of importers, the designations and other records
required under Sec. 80.592.
(7) Information regarding credits, kept separately for each
calendar year calculation period, kept separately for each refinery and
importer, and for importers, kept separately for each CTA under Sec.
80.531(a)(5), and kept separately from motor vehicle diesel fuel
credits.
(i) The number in the refiner's or importer's possession at the
beginning of the of the calendar year;
(ii) The number generated;
(iii) The number used;
(iv) If any were obtained from or transferred to other parties, for
each other party, its name, its EPA refiner or importer registration
number consistent with Sec. 80.597, in the case of credits generated
by an importer the port and CTA of import of the diesel fuel that
generated the credits, and the number obtained from, or transferred to,
the other party;
(v) The number in the refiner's or importer's possession that will
carry over into the subsequent calendar year compliance period; and
(vi) Commercial documents that establish each transfer of credits
from the transferor to the transferee.
(8) The calculations used to determine compliance with the volume
percentage requirements of this subpart;
(9) The calculations used to determine the number of credits
generated;
(10) A copy of reports submitted to EPA under Sec. 80.599.
(e) Additional records importers must keep. Any importer shall keep
records that identify and verify the source of each batch of certified
diesel fuel program foreign refiner (DFR)-Diesel and non-certified DFR-
Diesel imported and demonstrate compliance with the requirements under
Sec. 80.620.
(f) Length of time records must be kept. The records required in
this section shall be kept for five years from the date they were
created, except that records relating to credit transfers shall be kept
by the transferor for 5 years from the date the credits were
transferred, and shall be kept by the transferee for 5 years from the
date the credits were transferred, used or terminated, whichever is
later.
(g) Make records available to EPA. On request by EPA, the records
required in this section must be made available to the Administrator or
the Administrator's representative. For records that are electronically
generated or maintained, the equipment and software necessary to read
the records shall be made available, or if requested by EPA, electronic
records shall be converted to paper documents which shall be provided
to the Administrator's authorized representative.
47. Section 80.594 is amended by revising the section heading to
read as follows:
Sec. 80.594 What are the pre-compliance reporting requirements for
motor vehicle diesel fuel?
48. Section 80.597 is revised to read as follows:
Sec. 80.597 What are the registration requirements?
The following registration requirements apply under this subpart:
(a) Registration for motor vehicle diesel fuel. Refiners having any
refinery that is subject to a sulfur standard under Sec. 80.520(a),
and importers importing such diesel fuel, must provide EPA the
information under Sec. 80.76 no later than December 31, 2001, if such
information has not been provided under the provisions of 40 CFR Part
80. In addition, for each import facility, the same identifying
information as required for each refinery under Sec. 80.76(c) must be
provided.
(b) Registration for nonroad, locomotive and marine diesel.
Refiners and importers that may produce or supply nonroad, locomotive
and/or diesel fuel by June 1, 2007, must provide EPA the information
under Sec. 80.76 no later than December 31, 2004, if such information
has not been provided under the provisions of 40 CFR Part 80. In
addition, for each import facility, the same identifying information as
required for each refinery under Sec. 80.76(c) must be provided.
[[Page 28546]]
49. A new Sec. 80.598 is added to read as follows:
Sec. 80.598 What are the pre-compliance reporting requirements for
nonroad, locomotive and marine diesel?
(a) Beginning on June 1, 2005, and for each year until June 1,
2009, or until the entity produces or imports nonroad fuel meeting the
15 ppm standard of Sec. 80.510(b), all refiners and importers planning
to produce or import nonroad, locomotive or marine diesel fuel, shall
submit the following information to EPA:
(1) Any changes to the information submitted for the company
registration;
(2) Any changes to the information submitted for any refinery or
import facility registration;
(3) An estimate of the annual production or importation, in
gallons, of motor vehicle and nonroad, locomotive or marine fuel
produced or imported at each refinery or import facility for diesel
fuels produced from crude oil, and the volumes of each grade of these
fuels from other sources;
(4) If expecting to participate in the credit trading program,
estimates of the number of credits to be generated and/or used each
year the program;
(5) Information regarding engineering plans (e.g., design and
construction), the status of obtaining any necessary permits, and
capital commitments for making the necessary modifications to produce
low sulfur nonroad, locomotive or marine fuel, and actual construction
progress. The pre-compliance reports due in 2006 and later years must
provide an update of the progress in each of these areas.
(b) Reports under this section may be submitted in conjunction with
reports submitted under Sec. 80.594.
50. A new Sec. 80.599 is added to read as follows:
Sec. 80.599 What are the annual reporting requirements for refiners
and importers of nonroad, locomotive and marine diesel fuel?
Beginning with the annual compliance period that begins June 1,
2007, or June 1, 2006 for refiners or importers who elects not to dye
NRLM fuel starting June 1, 2006, any refiner or importer who produces
or imports nonroad, locomotive or marine diesel fuel must submit annual
compliance reports for each refinery, or for importer, that contain the
information required in this section, and such other information as EPA
may require.
(a) All refiners and importers. (1) The refiner or importer's
company name and the EPA company and refinery registration number, or
CTA of import information.
(2) A declaration whether the refiner or importer is electing to
dye its NRLM fuel with visible evidence of dye solvent red 164 or
whether it is electing to utilize the non-highway baseline under
Sec. Sec. 80.534-80.535 for the compliance period, and if the refiner
is a small refiner, a statement of which small refiner option it is
subject to.
(b) Refiners and importers subject to the non-highway baseline.
Refiners for each refinery, or for each importer separately for each
CTA, that elects to not dye its NRLM fuel and instead utilize the non-
highway baseline:
(1) The total volumes of the following types of fuel produced or
imported during the compliance period:
(i) 15 ppm sulfur content motor vehicle diesel fuel and NRLM diesel
fuel.
(ii) 500 ppm sulfur content motor vehicle diesel fuel, nonroad
diesel fuel or locomotive and marine diesel fuel.
(iii) Heating oil.
(iv) High sulfur NRLM diesel fuel.
(2) The volume percentages under Sec. 80.534 and compliance with
the requirement of Sec. 80.534(d)(2).
(c) Small refiners. (1) For each refinery of small refiners subject
to the provisions of Sec. Sec. 80.551(g) and 80.554(a) for each
compliance period starting June 1, 2007 and ending May 31, 2010,
report:
(i) The total volume of NRLM diesel fuel produced that is exempt
from the sulfur standard of Sec. 80.510(a).
(ii) The total volume NRLM diesel fuel produced as defined in Sec.
80.534.
(iii) The volume of NRLM diesel fuel produced having a sulfur
content of 500 ppm or less.
(iv) The total volume, if any, of NRLM diesel fuel subject to the
500 ppm sulfur standard that had a sulfur content exceeding 500 ppm.
(2) For each refinery of small refiners subject to the provisions
of Sec. Sec. 80.551(g) and 80.554(b), for each compliance period
starting June 1, 2010 and ending May 31, 2014, report:
(i) The total volume of NRLM diesel fuel produced subject to the
500 ppm sulfur standard of Sec. 80.510(a).
(ii) The total volume NRLM diesel fuel produced as defined in Sec.
80.534.
(iii) The total volume of locomotive or marine diesel fuel marked
under Sec. 80.510(c).
(iv) The volume of NRLM diesel fuel produced having a sulfur
content of 15 ppm or less.
(v) The total volume, if any, of NRLM diesel fuel subject to the 15
ppm sulfur standard that had a sulfur content in excess of 15 ppm.
(3) For each refinery of a small refiner that elects to produce
NRLM diesel fuel subject to the 15 ppm nonroad diesel fuel starting
June 1, 2006 under Sec. Sec. 80.551(g) and 80.554(d) for each
compliance period report:
(i) The total volume of NRLM diesel fuel produced having a sulfur
content of 15 ppm or less.
(ii) The total volume of NRLM diesel fuel produced as defined under
Sec. 80.534.
(iii) The total percentage of NRLM as defined under Sec. 80.534
produced having a sulfur content of 15 ppm or less.
(iv) The number of credits purchased, if any, to cover any deficit
as provided in Sec. 80.554(d)(3).
(v) A report of the small refiner's progress toward compliance with
the gasoline standards under Sec. Sec. 80.240 and 80.255.
(d) Credit generation and use. Information regarding the
generation, use, transfer and retirement of credits, separately by
refinery and for importers separately by CTA, including:
(1) The number of credits at the beginning of the compliance
period;
(2) The number of credits generated;
(3) The number of credits used;
(4) If any credits were obtained from or transferred to other
refineries or import ports, for each other refinery or importer, the
name, address, the EPA company registration number, and the number of
credits obtained from or transferred to the other party;
(5) The number of credits retired; and
(6) The credit balance at the start and end of the compliance
period.
(e) Batch reports. For each batch of motor vehicle diesel fuel,
nonroad, locomotive and marine diesel fuel and heating oil produced or
imported during the compliance period under paragraphs (b) and (c) of
this section:
(1) The batch volume.
(2) The batch number assigned using the batch numbering conventions
under Sec. 80.65(d)(3) and the appropriate designation under Sec.
80.523.
(3) The date of production or import.
(4) For each batch provide the information specified in paragraph
(b)(1) of this section.
(5) The sulfur content and cetane and aromatics content of the
fuel;
(6) Whether the batch was dyed with visible evidence of dye solvent
red 164 before leaving the refinery or import facility or was undyed.
(7) Certification that any batch of heating oil produced or
imported under the provisions of Sec. 80.534 starting June 1, 2006 or
June 1, 2007, as applicable, through May 31, 2010 was marked with the
specified chemical marker pursuant to Sec. 80.510(c) or any batch of
locomotive and marine diesel fuel produced or imported starting June 1,
2010 through
[[Page 28547]]
May 31, 2014 was marked pursuant to Sec. 80.510(c), before leaving the
refinery or import facility.
(f) Additional reporting requirements for importers. Importers of
NRLM diesel fuel are subject to the following additional requirements:
(1) The reporting requirements under Sec. 80.620, if applicable.
(2) Importers must exclude certified DFR-Diesel from calculations
under this section.
(g) Report submission. Any report required by this section shall
be:
(1) On forms and following procedures specified by the
Administrator of EPA;
(2) Signed and certified as meeting all the applicable requirements
of this subpart by the owner or a responsible corporate officer of the
refiner or importer; and
(3) Except for small refiners subject to Sec. 80.554(d), submitted
to EPA no later than August 31 each year for the prior June 1-May 31
period. Small refiners subject to the provisions of Sec. 80.554(d),
reports must be submitted the last day of February for the previous
reporting period.
(h) Sunset dates for reporting requirements under this section.
(1) For small refiners under paragraph (c)(1) of this section, no
reports shall be required under this section after August 31, 2010.
(2) For small refiners under paragraph (c)(2) of this section, no
reports shall be required under this section after August 31, 2014.
(3) For small refiners under paragraph (c)(3) of this section, no
reports shall be required under this section after February 28, 2010.
(4) For all other refiners, no reports shall be required under this
section after August 31, 2012.
51. Section 80.600 is amended by revising the section heading and
paragraphs (a), (c)(3)(iv), (c)(4)(iv), (d)(3), and (f) to read as
follows:
Sec. 80.600 What are the requirements for obtaining an exemption for
motor vehicle diesel fuel or nonroad, locomotive or marine diesel fuel
used for research, development or testing purposes?
(a) Written request for R&D exemption. Any person may receive an
exemption from the provisions of this subpart for diesel fuel used for
research, development, or testing (``R&D'') purposes by submitting the
information listed in paragraph (c) of this section to:
Director (6406J), Transportation and Regional Programs Division, U.S.
Environmental Protection Agency, Ariel Rios Building 1200 Pennsylvania
Avenue, NW., Washington, DC 20460 (postal mail); or
Director (6406J), Transportation and Regional Programs Division, U.S.
Environmental Protection Agency 501 3rd Street, NW., Washington, DC
20001 (express mail/courier); and
Director (2242A), Air Enforcement Division, U.S. Environmental
Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460.
* * * * *
(c) * * *
(3) * * *
(iv) The quantity of diesel fuel which does not comply with the
requirements of Sec. Sec. 80.520 through 80.526 for motor vehicle
diesel fuel or Sec. 80.510 for nonroad, locomotive or marine diesel.
(4) * * *
(iv) The manner in which the party will ensure that the R&D fuel
will be segregated from motor vehicle diesel fuel or nonroad,
locomotive or marine fuel, as applicable, and how fuel pumps will be
labeled to ensure proper use of the R&D diesel fuel;
* * * * *
(d) * * *
(3) The R&D diesel fuel must be kept segregated from non-exempt
motor vehicle diesel and/or from non-exempt nonroad, locomotive or
marine fuel, as appropriate, at all points in the distribution system.
* * * * *
(f) Effects of exemption. Motor vehicle diesel fuel or nonroad,
locomotive or marine diesel fuel that is subject to an R&D exemption
under this section is exempt from other provisions of this subpart
provided that the fuel is used in a manner that complies with the
purpose of the program under paragraph (c) of this section and the
requirements of this section.
* * * * *
52. Section 80.601 is revised to read as follows:
Sec. 80.601 What requirements apply to diesel fuel for use in the
Territories?
The sulfur standards of Sec. 80.520(a)(1) and (c) related to motor
vehicle diesel fuel, and of Sec. 80.510(a) and (b) related to nonroad,
locomotive and marine diesel fuel, do not apply to diesel fuel that is
produced, imported, sold, offered for sale, supplied, offered for
supply, stored, dispensed, or transported for use in the Territories of
Guam, American Samoa or the Commonwealth of the Northern Mariana
Islands provided that such diesel fuel is:
(a) Designated by the refiner or importer as high sulfur diesel
fuel only for use in Guam, American Samoa, or the Commonwealth of the
Northern Mariana Islands;
(b) Used only in Guam, American Samoa, or the Commonwealth of the
Northern Mariana Islands;
(c) Accompanied by documentation that complies with the product
transfer document requirements of Sec. 80.590(b)(1); and
(d) Segregated from non-exempt motor vehicle diesel fuel and/or
from non-exempt nonroad, locomotive or marine diesel fuel at all points
in the distribution system from the point the diesel fuel is designated
as exempt fuel only for use in Guam, American Samoa, or the
Commonwealth of the Northern Mariana Islands, while the exempt fuel is
in the United States but outside these Territories.
53. Section 80.602 is amended by revising the section heading,
introductory text, and paragraphs (a) and (b)(1) through (b)(4) to read
as follows:
Sec. 80.602 What exemption applies to diesel fuel used in vehicles or
nonroad engines having a national security exemption from motor vehicle
emissions standards?
The motor vehicle diesel fuel standards of Sec. 80.520(a)(1),
(a)(2), and (c) and the nonroad, locomotive and marine diesel standards
of Sec. 80.510(a) and (b) do not apply to diesel fuel that is
produced, imported, sold, offered for sale, supplied, offered for
supply, stored, dispensed, or transported for use in vehicles or
nonroad equipment for which EPA has granted a national security
exemption under 40 CFR 85.1708 from motor vehicle emissions standards
under 40 CFR part 86 or from nonroad emissions standards under 40 CFR
Parts 89 or 1068, provided that such fuel is:
(a) Used only in tactical military motor vehicles or tactical
military nonroad equipment having an EPA national security exemption
from the motor vehicle emissions standards under 40 CFR 85.1708 from
motor vehicle emissions standards under 40 CFR Part 86 or from nonroad
emissions standards under 40 CFR part 89 or 1068; or
(b) * * *
(1) Used only in vehicles or equipment identified in paragraph (a)
of this section or this paragraph (b);
(2) Accompanied by product transfer documents as required under
Sec. 80.590.
(3) Segregated from non-exempt motor vehicle diesel fuel or from
non-exempt nonroad, locomotive or marine diesel fuel, as applicable at
all points in the distribution system; and
(4) Dispensed from a fuel pump stand, fueling truck or tank that is
labeled
[[Page 28548]]
under the provisions of Sec. Sec. 80.570(c), 80.571, 80.572, or
80.573. Any such fuel pump stand, fueling truck or tank may also be
labeled with the appropriate designation of the fuel, such as ``JP-5''
or ``JP-8''.
54. Section 80.610 is revised to read as follows:
Sec. 80.610 What acts are prohibited under the diesel fuel sulfur
program?
Except as provided in 40 CFR 69.51 and 69.52, and in Sec. 80.601,
no person shall:
(a) Standard, dye, marker or product segregation violation. (1)
Produce, import, sell, offer for sale, dispense, supply, offer for
supply, store or transport motor vehicle, nonroad, locomotive or marine
diesel fuel, or heating oil that does not comply with the applicable
standards, dye, or marker requirements under Sec. Sec. 80.510 or
80.520 or the product segregation requirements under Sec. Sec. 80.536
and 80.554.
(2) Except as provided in paragraph (a)(3) of this section,
starting June 1, 2006, produce, import, sell, offer for sale, dispense,
supply, offer for supply, store or transport any diesel fuel for use in
motor vehicle or nonroad, locomotive or marine engines that contains
greater than 0.12 milligrams per liter of solvent yellow 124.
(3) Starting June 1, 2010, produce, import, sell, offer for sale,
dispense, supply, offer for supply, store or transport any diesel fuel
for use in motor vehicles or nonroad engines that contains greater than
0.12 milligrams per liter of solvent yellow 124.
(4) Sell, offer for sale, dispense, supply, offer for supply, store
or transport heating oil for use in nonroad, locomotive or marine
engines.
(5) Sell, offer for sale, dispense, supply, offer for supply, store
or transport locomotive or marine diesel fuel produced or imported
under Sec. 80.510(c)(2) for use in nonroad engines.
(b) Additive violation. (1) Produce, import, sell, offer for sale,
dispense, supply, offer for supply, store or transport any motor
vehicle or nonroad diesel fuel additive for use at a downstream
location that does not comply with the requirements under Sec.
80.521(a) or (b), as applicable.
(2) Blend or permit the blending into motor vehicle diesel fuel or
nonroad diesel fuel at a downstream location, or use, or permit the
use, as motor vehicle diesel fuel or nonroad diesel fuel, of any
additive which does not comply with the requirements of Sec. 80.521(a)
or (b), as applicable.
(c) Used motor oil violation. Introduce into the fuel system of
model year 2007 or later diesel motor vehicles or model year 2011 or
later nonroad engines or other nonroad engines certified for the use of
15 ppm sulfur content fuel, or permit the introduction into the fuel
system of such vehicles or nonroad engines of used motor oil, or used
motor oil blended with diesel fuel, which does not comply with the
requirements of Sec. 80.522.
(d) Improper fuel usage violation. (1) Introduce, or permit the
introduction of, diesel fuel into model year 2007 or later diesel motor
vehicles, and beginning December 1, 2010 into any diesel motor vehicle,
which does not comply with the standards and dye requirements of Sec.
80.520(a) and (b);
(2) Produce, import, sell, offer for sale, dispense, offer for
supply, store, or transport for use in model year 2007 or later diesel
motor vehicles, or introduce or permit the introduction into such motor
vehicles, motor vehicle diesel fuel that is identified as other than
diesel fuel complying with the 15 ppm sulfur standard; and beginning
December 1, 2010, diesel fuel for use in or introduced into any diesel
motor vehicle;
(3) Introduce, or permit the introduction of, diesel fuel into
nonroad engine equipment or locomotive or marine engines which does not
comply with the applicable standards, dye and marker requirements of
Sec. 80.510 or Sec. 80.511, as applicable;
(4) Produce, import, sell, offer for sale, dispense, offer for
supply, store, or transport for use in model year 2011 or later nonroad
equipment diesel engines or other nonroad equipment engines certified
for use of 15 ppm sulfur content fuel, or introduce or permit the
introduction into such nonroad equipment engines, diesel fuel that is
identified as other than diesel fuel complying with the 15 ppm sulfur
standard; and beginning December 1, 2014, diesel fuel for use in or
introduced into any diesel nonroad equipment;
(5) Produce, import, sell, offer for sale, dispense, offer for
supply, store, or transport for use in locomotive or marine engines, or
introduce or permit the introduction into locomotive or marine engines,
diesel fuel not complying with the 500 ppm sulfur standard, as of the
applicable dates specified in Sec. Sec. 80.510 and 80.511; and
beginning December 1, 2010, diesel fuel for use in any locomotive or
marine engines.
(e) Cause another party to violate. Cause another person to commit
an act in violation of paragraphs (a) through (d) of this section.
(f) Cause violating fuel or additive to be in the distribution
system. Cause motor vehicle diesel fuel, or nonroad, locomotive or
marine diesel fuel, to be in the diesel fuel distribution system which
does not comply with the applicable standard, dye, marker or product
segregation requirements of Sec. Sec. 80.536 or 80.554 and paragraphs
(a)(2) and (a)(3) of this section, or cause any motor vehicle diesel
fuel additive or nonroad diesel fuel additive to be in the diesel fuel
additive distribution system which does not comply with the applicable
sulfur, cetane, and/or aromatics standards of Sec. 80.521.
55. Section 80.611 is revised to read as follows:
Sec. 80.611 What evidence may be used to determine compliance with
the prohibitions and requirements of this subpart and liability for
violations of this subpart?
(a) Compliance with sulfur, cetane, and aromatics standards and
marker requirements. Compliance with the standards in Sec. Sec.
80.510, 80.520, 80.521, and 80.522 shall be determined based on the
level of the applicable component or parameter, using the sampling
methodologies specified in Sec. 80.330(b), as applicable, and an
approved testing methodology under the provisions of Sec. Sec.
80.580--80.586 for sulfur; Sec. 80.2(w) for cetane index; Sec.
80.2(z) for aromatic content; and Sec. 80.582 for fuel marker. Any
evidence or information, including the exclusive use of such evidence
or information, may be used to establish the level of the applicable
component or parameter in the diesel fuel or additive, or motor oil to
be used in diesel fuel, if the evidence or information is relevant to
whether that level would have been in compliance with the standard if
the regulatory sampling and testing methodology had been correctly
performed. Such evidence may be obtained from any source or location
and may include, but is not limited to, test results using methods
other than the compliance methods in this paragraph, business records,
and commercial documents.
(b) Compliance with other requirements. Determination of compliance
with the requirements of this subpart other than the standards
described in paragraph (a) of this section and in Sec. Sec. 80.510,
80.520, 80.521, and 80.522, and determination of liability for any
violation of this subpart, may be based on information obtained from
any source or location. Such information may include, but is not
limited to, business records and commercial documents.
[[Page 28549]]
56. Section 80.612 is amended by revising paragraph (a) to read as
follows:
Sec. 80.612 Who is liable for violations of this subpart?
(a) Persons liable for violations of prohibited acts. (1) Standard,
dye, marker, product segregation, additives, used motor oil, heating
oil and introduction violations. (i) Any refiner, importer,
distributor, reseller, carrier, retailer, or wholesale purchaser-
consumer who owned, leased, operated, controlled or supervised a
facility where a violation of Sec. Sec. 80.610(a) through (d)
occurred, or any other person who violates Sec. 80.610(a) through (d),
is deemed liable for the applicable violation.
(ii) Any person who causes another person to violate Sec. Sec.
80.610(a) through (d) is liable for a violation of Sec. 80.610(e).
(iii) Any refiner, importer, distributor, reseller, carrier,
retailer, or wholesale purchaser-consumer who produced, imported, sold,
offered for sale, dispensed, supplied, offered to supply, stored,
transported, or caused the transportation or storage of, diesel fuel
that violates Sec. 80.610(a), is deemed in violation of Sec.
80.610(e).
(iv) Any person who produced, imported, sold, offered for sale,
dispensed, supplied, offered to supply, stored, transported, or caused
the transportation or storage of a diesel fuel additive which is used
in motor vehicle diesel fuel or nonroad diesel fuel that is found to
violate Sec. 80.610(a), is deemed in violation of Sec. 80.610(e).
(2) Cause violating diesel fuel or additive to be in the
distribution system. Any refiner, importer, distributor, reseller,
carrier, retailer, or wholesale purchaser-consumer or any other person
who owned, leased, operated, controlled or supervised a facility from
which diesel fuel or additive was released into the diesel fuel or
additive distribution system which does not comply with the applicable
standards or dye requirements of Sec. Sec. 80.510, 80.511, 80.520,
80.521, 80.536 or 80.554 is deemed in violation of Sec. 80.610(f).
(3) Branded refiner/importer liability. Any refiner or importer
whose corporate, trade, or brand name, or whose marketing subsidiary's
corporate, trade, or brand name appeared at a facility where a
violation of Sec. 80.610(a) occurred, is deemed in violation of Sec.
80.610(a).
(4) Carrier causation. In order for a diesel fuel or diesel fuel
additive carrier to be liable under paragraphs (a)(1)(ii), (iii) or
(iv) of this section, as applicable, EPA must demonstrate, by
reasonably specific showing by direct or circumstantial evidence, that
the carrier caused the violation.
(5) Parent corporation. Any parent corporation is liable for any
violations of this subpart that are committed by any subsidiary.
(6) Joint venture. Each partner to a joint venture is jointly and
severally liable for any violation of this subpart that occurs at the
joint venture facility or is committed by the joint venture operation.
* * * * *
57. Section 80.613 is revised to read as follows:
Sec. 80.613 What defenses apply to persons deemed liable for a
violation of a prohibited act under Subpart I?
(a) Presumptive liability defenses. (1) Any person deemed liable
for a violation of a prohibition under Sec. 80.612 (a)(1)(i) or (iii),
(a)(2), or (a)(3), will not be deemed in violation if the person
demonstrates:
(i) The violation was not caused by the person or the person's
employee or agent;
(ii) Product transfer documents account for fuel or additive found
to be in violation and indicate that the violating product was in
compliance with the applicable requirements when it was under the
party's control;
(iii) The person conducted a quality assurance sampling and testing
program, as described in paragraph (d) of this section, except for
those parties subject to the provisions of paragraph (a)(1)(iv) or (v)
of this section. A carrier may rely on the quality assurance program
carried out by another party, including the party who owns the diesel
fuel in question, provided that the quality assurance program is
carried out properly. Retailers, wholesale purchaser-consumers, and
ultimate consumers of diesel fuel are not required to conduct quality
assurance programs;
(iv) For refiners and importers of diesel fuel subject to the 15
ppm standard under Sec. Sec. 80.510(b) or 80.520(a)(1), or the 500 ppm
sulfur standard under Sec. 80.510(a), test results which:
(A) Were conducted according to an appropriate test methodology
approved or designated under Sec. Sec. 80.580 and 80.584-80.586; and
(B) Establish that, when it left the party's control, the sulfur
content of the diesel fuel did not exceed the 15 ppm standard or the
500 ppm standard, as applicable;
(C) In lieu of testing for marker solvent yellow 124 concentration
a refiner or importer may present evidence of an oversight program,
including records of marker inventory, purchase and additization, and
records of periodic inspection and calibration of additization
equipment that ensures that marker is added to heating oil under Sec.
80.510(c)(1) or locomotive and marine diesel fuel under Sec.
80.510(c)(2) in the required concentration; and
(v) For refiners and importers of heating oil or LM diesel fuel
subject to the marker requirements under Sec. 80.510(c), data which
demonstrates that when it left it left the parties custody, the marker
content was greater than or equal to 0.6 mg/L; and
(vi) For any person who, at a downstream location, blends a diesel
fuel additive subject to the requirements of Sec. 80.521(b) into motor
vehicle diesel fuel or nonroad diesel fuel subject to the 15 ppm sulfur
standard under Sec. Sec. 80.520(a) or 80.510(b), except a blender who
blends additives into fuel tanker trucks at a truck loading rack
subject to the provisions of (d)(2) of this section, test results which
are conducted subsequent to the blending of the additive into the fuel,
and which comply with the requirements of paragraphs (a)(4)(iv)(A) and
(B) of this section.
(2) Any party deemed liable for a violation under Sec.
80.612(a)(1)(iv), in regard to a diesel fuel additive subject to the
requirements of Sec. 80.521(a), will not be deemed in violation if the
person demonstrates that:
(i) Product transfer document(s) account for the additive in the
fuel found to be in violation, which comply with the requirements under
Sec. 80.591(a), and indicate that the additive was in compliance with
the applicable requirements while it was under the party's control; and
(ii) For the additive's manufacturer or importer, test results
which accurately establish that, when it left the party's control, the
additive in the diesel fuel determined to be in violation did not have
a sulfur content in excess of 15 ppm.
(A) Analysis of the additive sulfur content pursuant paragraph
(a)(2) of this section may be conducted at the time the batch was
manufactured or imported, or on a sample of that batch which the
manufacturer or importer retains for such purpose for a minimum of two
years from the date the batch was manufactured or imported;
(B) After two years from the date the additive batch was
manufactured or imported, the additive manufacturer or importer is no
longer required to retain samples for the purpose of complying with the
testing requirements of this paragraph (a)(2) of this section.
[[Page 28550]]
(C) The analysis of the sulfur content of the additive must be
conducted pursuant to the requirements of Sec. 80.580.
(3) Any person who is deemed liable for a violation under Sec.
80.612(a)(1)(iv) with regard to a diesel fuel additive subject to the
requirements of Sec. 80.521(b), will not be deemed in violation if the
person demonstrates that:
(i) The violation was not caused by the party or the party's
employee or agent;.
(ii) Product transfer document(s) which comply with the additive
information requirements under Sec. 80.591(b), account for the
additive in the fuel found to be in violation, and indicate that the
additive was in compliance with the applicable requirements while it
was under the party's control;
(iii) For the additive's manufacturer or importer, test results
which accurately establish that, when it left the party's control, the
additive in the diesel fuel determined to be in violation was in
conformity with the information on the additive product transfer
document pursuant to the requirements of Sec. 80.591(b). The testing
procedures applicable under paragraph (a)(2) of this section, also
apply under paragraph (a)(3) of this section; and
(b) Branded refiner defenses. In the case of a violation found at a
facility operating under the corporate, trade or brand name of a
refiner or importer, or a refiner's or importer's marketing subsidiary,
the refiner or importer must show, in addition to the defense elements
required under paragraph (a)(1) of this section, that the violation was
caused by:
(1) An act in violation of law (other than the Clean Air Act or
this Part 80), or an act of sabotage or vandalism;
(2) The action of any refiner, importer, retailer, distributor,
reseller, oxygenate blender, carrier, retailer or wholesale purchaser-
consumer in violation of a contractual agreement between the branded
refiner or importer and the person designed to prevent such action, and
despite periodic sampling and testing by the branded refiner or
importer to ensure compliance with such contractual obligation; or
(3) The action of any carrier or other distributor not subject to a
contract with the refiner or importer, but engaged for transportation
of diesel fuel, despite specifications or inspections of procedures and
equipment which are reasonably calculated to prevent such action.
(c) Causation demonstration. Under paragraph (a)(1) of this section
for any person to show that a violation was not caused by that person,
or under paragraph (b) of this section to show that a violation was
caused by any of the specified actions, the person must demonstrate by
reasonably specific showing, by direct or circumstantial evidence, that
the violation was caused or must have been caused by another person and
that the person asserting the defense did not contribute to that other
person's causation.
(d) Quality assurance and testing program. To demonstrate an
acceptable quality assurance program under paragraph (a)(1)(iii) of
this section, a person must present evidence of the following:
(1) A periodic sampling and testing program to ensure the diesel
fuel or additive the person sold, dispensed, supplied, stored, or
transported, meets the applicable standards; and
(2) For those parties who, at a downstream location, blend diesel
fuel additives subject to the requirements of Sec. 80.521(b) into fuel
trucks at a truck loading rack, the periodic sampling and testing
program required under this paragraph (d) must ensure, by taking into
account the greater risk of noncompliance created through use of a high
sulfur additive, that the diesel fuel into which the additive was
blended meets the applicable standards subsequent to the blending;
(3) On each occasion when diesel fuel or additive is found not in
compliance with the applicable standard:
(i) The person immediately ceases selling, offering for sale,
dispensing, supplying, offering for supply, storing or transporting the
non-complying product; and
(ii) The person promptly remedies the violation and the factors
that caused the violation (for example, by removing the non-complying
product from the distribution system until the applicable standard is
achieved and taking steps to prevent future violations of a similar
nature from occurring).
(4) For any carrier who transports diesel fuel or additive in a
tank truck, the quality assurance program required under this paragraph
(d) need not include its own periodic sampling and testing of the
diesel fuel or additive in the tank truck, but in lieu of such tank
truck sampling and testing, the carrier shall demonstrate evidence of
an oversight program for monitoring compliance with the requirements of
this subpart relating to the transport or storage of such product by
tank truck, such as appropriate guidance to drivers regarding
compliance with the applicable sulfur standard, product segregation and
product transfer document requirements, and the periodic review of
records received in the ordinary course of business concerning diesel
fuel or additive quality and delivery.
58. Section 80.614 is revised to read as follows:
Sec. 80.614 What penalties apply under this subpart?
(a) Any person liable for a violation under Sec. 80.612 is subject
to civil penalties as specified in section 205 of the Clean Air Act for
every day of each such violation and the amount of economic benefit or
savings resulting from each violation.
(b)(1) Any person liable under Sec. 80.612(a)(1) for a violation
of an applicable standard or requirement under Sec. Sec. 80.510,
80.511, 80.520, 80.524, or 80.554, or of causing another party to
violate such standard or requirement, is subject to a separate day of
violation for each and every day the non-complying diesel fuel remains
any place in the distribution system.
(2) Any person liable under Sec. 80.612(a)(2) for causing motor
vehicle diesel fuel or nonroad, locomotive or marine diesel fuel, or
heating oil, to be in the distribution system which does not comply
with an applicable standard or requirement of Sec. Sec. 80.510,
80.511, or 80.520 is subject to a separate day of violation for each
and every day that the non-complying diesel fuel remains any place in
the diesel fuel distribution system.
(3) Any person liable under Sec. 80.612(a)(1) for blending into
diesel fuel an additive violating the applicable sulfur standard
pursuant to the requirements of Sec. 80.521(a) or (b), as appropriate,
or of causing another party to so blend or add such an additive, is
subject to a separate day of violation for each and every day the motor
vehicle diesel fuel or nonroad diesel fuel into which the noncomplying
additive was blended, remains any place in the fuel distribution
system.
(4) For purposes of this paragraph (b), the length of time the
motor vehicle diesel fuel or nonroad, locomotive or marine diesel fuel,
or heating oil in question remained in the diesel fuel distribution
system is deemed to be twenty-five days, unless a person subject to
liability or EPA demonstrates by reasonably specific showings, by
direct or circumstantial evidence, that the non-complying motor
vehicle, nonroad, locomotive or marine diesel fuel, or heating oil,
remained in the distribution system for fewer than or more than twenty-
five days.
(c) Any person liable under Sec. 80.612(b) for failure to meet, or
[[Page 28551]]
causing a failure to meet, a provision of this subpart is liable for a
separate day of violation for each and every day such provision remains
unfulfilled.
59. Section 80.620 is revised to read as follows:
Sec. 80.620 What are the additional requirements for diesel fuel
produced by foreign refineries subject to a temporary refiner
compliance option, non-highway baseline, hardship provisions, or motor
vehicle or nonroad locomotive and marine diesel fuel credit provisions?
(a) Definitions. (1) A foreign refinery is a refinery that is
located outside the United States, the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa, and the Commonwealth of the
Northern Mariana Islands (collectively referred to in this section as
``the United States'').
(2) A foreign refiner is a person who meets the definition of
refiner under Sec. 80.2(i) for a foreign refinery.
(3) A diesel fuel program foreign refiner (``DFR'') is a foreign
refiner that has been approved by EPA for participation in any motor
vehicle diesel fuel or nonroad, locomotive or marine diesel fuel
provision of Sec. Sec. 80.530 through 80.536, 80.540, 80.552, 80.553,
80.554, 80.560 or 80.561 (collectively referred to as ``diesel foreign
refiner program'').
(4) ``DFR-Diesel'' means diesel fuel produced at a DFR refinery
that is imported into the United States.
(5) ``Non-DFR-Diesel'' means diesel fuel that is produced at a
foreign refinery that has not been approved as a DFR foreign refiner,
diesel fuel produced at a DFR foreign refinery that is not imported
into the United States, and diesel fuel produced at a DFR foreign
refinery during a period when the foreign refiner has opted to not
participate in the DFR-Diesel foreign refiner program under paragraph
(c)(3) of this section.
(6) ``Certified DFR-Diesel'' means DFR-Diesel the foreign refiner
intends to include in the foreign refinery's compliance calculations
under any provisions of Sec. Sec. 80.530 through 80.536, 80.540,
80.552, 80.553, 80.554, 80.560 or 80.561 and does include in these
compliance calculations when reported to EPA.
(7) ``Non-Certified DFR-Diesel'' means DFR-Diesel fuel that a DFR
foreign refiner imports to the United States that is not Certified DFR-
Diesel.
(b) Baseline. For any foreign refiner to obtain approval under the
diesel foreign refiner program of subpart I of this part for any
refinery, it must apply for approval under the applicable provisions of
subpart I of this part. To obtain approval the refiner is required, as
applicable, to demonstrate a volume baseline for calendar years 1998
and 1999 for motor vehicle diesel fuel produced for use in the United
States under Sec. Sec. 80.595 and 80.596 or a non-highway baseline for
diesel fuel and heating oil produced for use in the United States for
the calendar years 2003 through 2005 under Sec. Sec. 80.533 and
80.534.
(1) The refiner shall follow the procedures, applicable to volume
baselines and using diesel fuel, or if applicable, heating oil, instead
of gasoline, in Sec. Sec. 80.91 through 80.93 to establish the volume
of motor vehicle diesel fuel that was produced at the refinery and
imported into the United States during 1998 and 1999 for purposes of
establishing a baseline under Sec. Sec. 80.595 and 80.596 or of diesel
fuel and heating oil produced at the refinery and imported into the
United States for the calendar years 2003 through 2005 for the purposes
of establishing a baseline under Sec. 80.533.
(2) In making determinations for foreign refinery baselines EPA
will consider all information supplied by a foreign refiner, and in
addition may rely on any and all appropriate assumptions necessary to
make such determinations.
(3) Where a foreign refiner submits a petition that is incomplete
or inadequate to establish an accurate baseline, and the refiner fails
to correct this deficiency after a request for more information, EPA
will not assign an individual refinery motor vehicle diesel fuel volume
baseline or a non-highway baseline.
(c) General requirements for DFR foreign refiners. A foreign
refiner of a refinery that is approved under the diesel foreign refiner
program of 40 CFR part 80, subpart I, must designate each batch of
diesel fuel produced at the foreign refinery that is exported to the
United States as either Certified DFR-Diesel or as Non-Certified DFR-
Diesel, except as provided in paragraph (c)(3) of this section. It must
further designate all Certified DFR-Diesel as provided in Sec. 80.523,
and designate whether the diesel fuel is dyed or undyed, for heating
oil whether it is marked under Sec. 80.510(c)(1) and for locomotive or
marine fuel, whether it is marked under Sec. 80.510(c)(2). It must
further designate any credits earned as either nonroad diesel credits
or motor vehicle diesel credits.
(1) In the case of Certified DFR-Diesel, the foreign refiner must
meet all requirements that apply to refiners under this subpart I,
except that:
(i) For purposes of complying with the compliance option
requirements of Sec. 80.530, motor vehicle diesel fuel produced by a
foreign refinery must comply separately for each Credit Trading Area of
import, as defined in Sec. 80.531(a)(5).
(ii) For purposes of complying with the compliance option
requirements of Sec. 80.530, credits obtained from any other refinery
or from any importer must have been generated in the same Credit
Trading Area as the Credit Trading Area of import of the fuel for which
credits are needed to achieve compliance.
(iii) For purposes of generating credits under Sec. 80.531,
credits shall be generated separately by Credit Trading Area of import
and shall be designated by Credit Trading Area of importation and by
port of importation.
(2) In the case of Non-Certified DFR-Diesel, the foreign refiner
shall meet all the following requirements:
(i) The designation requirements in this section.
(ii) The reporting requirements in this section and Sec. Sec.
80.593, 80.598 and 80.599.
(iii) The product transfer document requirements in this section
and Sec. Sec. 80.590 and 80.591.
(iv) The prohibitions in this section and Sec. 80.610.
(3)(i) Any foreign refiner that has been approved to produce diesel
fuel subject to the diesel foreign refiner program for a foreign
refinery under subpart I may elect to classify no diesel fuel imported
into the United States as DFR-Diesel provided the foreign refiner
notifies EPA of the election no later than November 1 of the prior
calendar year.
(ii) An election under paragraph (c)(3)(i) of this section shall be
for an entire calendar year and apply to all diesel fuel that is
produced by the foreign refinery that is imported into the United
States, and shall remain in effect for each succeeding year unless and
until the foreign refiner notifies EPA of the termination of the
election. The change in election shall take effect at the beginning of
the next calendar year.
(d) Designation, product transfer documents, and foreign refiner
certification. (1) Any foreign refiner of a foreign refinery that has
been approved by EPA to produce diesel fuel subject to the diesel
foreign refiner program must designate each batch of DFR-Diesel as such
at the time the diesel fuel is produced, unless the refiner has elected
to classify no diesel fuel exported to the United States as DFR-Diesel
under paragraph (c)(3) of this section.
(2) On each occasion when any person transfers custody or title to
any DFR-Diesel prior to its being imported into the United States, it
must include
[[Page 28552]]
the following information as part of the product transfer document
information in this section:
(i) Designation of the diesel fuel as Certified DFR-Diesel or as
Non-Certified DFR-Diesel, and if it is Certified DFR-Diesel, further
designate the fuel pursuant to Sec. 80.523, and whether the diesel
fuel is dyed or undyed, for heating oil whether it is marked under
Sec. 80.510(c)(1) and for locomotive or marine fuel, whether it is
marked under Sec. 80.510(c)(2), and all other applicable product
transfer document information required under Sec. 80.590; and
(ii) The name and EPA refinery registration number (under Sec.
80.593) of the refinery where the DFR-Diesel was produced.
(3) On each occasion when DFR-Diesel is loaded onto a vessel or
other transportation mode for transport to the United States, the
foreign refiner shall prepare a certification for each batch of the
DFR-Diesel that meets the following requirements.
(i) The certification shall include the report of the independent
third party under paragraph (f) of this section, and the following
additional information:
(A) The name and EPA registration number of the refinery that
produced the DFR-Diesel;
(B) The identification of the diesel fuel as Certified DFR-Diesel
or Non-Certified DFR-Diesel;
(C) The volume of DFR-Diesel being transported, in gallons;
(D) In the case of Certified DFR-Diesel:
(1) The sulfur content as determined under paragraph (f) of this
section, and the applicable designations stated in paragraph (d)(2)(i)
of this section; and
(2) A declaration that the DFR-Diesel is being included in the
applicable compliance calculations required by the EPA under subpart I.
(ii) The certification shall be made part of the product transfer
documents for the DFR-Diesel.
(e) Transfers of DFR-Diesel to non-United States markets. The
foreign refiner is responsible to ensure that all diesel fuel
classified as DFR-Diesel is imported into the United States. A foreign
refiner may remove the DFR-Diesel classification, and the diesel fuel
need not be imported into the United States, but only if:
(1)(i) The foreign refiner excludes:
(A) The volume of diesel from the refinery's compliance report
under Sec. Sec. 80.593 or 80.599; and
(B) In the case of Certified DFR-Diesel, the volume of the diesel
fuel from the compliance report under Sec. 80.593 or Sec. 80.599.
(ii) The exclusions under paragraph (e)(1)(i) of this section shall
be on the basis of the designations under Sec. 80.523 and this section
and volumes determined under paragraph (f) of this section; and
(2) The foreign refiner obtains sufficient evidence in the form of
documentation that the diesel fuel was not imported into the United
States.
(f) Load port independent sampling, testing and refinery
identification. (1) On each occasion that DFR-Diesel is loaded onto a
vessel for transport to the United States a foreign refiner shall have
an independent third party:
(i) Inspect the vessel prior to loading and determine the volume of
any tank bottoms;
(ii) Determine the volume of DFR-Diesel loaded onto the vessel
(exclusive of any tank bottoms before loading);
(iii) Obtain the EPA-assigned registration number of the foreign
refinery;
(iv) Determine the name and country of registration of the vessel
used to transport the DFR-Diesel to the United States; and
(v) Determine the date and time the vessel departs the port serving
the foreign refinery.
(2) On each occasion that Certified DFR-Diesel is loaded onto a
vessel for transport to the United States a foreign refiner shall have
an independent third party:
(i) Collect a representative sample of the Certified DFR-Diesel
from each vessel compartment subsequent to loading on the vessel and
prior to departure of the vessel from the port serving the foreign
refinery;
(ii) Determine the sulfur content value for each compartment, and
if applicable, the marker content under Sec. 80.510(c) using an
approved methodology as specified in Sec. 80.580 and Sec. 80.582 by:
(A) The third party analyzing each sample; or
(B) The third party observing the foreign refiner analyze the
sample;
(iii) Review original documents that reflect movement and storage
of the certified DFR-Diesel from the refinery to the load port, and
from this review determine:
(A) The refinery at which the DFR-Diesel was produced; and
(B) That the DFR-Diesel remained segregated from:
(1) Non-DFR-Diesel and Non-Certified DFR-Diesel; and
(2) Other Certified DFR-Diesel produced at a different refinery;
(3) The independent third party shall submit a report:
(i) To the foreign refiner containing the information required
under paragraphs (f)(1) and (f)(2) of this section, to accompany the
product transfer documents for the vessel; and
(ii) To the Administrator containing the information required under
paragraphs (f)(1) and (f)(2) of this section, within thirty days
following the date of the independent third party's inspection. This
report shall include a description of the method used to determine the
identity of the refinery at which the diesel fuel was produced,
assurance that the diesel fuel remained segregated as specified in
paragraph (n)(1) of this section, and a description of the diesel
fuel's movement and storage between production at the source refinery
and vessel loading.
(4) The independent third party must:
(i) Be approved in advance by EPA, based on a demonstration of
ability to perform the procedures required in this paragraph (f);
(ii) Be independent under the criteria specified in Sec.
80.65(e)(2)(iii); and
(iii) Sign a commitment that contains the provisions specified in
paragraph (i) of this section with regard to activities, facilities and
documents relevant to compliance with the requirements of this
paragraph (f).
(g) Comparison of load port and port of entry testing. (1)(i) Any
foreign refiner and any United States importer of Certified DFR-Diesel
shall compare the results from the load port testing under paragraph
(f) of this section, with the port of entry testing as reported under
paragraph (o) of this section, for the volume of diesel fuel and the
sulfur content value; except that;
(ii) Where a vessel transporting Certified DFR-Diesel off loads
this diesel fuel at more than one United States port of entry, and the
conditions of paragraph (g)(2)(i) of this section are met at the first
United States port of entry, the requirements of paragraph (g)(2) of
this section do not apply at subsequent ports of entry if the United
States importer obtains a certification from the vessel owner that
meets the requirements of paragraph (s) of this section, that the
vessel has not loaded any diesel fuel or blendstock between the first
United States port of entry and the subsequent port of entry.
(2)(i) The requirements of this paragraph (g)(2) apply if:
(A) The temperature-corrected volumes determined at the port of
entry and at the load port differ by more than one percent; or
(B) The sulfur content value determined at the port of entry is
higher than the sulfur content value determined at the load port, and
the amount of this difference is greater than the reproducibility
amount specified for the port of entry test result by the American
Society of Testing and Materials (ASTM) for a test method used
[[Page 28553]]
for testing the port of entry sample under the provisions Sec. 80.580.
(ii) The United States importer and the foreign refiner shall treat
the diesel fuel as Non-Certified DFR-Diesel, and the foreign refiner
shall exclude the diesel fuel volume from its diesel fuel volumes
calculations and sulfur standard designations under Sec. 80.523.
(h) Attest requirements. Refiners, for each calendar year, must
arrange to have an attest engagement performed of the underlying
documentation that forms the basis of any report required under this
subpart I. The attest engagement must comply with the procedures and
requirements that apply to refiners under Sec. Sec. 80.125 through
80.130 and must be submitted to the Administrator of EPA by May 30 of
each year for the prior calendar year. The following additional
procedures shall be carried out for any foreign refiner of DFR-Diesel.
(1) The inventory reconciliation analysis under Sec. 80.128(b) and
the tender analysis under Sec. 80.128(c) shall include Non-DFR-Diesel.
(2) Obtain separate listings of all tenders of Certified DFR-Diesel
and of Non-Certified DFR-Diesel, and obtain separate listings of
Certified DFR-Diesel based on whether it is 15 ppm sulfur content
diesel fuel, 500 ppm sulfur content diesel fuel or high sulfur fuel
having a sulfur content greater than 500 ppm (and if so, whether the
fuel is marked heating oil or small refiner diesel fuel or diesel fuel
produced through the use of credits). Agree the total volume of tenders
from the listings to the diesel fuel inventory reconciliation analysis
in Sec. 80.128(b), and to the volumes determined by the third party
under paragraph (f)(1) of this section.
(3) For each tender under paragraph (h)(2) of this section, where
the diesel fuel is loaded onto a marine vessel, report as a finding the
name and country of registration of each vessel, and the volumes of
DFR-Diesel loaded onto each vessel.
(4) Select a sample from the list of vessels identified in
paragraph (h)(3) of this section used to transport Certified DFR-
Diesel, in accordance with the guidelines in Sec. 80.127, and for each
vessel selected perform the following:
(i) Obtain the report of the independent third party, under
paragraph (f) of this section, and of the United States importer under
paragraph (o) of this section.
(A) Agree the information in these reports with regard to vessel
identification, diesel fuel volumes and sulfur content test results.
(B) Identify, and report as a finding, each occasion the load port
and port of entry sulfur content and volume results differ by more than
the amounts allowed in paragraph (g) of this section, and determine
whether the foreign refiner adjusted its refinery calculations as
required in paragraph (g) of this section.
(ii) Obtain the documents used by the independent third party to
determine transportation and storage of the Certified DFR-Diesel from
the refinery to the load port, under paragraph (f) of this section.
Obtain tank activity records for any storage tank where the Certified
DFR-Diesel is stored, and pipeline activity records for any pipeline
used to transport the Certified DFR-Diesel, prior to being loaded onto
the vessel. Use these records to determine whether the Certified DFR-
Diesel was produced at the refinery that is the subject of the attest
engagement, and whether the Certified DFR-Diesel was mixed with any
Non-Certified DFR-Diesel, Non-DFR-Diesel, or any Certified DFR-Diesel
produced at a different refinery.
(5)(i) Select a sample from the list of vessels identified in
paragraph (h)(3) of this section used to transport certified and Non-
Certified DFR-Diesel, in accordance with the guidelines in Sec.
80.127, and for each vessel selected perform the following:
(ii) Obtain a commercial document of general circulation that lists
vessel arrivals and departures, and that includes the port and date of
departure of the vessel, and the port of entry and date of arrival of
the vessel. Agree the vessel's departure and arrival locations and
dates from the independent third party and United States importer
reports to the information contained in the commercial document.
(6) Obtain separate listings of all tenders of Non-DFR-Diesel, and
perform the following:
(i) Agree the total volume and sulfur content of tenders from the
listings to the diesel fuel inventory reconciliation analysis in Sec.
80.128(b).
(ii) Obtain a separate listing of the tenders under paragraph
(h)(6) of this section where the diesel fuel is loaded onto a marine
vessel. Select a sample from this listing in accordance with the
guidelines in Sec. 80.127, and obtain a commercial document of general
circulation that lists vessel arrivals and departures, and that
includes the port and date of departure and the ports and dates where
the diesel fuel was off loaded for the selected vessels. Determine and
report as a finding the country where the diesel fuel was off loaded
for each vessel selected.
(7) In order to complete the requirements of this paragraph (h) an
auditor shall:
(i) Be independent of the foreign refiner;
(ii) Be licensed as a certified public accountant in the United
States and a citizen of the United States, or be approved in advance by
EPA based on a demonstration of ability to perform the procedures
required in Sec. Sec. 80.125 through 80.130 and this paragraph (h);
and
(iii) Sign a commitment that contains the provisions specified in
paragraph (i) of this section with regard to activities and documents
relevant to compliance with the requirements of Sec. Sec. 80.125
through 80.130 and this paragraph (h).
(i) Foreign refiner commitments. Any foreign refiner shall commit
to and comply with the provisions contained in this paragraph (i) as a
condition to being approved for a temporary refiner diesel fuel program
option.
(1) Any United States Environmental Protection Agency inspector or
auditor must be given full, complete and immediate access to conduct
inspections and audits of the foreign refinery.
(i) Inspections and audits may be either announced in advance by
EPA, or unannounced.
(ii) Access will be provided to any location where:
(A) Diesel fuel is produced;
(B) Documents related to refinery operations are kept;
(C) Diesel fuel or blendstock samples are tested or stored; and
(D) DFR-Diesel is stored or transported between the foreign
refinery and the United States, including storage tanks, vessels and
pipelines.
(iii) Inspections and audits may be by EPA employees or contractors
to EPA.
(iv) Any documents requested that are related to matters covered by
inspections and audits must be provided to an EPA inspector or auditor
on request.
(v) Inspections and audits by EPA may include review and copying of
any documents related to:
(A) Refinery baseline establishment, if applicable, including the
volume, sulfur content and dye status of diesel fuel, heating oil and
other distillates; transfers of title or custody of any diesel fuel,
heating oil or blendstocks whether DFR-Diesel or Non-DFR-Diesel,
produced at the foreign refinery during the period January 1, 1998
through the date of the refinery baseline petition or through the date
of the inspection or audit if a baseline petition has not been
approved, and any work papers related to refinery baseline
establishment;
[[Page 28554]]
(B) The volume and sulfur content of DFR-Diesel;
(C) The proper classification of diesel fuel as being DFR-Diesel or
as not being DFR-Diesel, or as Certified DFR-Diesel or as Non-Certified
DFR-Diesel, and all other relevant designations under subpart I,
including Sec. 80.523 and this section;
(D) Transfers of title or custody to DFR-Diesel;
(E) Sampling and testing of DFR-Diesel;
(F) Work performed and reports prepared by independent third
parties and by independent auditors under the requirements of this
section, including work papers; and
(G) Reports prepared for submission to EPA, and any work papers
related to such reports.
(vi) Inspections and audits by EPA may include taking samples of
diesel fuel, heating oil, diesel fuel additives or blendstock, dyes and
chemical markers and interviewing employees.
(vii) Any employee of the foreign refiner must be made available
for interview by the EPA inspector or auditor, on request, within a
reasonable time period.
(viii) English language translations of any documents must be
provided to an EPA inspector or auditor, on request, within 10 working
days.
(ix) English language interpreters must be provided to accompany
EPA inspectors and auditors, on request.
(2) An agent for service of process located in the District of
Columbia shall be named, and service on this agent constitutes service
on the foreign refiner or any employee of the foreign refiner for any
action by EPA or otherwise by the United States related to the
requirements of this subpart.
(3) The forum for any civil or criminal enforcement action related
to the provisions of this section for violations of the Clean Air Act
or regulations promulgated thereunder shall be governed by the Clean
Air Act, including the EPA administrative forum where allowed under the
Clean Air Act.
(4) United States substantive and procedural laws shall apply to
any civil or criminal enforcement action against the foreign refiner or
any employee of the foreign refiner related to the provisions of this
section.
(5) Submitting a petition for participation in the diesel foreign
refiner program or producing and exporting diesel fuel or heating oil
under any such program, and all other actions to comply with the
requirements of this subpart relating to participation in any diesel
foreign refiner program, or to establish an individual refinery motor
vehicle diesel fuel volume baseline of non-highway baseline (if
applicable) constitute actions or activities that satisfy the
provisions of 28 U.S.C. 1605(a)(2), but solely with respect to actions
instituted against the foreign refiner, its agents and employees in any
court or other tribunal in the United States for conduct that violates
the requirements applicable to the foreign refiner under this subpart,
including conduct that violates 18 U.S.C. 1001 and section 113(c)(2) of
the Clean Air Act.
(6) The foreign refiner, or its agents or employees, will not seek
to detain or to impose civil or criminal remedies against EPA
inspectors or auditors, whether EPA employees or EPA contractors, for
actions performed within the scope of EPA employment related to the
provisions of this section.
(7) The commitment required by this paragraph (i) shall be signed
by the owner or president of the foreign refiner business.
(8) In any case where DFR-Diesel produced at a foreign refinery is
stored or transported by another company between the refinery and the
vessel that transports the DFR-Diesel to the United States, the foreign
refiner shall obtain from each such other company a commitment that
meets the requirements specified in paragraphs (i)(1) through (7) of
this section, and these commitments shall be included in the foreign
refiner's petition to participate in any diesel foreign refiner
program.
(j) Sovereign immunity. By submitting a petition for participation
in any diesel foreign refiner program under subpart I of this part (and
baseline, if applicable) under this section, or by producing and
exporting diesel fuel to the United States under any such program, the
foreign refiner, and its agents and employees, without exception,
become subject to the full operation of the administrative and judicial
enforcement powers and provisions of the United States without
limitation based on sovereign immunity, with respect to actions
instituted against the foreign refiner, its agents and employees in any
court or other tribunal in the United States for conduct that violates
the requirements applicable to the foreign refiner under subpart I of
this part including conduct that violates 18 U.S.C. 1001 and section
113(c)(2) of the Clean Air Act.
(k) Bond posting. Any foreign refiner shall meet the requirements
of this paragraph (k) as a condition to approval for any diesel foreign
refiner program under subpart I of this part.
(1) The foreign refiner shall post a bond of the amount calculated
using the following equation:
Bond = G x $0.01
Where:
Bond = amount of the bond in U. S. dollars
G = the volume baseline for motor vehicle diesel fuel produced at the
foreign refinery and exported to the United States, in gallons, and, if
applicable, the volume Vnrlm, as defined in Sec. 80.534.
(2) Bonds shall be posted by:
(i) Paying the amount of the bond to the Treasurer of the United
States;
(ii) Obtaining a bond in the proper amount from a third-party
surety agent that is payable to satisfy United States administrative or
judicial judgments against the foreign refiner, provided EPA agrees in
advance as to the third party and the nature of the surety agreement;
or
(iii) An alternative commitment that results in assets of an
appropriate liquidity and value being readily available to the United
States, provided EPA agrees in advance as to the alternative
commitment.
(3) Bonds posted under this paragraph (k) shall:
(i) Be used to satisfy any judicial judgment that results from an
administrative or judicial enforcement action for conduct in violation
of this subpart, including where such conduct violates 18 U.S.C. 1001
and section 113(c)(2) of the Clean Air Act,
(ii) Be provided by a corporate surety that is listed in the United
States Department of Treasury Circular 570 ``Companies Holding
Certificates of Authority as Acceptable Sureties on Federal Bonds'',
and
(iii) Include a commitment that the bond will remain in effect for
at least five (5) years following the end of latest annual reporting
period that the foreign refiner produces diesel fuel pursuant to the
requirements of this Subpart I.
(4) On any occasion a foreign refiner bond is used to satisfy any
judgment, the foreign refiner shall increase the bond to cover the
amount used within 90 days of the date the bond is used.
(5) If the bond amount for a foreign refiner increases, the foreign
refiner shall increase the bond to cover the shortfall within 90 days
of the date the bond amount changes. If the bond amount decreases, the
foreign refiner may reduce the amount of the bond beginning 90 days
after the date the bond amount changes.
(l) [Reserved]
(m) English language reports. Any report or other document
submitted to
[[Page 28555]]
EPA by a foreign refiner shall be in English language, or shall include
an English language translation.
(n) Prohibitions. (1) No person may combine Certified DFR-Diesel
with any Non-Certified DFR-Diesel or Non-DFR-Diesel, and no person may
combine Certified DFR-Diesel with any Certified DFR-Diesel produced at
a different refinery, until the importer has met all the requirements
of paragraph (o) of this section, except as provided in paragraph (e)
of this section. No person may violate the product segregation
requirements of Sec. 80.511.
(2) No foreign refiner or other person may cause another person to
commit an action prohibited in paragraph (n)(1) of this section, or
that otherwise violates the requirements of this section.
(o) United States importer requirements. Any United States importer
shall meet the following requirements.
(1) Each batch of imported diesel fuel and heating oil shall be
classified by the importer as being DFR-Diesel or as Non-DFR-Diesel,
and each batch classified as DFR-Diesel shall be further classified as
Certified DFR-Diesel or as Non-Certified DFR-Diesel, and each batch of
Certified DFR-Diesel shall be further designated pursuant to the
designation requirements of Sec. 80.523 and this section.
(2) Diesel fuel shall be classified as Certified DFR-Diesel or as
Non-Certified DFR-Diesel according to the designation by the foreign
refiner if this designation is supported by product transfer documents
prepared by the foreign refiner as required in paragraph (d) of this
section, unless the diesel fuel is classified as Non-Certified DFR-
Diesel under paragraph (g) of this section. Additionally, the importer
shall comply with all requirements of subpart I applicable to
importers.
(3) For each diesel fuel batch classified as DFR-Diesel, any United
States importer shall perform the following procedures.
(i) In the case of both Certified and Non-Certified DFR-Diesel,
have an independent third party:
(A) Determine the volume of diesel fuel in the vessel;
(B) Use the foreign refiner's DFR-Diesel certification to determine
the name and EPA-assigned registration number of the foreign refinery
that produced the DFR-Diesel;
(C) Determine the name and country of registration of the vessel
used to transport the DFR-Diesel to the United States; and
(D) Determine the date and time the vessel arrives at the United
States port of entry.
(ii) In the case of Certified DFR-Diesel, have an independent third
party:
(A) Collect a representative sample from each vessel compartment
subsequent to the vessel's arrival at the United States port of entry
and prior to off loading any diesel fuel from the vessel;
(B) Obtain the compartment samples; and
(C) Determine the sulfur content value, and if applicable, the
marker content, of each compartment sample using an appropriate
methodology as specified in Sec. Sec. 80.580 or 80.582, by:
(1) The third party analyzing the sample; or
(2) The third party observing the importer analyze the sample;
(4) Any importer shall submit reports within 30 days following the
date any vessel transporting DFR-Diesel arrives at the United States
port of entry:
(i) To the Administrator containing the information determined
under paragraph (o)(3) of this section; and
(ii) To the foreign refiner containing the information determined
under paragraph (o)(3)(ii) of this section, and including
identification of the port and Credit Trading Area at which the product
was offloaded.
(5)(i) Any United States importer shall meet the requirements
specified in Sec. Sec. 80.510 and 80.520 and all other requirements of
subpart I, for any imported diesel fuel or heating oil that is not
classified as Certified DFR-Diesel under paragraph (o)(2) of this
section.
(ii) [Reserved]
(p) Truck Imports of Certified DFR-Diesel produced at a Foreign
Refinery. (1) Any refiner whose Certified DFR-Diesel is transported
into the United States by truck may petition EPA to use alternative
procedures to meet the following requirements:
(i) Certification under paragraph (d)(5) of this section;
(ii) Load port and port of entry sampling and testing under
paragraphs (f) and (g) of this section;
(iii) Attest under paragraph (h) of this section; and
(iv) Importer testing under paragraph (o)(3) of this section.
(2) These alternative procedures must ensure Certified DFR-Diesel
remains segregated from Non-Certified DFR-Diesel and from Non-DFR-
Diesel until it is imported into the United States. The petition will
be evaluated based on whether it adequately addresses the following:
(i) Provisions for monitoring pipeline shipments, if applicable,
from the refinery, that ensure segregation of Certified DFR-Diesel from
that refinery from all other diesel fuel;
(ii) Contracts with any terminals and/or pipelines that receive
and/or transport Certified DFR-Diesel, that prohibit the commingling of
Certified DFR-Diesel with any of the following:
(A) Other Certified DFR-Diesel from other refineries.
(B) All Non-Certified DFR-Diesel.
(C) All Non-DFR-Diesel.
(D) All diesel fuel or heating oil products required to be
segregated under subpart I.
(iii) Procedures for obtaining and reviewing truck loading records
and United States import documents for Certified DFR-Diesel to ensure
that such diesel fuel is only loaded into trucks making deliveries to
the United States;
(iv) Attest procedures to be conducted annually by an independent
third party that review loading records and import documents based on
volume reconciliation, or other criteria, to confirm that all Certified
DFR-Diesel remains segregated throughout the distribution system and is
only loaded into trucks for import into the United States.
(3) The petition required by this section must be submitted to EPA
along with the application for temporary refiner relief individual
refinery diesel sulfur standard under this subpart I and this section.
(q) Withdrawal or suspension of a foreign refinery's temporary
refinery flexibility program approval. EPA may withdraw or suspend a
diesel refiner baseline or standard approval for a foreign refinery
where:
(1) A foreign refiner fails to meet any requirement of this
section,
(2) A foreign government fails to allow EPA inspections as provided
in paragraph (i)(1) of this section;
(3) A foreign refiner asserts a claim of, or a right to claim,
sovereign immunity in an action to enforce the requirements in this
subpart; or
(4) A foreign refiner fails to pay a civil or criminal penalty that
is not satisfied using the foreign refiner bond specified in paragraph
(k) of this section.
(r) Early use of a foreign refiner motor vehicle diesel fuel
baseline. (1) A foreign refiner may begin using an individual refinery
motor vehicle diesel fuel baseline before EPA has approved the
baseline, provided that:
(i) A baseline petition has been submitted as required in paragraph
(b) of this section;
(ii) EPA has made a provisional finding that the baseline petition
is complete;
(iii) The foreign refiner has made the commitments required in
paragraph (i) of this section;
(iv) The persons who will meet the independent third party and
[[Page 28556]]
independent attest requirements for the foreign refinery have made the
commitments required in paragraphs (f)(3)(iii) and (h)(7)(iii) of this
section; and
(v) The foreign refiner has met the bond requirements of paragraph
(k) of this section.
(2) In any case where a foreign refiner uses an individual refinery
baseline before final approval under paragraph (r)(1) of this section,
and the foreign refinery baseline values that ultimately are approved
by EPA are more stringent than the early baseline values used by the
foreign refiner, the foreign refiner shall recalculate its compliance,
ab initio, using the baseline values approved by the EPA, and the
foreign refiner shall be liable for any resulting violation of the
motor vehicle highway diesel fuel requirements.
(s) Additional requirements for petitions, reports and
certificates. Any petition for approval to produce diesel fuel subject
to the diesel foreign refiner program, any alternative procedures under
paragraph (p) of this section, any report or other submission required
by paragraphs (c), (f)(2), or (i) of this section, and any
certification under paragraph (d)(3) of this section shall be:
(1) Submitted in accordance with procedures specified by the
Administrator, including use of any forms that may specified by the
Administrator.
(2) Be signed by the president or owner of the foreign refiner
company, or by that person's immediate designee, and shall contain the
following declaration:
``I hereby certify: (1) That I have actual authority to sign on
behalf of and to bind [insert name of foreign refiner]
with regard to
all statements contained herein; (2) that I am aware that the
information contained herein is being certified, or submitted to the
United States Environmental Protection Agency, under the requirements
of 40 CFR part 80, subpart I, and that the information is material for
determining compliance under these regulations; and (3) that I have
read and understand the information being certified or submitted, and
this information is true, complete and correct to the best of my
knowledge and belief after I have taken reasonable and appropriate
steps to verify the accuracy thereof.
``I affirm that I have read and understand the provisions of 40 CFR
part 80, subpart I, including 40 CFR 80.620 apply to [insert name of
foreign refiner]. Pursuant to Clean Air Act section 113(c) and Title
18, U.S.C. 1001, the penalty for furnishing false, incomplete or
misleading information in this certification or submission is a fine of
up to $10,000 U.S., and/or imprisonment for up to five years.''.
PART 89--CONTROL OF EMISSIONS FROM NEW AND IN-USE NONROAD
COMPRESSION-IGNITION ENGINES
60. The authority citation for part 89 continues to read as
follows:
Authority: 42 U.S.C. 7521, 7522, 7523, 7524, 7525, 7541, 7542,
7543, 7545, 7547, 7549, 7550, and 7601(a).
61. Section 89.2 is amended by revising the definition of ``United
States'' to read as follows:
Sec. 89.2 Definitions.
* * * * *
United States means the States, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana
Islands, Guam, American Samoa, and the U.S. Virgin Islands.
* * * * *
62. Section 89.112 is amended by revising the introductory text of
paragraph (f)(1) to read as follows:
Sec. 89.112 Oxides of nitrogen, carbon monoxide, hydrocarbon, and
particulate matter exhaust emission standards.
* * * * *
(f) * * *
(1) Voluntary standards. Engines may be designated ``Blue Sky
Series'' engines by meeting the voluntary standards listed in Table 3,
which apply to all certification and in-use testing, as follows:
* * * * *
63. Section 89.330 is amended by adding paragraph (e) to read as
follows:
Sec. 89.330 Lubricating oil and test fuels.
(e) Low sulfur test fuel. Upon request, for model years 2006 and/or
2007, the diesel test fuel shall be the diesel test fuel specified in
40 CFR 1065.205, with the following exception: The sulfur content must
be 300-500 ppm instead of 7-15 ppm, subject to the provisions of this
paragraph (e).
(1) To use this option, the manufacturer must:
(i) Ensure that ultimate purchasers of equipment using these
engines are informed that the use of fuel meeting the 500 ppm
specification is recommended.
(ii) Provide to equipment manufacturers labels to be applied at the
fuel inlet recommending 500 ppm fuel.
(2) None of the engines in the engine family may employ sulfur-
sensitive technologies.
(3) For engines at or above 130 kW, this option may be used in 2006
and 2007. For engines at or above 75 kW but less than 130 kW, this
option may only be used in 2007.
64. A new part 1039 is added to subchapter U of chapter I, to read
as follows:
SUBCHAPTER U--AIR POLLUTION CONTROLS
PART 1039--CONTROL OF EMISSIONS FROM NEW AND IN-USE NONROAD
COMPRESSION-IGNITION ENGINES
Subpart A--Overview and Applicability
Sec.
1039.1 Does this part apply for my engines?
1039.5 Which engines are excluded from this part's requirements?
1039.10 How is this part organized?
1039.15 Do any other regulation parts apply to me?
Subpart B--Emission Standards and Related Requirements
1039.101 What exhaust emission standards must my engines meet?
1039.102 What exhaust emission standards must my engines meet before
model year 2014?
1039.104 Are there interim provisions that apply only for a limited
time?
1039.105 What smoke standards must my engines meet?
1039.107 What evaporative emissions standards and requirements
apply?
1039.110 [Reserved]
1039.115 What other requirements must my engines meet?
1039.120 What emission-related warranty requirements apply to me?
1039.125 What maintenance instructions must I give to buyers?
1039.130 What installation instructions must I give to equipment
manufacturers?
1039.135 How must I label and identify the engines I produce?
Subpart C--Certifying Engine Families
1039.201 What are the general requirements for obtaining a
certificate of conformity?
1039.205 What must I include in my application?
1039.210 May I get preliminary approval before I complete my
application?
1039.220 How do I amend the maintenance instructions in my
application?
1039.235 What emission testing must I perform for my application for
a certificate of conformity?
1039.240 How do I demonstrate that my engine family complies with
exhaust emission standards?
1039.245 How do I determine deterioration factors from exhaust
durability testing?
1039.250 What records must I keep and what reports must I send to
EPA?
1039.255 What decisions may EPA make regarding my certificate of
conformity?
Subpart D--[Reserved]
Subpart E--In-use Testing
1039.401 General provisions.
[[Page 28557]]
Subpart F--Test Procedures
1039.501 How do I run a valid emission test?
1039.505 Which duty cycles do I use for steady-state testing?
1039.510 Which duty cycles do I use for transient testing?
1039.515 What are the test procedures related to not-to-exceed
standards?
1039.520 What testing must I perform to establish deterioration
factors?
1039.525 How do I adjust emission levels to account for infrequently
regenerating aftertreatment devices?
Subpart G--Special Compliance Provisions
1039.601 What compliance provisions apply to these engines?
1039.605 What provisions apply to engines already certified under
the motor-vehicle program?
1039.610 What provisions apply to vehicles already certified under
the motor-vehicle program?
1039.615 What special provisions apply to engines using
noncommercial fuels?
1039.620 What are the provisions for exempting engines used solely
for competition?
1039.625 What requirements apply under the program for equipment-
manufacturer flexibility?
1039.626 What special provisions apply to engines imported under the
equipment-manufacturer flexibility program?
1039.630 What are the hardship provisions for equipment
manufacturers?
1039.635 What are the hardship provisions for engine manufacturers?
1039.639 What special provisions apply to engines sold in Guam,
American Samoa, or the Commonwealth of the Northern Mariana Islands?
1039.645 What special provisions apply to engines used for
transportation refrigeration units?
Subpart H--Averaging, Banking, and Trading for Certification
1039.701 General provisions.
1039.705 How do I generate and calculate emission credits?
1039.710 How do I average?
1039.715 How do I bank emission credits?
1039.720 How do I trade emissions credits?
1039.725 What records must I keep?
1039.730 What must I include in my application for certification?
1039.732 What reports must I submit after the end of the model year?
1039.735 What restrictions apply for using credits?
1039.740 What can happen if I do not comply with the provisions of
this subpart?
Subpart I--Definitions and Other Reference Information
1039.801 What definitions apply to this part?
1039.805 What symbols, acronyms, and abbreviations does this part
use?
1039.810 What materials does this part reference?
1039.815 How should I request EPA to keep my information
confidential?
1039.820 How do I request a hearing?
Appendix I to Part 1039--Nonroad Compression-ignition (CI) Steady-
state Cycle for Constant-Speed Engines
Appendix II to Part 1039--[Reserved]
Appendix III to Part 1039--Nonroad Compression-ignition (CI) Steady-
state Cycle for Variable-Speed Engines with Maximum Power below 19
kW
Appendix IV to Part 1039--Nonroad Compression-ignition (CI) Steady-
state Cycle for Variable-Speed Engines with Maximum Power at or
above 19 kW
Appendix V to Part 1039--Nonroad Compression-ignition (CI) Transient
Cycle for Constant-Speed Engines
Authority: 42 U.S.C. 7401-7671(q).
Subpart A--Overview and Applicability
Sec. 1039.1 Does this part apply for my engines?
(a) The regulations in this part 1039 apply for all new,
compression-ignition nonroad engines (defined in Sec. 1039.801),
except as provided in Sec. 1039.5.
(b) In certain cases, the regulations in this part 1039 apply to
engines with maximum brake power at or above 250 kW that would
otherwise be covered by 40 CFR part 1048. See 40 CFR 1048.620 for
provisions related to this allowance.
(c) The definition of nonroad engine in 40 CFR 1068.30 excludes
certain engines used in stationary applications. These engines are not
required to comply with this part, but 40 CFR 1068.101 restricts the
use of stationary engines for non-stationary purposes and 40 CFR
1068.320 requires that you label imported engines that will be used in
stationary applications.
(d)(1) This part 1039 applies for all engines subject to the
emissions standards specified in subpart B of this part. See 40 CFR
part 89 for earlier model years.
(2) For the other compression-ignition engines that do not become
subject to the standards specified in subpart B of this part, this part
applies as follows:
(i) The provisions of Sec. 1039.1(c) and Sec. 1039.801 apply for
stationary engines beginning January 1, 2006.
(ii) The provisions of Sec. 1039.620 and Sec. 1039.801 apply for
engines used solely for competition beginning January 1, 2006.
Sec. 1039.5 Which engines are excluded from this part's requirements?
(a) This part does not apply to the following nonroad engines:
(1) Locomotive engines. Locomotive engines subject to the standards
of 40 CFR part 92 are not subject to the provisions of this part 1039.
Locomotive engines that are not subject to the standards of 40 CFR part
92 because they have been exempted by provisions of 40 CFR part 92,
other than those contained in 40 CFR 92.907, are also not subject to
the provisions of this part 1039. See the provisions of 40 CFR part 92
to determine which engines are subject to the standards of that part
92.
(2) Marine engines. Marine engines subject to the standards of 40
CFR part 94 are not subject to the provisions of this part 1039. Marine
engines that are not subject to the standards of 40 CFR part 94 because
they have been exempted by provisions of 40 CFR part 94, other than
those contained in 40 CFR 94.907, are also not subject to the
provisions of this part 1039. See the provisions of 40 CFR part 94 to
determine which engines are subject to the standards of that part 94.
(3) Mining engines. Engines used in underground mining or in
underground mining equipment and regulated by the Mining Safety and
Health Administration (MSHA) in 30 CFR parts 7, 31, 32, 36, 56, 57, 70,
and 75 are not subject to the provisions of this part 1039.
(4) Hobby engines. Engines with per-cylinder displacement of less
than 50 cc are not subject to the provisions of this part 1039.
(b) Aircraft engines are not subject to the provisions of this part
1039. See 40 CFR part 87 for engines used in aircraft.
Sec. 1039.10 How is this part organized?
The regulations in this part 1039 contain provisions that affect
both engine manufacturers and others. However, the requirements of this
part are generally addressed to the engine manufacturer. Unless we
specifically state otherwise, the term ``you'' means the engine
manufacturer, as defined in Sec. 89.801. This part 1039 is divided
into the following subparts:
(a) Subpart B of this part describes the emission standards and
other requirements that must be met to certify engines under this part.
Note that Sec. 1039.104 discusses certain interim requirements and
compliance provisions that apply only for a limited time.
(b) Subpart C of this part describes how to apply for a certificate
of conformity.
(c) Subpart F of this part describes how to test your engines
(including references to other parts of the Code of Federal
Regulations).
(d) Subpart G of this part and 40 CFR part 1068 describe
requirements, prohibitions, and other provisions that apply to engine
manufacturers, equipment manufacturers, owners, operators, rebuilders,
and all others.
(e) Subpart H of this part describes how engine manufacturers may
generate
[[Page 28558]]
and use emission credits to certify their engines.
Sec. 1039.15 Do any other regulation parts apply to me?
(a) Part 1065 of this chapter describes procedures and equipment
specifications for testing engines. Subpart F of this part describes
how to apply the provisions of part 1065 of this chapter to show your
engines meet the emission standards in this part.
(b) The requirements and prohibitions of part 1068 of this chapter
apply to everyone, including anyone who manufactures, imports,
installs, owns, operates, or rebuilds any of the engines subject to
this part 1039, or equipment containing these engines. Part 1068 of
this chapter describes general provisions, including these seven areas:
(1) Prohibited acts and penalties for engine manufacturers,
equipment manufacturers, and others.
(2) Rebuilding and other aftermarket changes.
(3) Exclusions and exemption for certain engines.
(4) Importing engines.
(5) Selective enforcement audits of your production.
(6) Defect reporting and recall.
(7) Procedures for hearings.
(c) Other parts of this chapter apply if referenced in this part.
Subpart B--Emission Standards and Related Requirements
Sec. 1039.101 What exhaust emission standards must my engines meet?
The exhaust emission standards of this section apply for the model
years noted and later. See Sec. 1039.102 and 40 CFR 89.112 for exhaust
emission standards that apply to earlier model years.
(a) Emission standards for transient testing. Transient exhaust
emissions from your engines may not exceed the applicable emission
standards listed in Table 1 of this section. Measure emissions using
the applicable transient test procedures described in subpart F of this
part.
(b) Emission standards for steady-state testing. Steady-state
exhaust emissions from your engines may not exceed the applicable
emission standards listed in Table 1 of this section. Measure emissions
using the applicable steady-state test procedures described in subpart
F of this part.
Table 1 of Sec. 1039.101.--Tier 4 Exhaust Emissions Standards
----------------------------------------------------------------------------------------------------------------
Emissions standard g/kW-hr
Engine power Model year -----------------------------------------------------------
PM NOX NMHC NOX+NMHC CO
----------------------------------------------------------------------------------------------------------------
kW < 19 \1\............................. 2008 \2\ 0.40 .......... .......... 7.5 6.6
19 <= kW < 56........................... 2013 0.03 .......... .......... 4.7 5.0
56 <= kW < 130.......................... 2014 0.02 0.40 0.19 .......... 5.0
130 <= kW <= 560........................ 2014 0.02 0.40 0.19 .......... 3.5
kW £ 560...................... 2014 0.02 0.40 0.19 .......... 3.5
----------------------------------------------------------------------------------------------------------------
\1\ Paragraph (a) of this section does not apply for engines under 19 kW until model year 2013.
\2\ See paragraph (j) of this section for provisions related to an optional PM standard for engines under 8 kW.
(c) Averaging banking and trading. In lieu of the NOX,
NOX+NMHC, or PM standards in Table 1 of this section, you
may choose to include an engine family in the averaging, banking, and
trading (ABT) program provided in subpart H of this part. This requires
that you specify a single family emission limit (FEL) for each
pollutant for each engine family included in the ABT program. These
FELs are the applicable emission standards for the engine family with
respect to both transient testing and steady-state testing under
paragraphs (a) and (b) of this section. The FELs will also define the
NTE standards for your engine family, as specified in paragraph (d) of
this section. The FEL may not be higher than the limits in Table 2 of
this section, except as allowed by paragraph (i) of this section.
Table 2 of Sec. 1039.101.--Tier 4 FEL Caps
----------------------------------------------------------------------------------------------------------------
Emission g/kW-hr
Engine power -----------------------------------------------
PM NOX NOX+NMHC
----------------------------------------------------------------------------------------------------------------
kW < 8.......................................................... 0.80 .............. 10.5
8 <= kW < 19.................................................... 0.80 .............. 9.5
19 <= kW < 56................................................... 0.05 .............. 7.5
56 <= kW < 130.................................................. 0.04 0.80 ..............
130 <= kW < 560................................................. 0.04 0.80 ..............
kW £= 560............................................. 0.04 0.80 ..............
----------------------------------------------------------------------------------------------------------------
(d) Not-to-exceed standards. (1) Exhaust emissions from the engine
may not exceed the applicable NTE standards. Measure emissions
according to the procedures specified Sec. 1039.515.
(2) The NTE standard, rounded to the same number of decimal places
as the applicable standard in Table 1 of this section, is determined
from the following equation:
NTE standard for each pollutant = (STD) x (M)
Where:
(i) STD = The standard specified for that pollutant in Table 1 of
this section if you certify without using ABT for that pollutant, or
the FEL for that pollutant if you certify using ABT.
(ii) M = The NTE multiplier for that pollutant, as defined in
paragraph (d)(3) of this section.
(3) The NTE multiplier for each pollutant equals 1.25, except in
the following cases:
[[Page 28559]]
Table 3 of Sec. 1039.101
------------------------------------------------------------------------
If . . . or . . . then . . .
------------------------------------------------------------------------
(i)The engine family is The engine famiily The multipliers for
certified to a NOX standard is certified to a NMHC, NOX and/or
less than 2.00 g/k-W-hr NOX FEL less than NOX + NMHC are
without using ABT. 2.00 g/kW-hr (or an 1.50.
NOX +NMHC Fell less
than 2.20 g/kW-hr).
(ii) The engine family is The engine family is The multiplier for
certified to a PM standard certified to a PM PM is 1.50
less than 0.07 g/kw-hr FEL less than 0.07
without using ABT. g.kw-hr.
------------------------------------------------------------------------
(4) (i) There are two sets of specifications of ambient operating
regions that apply for NTE testing. You must choose one set for each
engine family. You may choose separately for each engine family. You
must indicate your choice of ambient operating region in your
application for certification. The region that you choose will apply
for all NTE testing of engines in your engine family. You must choose
one of the following two ambient operating regions:
(A) All altitudes less than or equal to 5,500 feet above sea level,
during all ambient conditions (temperature and humidity).
(B) All altitudes less than or equal to 5,500 feet above sea level,
for temperatures less than or equal to the temperature determined by
the following equation at the specified altitude;
T = -0.00254 x A + 100
Where:
T = ambient air temperature in degrees Fahrenheit.
A = altitude in feet above sea level (A is negative for altitudes
below sea level).
(ii) Temperature and humidity ranges for which correction factors
are allowed are specified in 40 CFR 86.1370-2007(e).
(A) If you choose the ambient operating region specified in
paragraph (c)(4)(i)(A) of this section, then the temperature and
humidity ranges for which correction factors are allowed are defined
under 40 CFR 86.1370-2007(e)(1).
(B) If you choose the ambient operating region specified in
paragraph (c)(4)(i)(B) of this section, then the temperature and
humidity ranges for which correction factors are allowed are defined
under 40 CFR 86.1370-2007(e)(2).
(5) For engines equipped with exhaust-gas recirculation, the NTE
emission limits of this section do not apply during cold operating
conditions as specified in 40 CFR 86.1370-2007(f).
(6) For engines certified to an FEL less than 0.01 g/kW-hr PM, the
PM NTE is 0.02 g/kW-hr.
(e) [Reserved]
(f) Fuel types. The exhaust emission standards in this section
apply for engines using each type of fuel on which the engines in the
engine family are designed to operate. You must meet the numerical
emission standards for NMHC in this section based on the following
types of hydrocarbon emissions for engines powered by the following
fuels:
(1) Diesel-fueled engines: NMHC emissions.
(2) Natural gas-fueled engines: NMHC emissions.
(3) Alcohol-fueled engines: THCE emissions.
(g) Useful life. (1) Your engines must meet the exhaust emission
standards in paragraphs (a) through (d) of this section over their full
useful life. The useful life values are shown in the following table:
Table 4 of Sec. 1039.101
----------------------------------------------------------------------------------------------------------------
And its maximum power And its rated speed is Then its useful life is
If your engine is certified as . . . is . . . . . . . . .
----------------------------------------------------------------------------------------------------------------
Variable speed or constant speed..... Less than 19 kW........ Any speed.............. 3,000 hours or five
years, whichever comes
first.
Constant speed....................... At least 19 kW, but 3,000 rpm or higher.... 3,000 hours or five
less than 37 kW. years, whichever comes
first.
Constant speed....................... At least 19 kW, but Less than 3,000 rpm.... 5,000 hours or seven
less than 37 kW. years, whichever comes
first
Variable speed....................... At least 19 kW, but Any speed.............. 5,000 hours or seven
less than 37 kW. years, whichever comes
first.
Variable speed or constant speed..... 37kW or higher......... Any speed.............. 8,000 hours or ten
years, whichever comes
first
----------------------------------------------------------------------------------------------------------------
(2) You may request in your application for certification that we
approve a shorter useful life for an engine family. We may approve a
shorter useful life if we determine that these engines will rarely
operate longer than the alternate useful life. Your demonstration must
include documentation from in-use engines. Your demonstration must also
include any overhaul interval that you recommend and any mechanical
warranty that you offer for the engine.
(h) Applicability for testing. The emission standards in this
subpart apply to all testing, including certification, selective
enforcement audits and in-use testing.
(i) Alternate FEL caps. You are allowed to certify a limited number
of engines to FELs higher than the caps listed in Table 2 of this
section. The FEL caps shown in Table 5 of this section apply instead of
the otherwise applicable FEL caps, subject to the sales limits listed
in the table.
[[Page 28560]]
Table 5 of Sec. 1039.101.--Alternate FEL Caps
----------------------------------------------------------------------------------------------------------------
Maximum
percentage of
production
that may be NOX FEL cap (g/kW- PM FEL cap (g/kW-
Power category Model years certified to hr) hr)
using these
alternate FEL
caps
----------------------------------------------------------------------------------------------------------------
19 <= kW < 56................ 2013-2016 10 Not applicable...... 0.30
2017+ 5
56 <= kW <130................ 2012-2013 10 Not applicable...... 0.40 for hp <75
2014-2015 10 4.4 for kW <75...... 0.30 for hp =75
2016+ 5 3.8 for kW =75 2014-2015.
130 <= kW <= 560............. 2011-2013 10 Not applicable...... 0.20
2014 10 3.8.................
2015+ 5
kW £ 560........... 2014-2017 10 6.2................. 0.20
2018+ 5
----------------------------------------------------------------------------------------------------------------
(j) Optional PM standard for engines under 8 kW. You may certify
certain engines under 8 kW to the optional Tier 4 PM standard of 0.60
g/kW-hr, instead of the PM standard listed in Table 1 of this section,
as described in this paragraph.
(1) The provisions of this paragraph (j) are available only for
engines with maximum engine power under 8 kW that are hand-startable,
air-cooled, and direct injection. The term hand-startable generally
refers to engines that are started using a hand crank or pull cord.
(2) Engines certified under paragraphs (j)(3)(i) or (ii) may not be
used to generate positive emission credits under the ABT provisions of
subpart H of this part.
(3)(i) The applicable standard for model years 2008 and 2009 under
this paragraph (j) is 0.80 g/kW-hr.
(ii) Starting with model year 2010 standard under this paragraph
(j) is 0.60 g/kW-hr standard.
(4) The FEL cap for engines certified under this paragraph (j) is
0.80 g/kW-hr.
Sec. 1039.102 What exhaust emission standards must my engines meet
before model year 2014?
The exhaust emission standards of this section apply for the model
years specified in Tables 1 through 6 of this section. See Sec.
1039.101 for exhaust emission standards that apply to later model
years. See 40 CFR 89.112 for exhaust emission standards that apply to
model years before those listed in the tables.
(a) Emission standards for transient testing. Transient exhaust
emissions from your engines may not exceed the applicable emission
standards in Tables 1 through 6 of this section. Measure emissions
using the applicable transient test procedures described in subpart F
of this part. The transient standards do not apply for the following
cases:
(1) Engines less than or equal to 37 kW in model years before 2013.
(2) Phase-out engines over 560 kW that are certified using the
carry-over provisions of Sec. 1039.235(d).
(b) Emission standards for steady-state testing. Steady-state
exhaust emissions from your engines may not exceed the applicable
emission standards listed in Tables 1 through 6 of this section.
Measure emissions using the applicable steady-state test procedures
described in subpart F of this part.
Table 1 of Sec. 1039.102--Interim Tier 4 Exhaust Emissions Standards for Engines 19<=kW<37
----------------------------------------------------------------------------------------------------------------
Emissions standard g/kW-hr
Model years --------------------------------------------------
PM NOX+NMHC CO
----------------------------------------------------------------------------------------------------------------
2008-2012.................................................... 0.30 7.5 5.0
----------------------------------------------------------------------------------------------------------------
Table 2 of Sec. 1039.102.--Interim Tier 4 Exhaust Emissions Standards for Engines 37<=kW<56
----------------------------------------------------------------------------------------------------------------
Emissions standard g/kW-hr
Model years -----------------------------------------------
PM NOX+NMHC CO
----------------------------------------------------------------------------------------------------------------
Option No. 1..................... 2008-2012.................... 0.30 4.7 5.0
Option No. 2..................... 2012 (optional).............. 0.03 4.7 5.0
----------------------------------------------------------------------------------------------------------------
[[Page 28561]]
Table 3 of Sec. 1039.102.--Interim Tier 4 Exhaust Emissions Standards for Engines 56£kW<75
----------------------------------------------------------------------------------------------------------------
Emissions standard g/kW-hr
Model years Phase-in option ----------------------------------------------------------------
PM NOX NMHC NOX+NMHC CO
----------------------------------------------------------------------------------------------------------------
2012-2013 Phase-in................ 0.02 0.40 0.19 ........... 5.0
Phase-out (No more than 0.02 ........... ........... 4.7 5.0
50%).
----------------------------------------------------------------------------------------------------------------
Table 4 of Sec. 1039.102.--Interim Tier 4 Exhaust Emissions Standards for Engines 75<=kW<130
----------------------------------------------------------------------------------------------------------------
Emissions standard g/kW-hr
Model years Phase-in option ----------------------------------------------------------------
PM NOX NMHC NOX+NMHC CO
----------------------------------------------------------------------------------------------------------------
2012-2013 Phase-in................ 0.02 0.40 0.19 ........... 5.0
Phase-out (No more than 0.02 ........... ........... 4.0 5.0
50%).
----------------------------------------------------------------------------------------------------------------
Table 5 of Sec. 1039.102.--Interim Tier 4 Exhaust Emissions Standards for Engines 130<=kW<=560
----------------------------------------------------------------------------------------------------------------
Emissions standard g/kW-hr
Model years Phase-in option ----------------------------------------------------------------
PM NOX NMHC NOX+NMHC CO
----------------------------------------------------------------------------------------------------------------
2012-2013 Phase-in................ 0.02 0.40 0.19 ........... 3.5
Phase-out (No more than 0.02 ........... ........... 4.0 3.5
50%).
----------------------------------------------------------------------------------------------------------------
Table 6 of Sec. 1039.102.--Interim Tier 4 Exhaust Emissions Standards for Engines kW£560
----------------------------------------------------------------------------------------------------------------
Emissions standard g/kW-hr
Model years Phase-in option ----------------------------------------------------------------
PM NOX NMHC NOX+NMHC CO
----------------------------------------------------------------------------------------------------------------
2012-2013 Phase-in................ 0.02 0.40 0.19 ........... 3.5
Phase-out (No more than 0.02 ........... ........... 6.4 3.5
50%).
----------------------------------------------------------------------------------------------------------------
(c) Phase-in option. The following phase-in provisions apply for
engines with maximum engine power of 56 kW or higher.
(1) For model years noted in Tables 3 through 6 of this section,
you may certify some of your engine families to the combined
NOX+NMHC standard specified in the phase-in option instead
of to the separate NOX and NMHC standards otherwise
specified in the applicable table.
(2) For engines with maximum engine power over 560 kW for the model
years noted in Table 6 of this section, you may certify some of your
engine families to the PM standard specified in the phase-in option
instead of to the PM standard otherwise specified in the applicable
table. Engines certified to the phase-out standards in Table 6 of this
section that are not naturally aspirated are not required to meet the
crankcase emission standard in 1039.115(a).
(3) Engines certified to the phase-out standards in Tables 3
through 5 must comply with all other requirements applicable to Tier 4
engines, except as specified in paragraph (d) of this section.
(4) The combined number of engines in the engine families certified
to phase-out standards may not exceed 50 percent of your U.S.-directed
production volume of nonroad CI engines for that power category for any
model year, except as explicitly allowed by Sec. 1039.104(c).
(d) Other provisions. The provisions of Sec. 1039.101 (c) through
(i) apply with respect to the standards of this section with the
following exceptions:
(1) NTE standards. NTE standards are determined relative to the
standards listed in Tables 1 through 7 of this section, instead of the
standards listed in Table 1 of Sec. 1039.101. There are no NTE
standards for the optional phase-out standards specified in Table 6 of
this section for engines over 560 kW that are certified using the
carry-over provisions of Sec. 1039.235(d).
(2) The FEL caps listed in Tables 7 and 8 of this section apply
instead of the FEL caps in Table 2 of Sec. 1039.101.
Table 7 of Sec. 1039.102.--Interim Tier 4 FEL Caps for Engines With
Maximum Engine Power Less than 56 kW and Phase-in Engines With Maximum
Engine Power Greater than or Equal to 56 kW
------------------------------------------------------------------------
Emission g/kW-hr
Engine power ---------------------------------------
PM NOX NOX+NMHC
------------------------------------------------------------------------
19 <= kW < 37................... 0.60 ........... 9.5
37 <= kW < 56................... 0.40 ........... 7.5
[[Page 28562]]
56 <= kW < 75................... 0.040 4.4 ...........
75 <= kW <= 560................. 0.040 3.7 ...........
kW £ 560.............. 0.20 6.1 ...........
------------------------------------------------------------------------
Table 8 of Sec. 1039.102.--Interim Tier 4 FEL Caps for Phase-Out
Engines
------------------------------------------------------------------------
Emission g/kW-hr
Engine power --------------------------
PM NOX+NMHC
------------------------------------------------------------------------
56 <= kW < 75................................ 0.040 7.5
75 <= kW < 225............................... 0.040 6.6
225 <= kW < 560.............................. 0.040 6.4
kW £= 560.......................... 0.54 10.5
------------------------------------------------------------------------
(e) Banked credits for 56 < kW < 130 engines. The provisions of
this paragraph apply for model year 2012-2014 engines with maximum
engine power at least 56 kW, but less than 130 kW.
(1) You may use under subpart H of this part banked Tier 2
NOX + NMHC credits generated from engines rated at least 37
kW.
(2) If you optionally forego during model years 2012-2014 the use
banked Tier 2 credits allowed by paragraph (e)(1) of this section, you
may certify your 56 <= kW < 130 engines according to the alternate
phase-in schedule described in this paragraph (e)(2). You may not bank
or trade any credits generated from engines certified under this
paragraph (e)(2).
Table 9 of Sec. 1039.102.--Alternate Phase-In Schedule for 56<=kW<130
Engines
------------------------------------------------------------------------
Minimum
Model year phase-in
percentage
------------------------------------------------------------------------
2012....................................................... 25
2013....................................................... 25
2014:
First nine months........................................ 25
Last three months........................................ 100
2015 and later............................................. 100
------------------------------------------------------------------------
Sec. 1039.104 Are there interim provisions that apply only for a
limited time?
The provisions in this section apply instead of other provisions in
this part. This section describes the model years for these interim
provisions apply.
(a) Split Families. For the purpose of using or generating credits
during the phase-in of Tier 4 standards, you may choose to split an
engine family into two subfamilies (for example, one that uses credits
and one that generates credits).
(1) You must indicate in the application for certification that the
engine family is to be split, and may assign the numbers and
configurations of engines within the respective subfamilies at any time
prior to the submission of the end-of-year report. This option is not
available for engine families under 56 kW.
(2) You may exclude the engines within the split family from end-
of-year NOX (or NOX + NMHC) ABT calculations,
provided that the family meets the standards of this paragraph (a)(2)
and neither subfamily generates credits for use by other engine
families, or uses banked credits, or uses averaging credits from other
engine families. All the engines in the split family must be excluded
from the phase-in calculations (both from the number of engines
complying with the Tier 4 emission standards being phased-in and from
the total number of engines in the U.S.-directed production volume).
The engines must comply with all other applicable requirements of this
part.
(i) Label all the engines within the family with a single
NOX FEL, as listed in the following table:
------------------------------------------------------------------------
Then the NOX
FEL for the
If the engine family's maximum-power range is . . . entire family
is . . .
------------------------------------------------------------------------
(A) At least 56 kW, but less than 130 kW................ 2.3 g/kW-hr.
(B) At least 130 but less than 560 kW................... 2.0 g/kW-hr.
(C) 560 kW or higher.................................... 3.1 g/kW-hr.
------------------------------------------------------------------------
(ii) For split families with maximum engine power over 560 kW, your
PM FEL is 0.10 g/kW-hr.
(iii) For engines certified under the alternate phase-in schedule
of Sec. 1039.102(e)(2), the NOX FEL is 3.3 g/kW-hr.
(3) Your engines must comply with all other standards and
requirements applicable to Tier 4 engines.
(b) Incentives for early introduction. You may reduce the number of
engines that are required to meet the standards in Sec. Sec.
1039.101or 1039.102 by certifying engines to the applicable standards
in Sec. 1039.101 (without using the provisions of subpart H of this
part) before the model year otherwise required (either by Sec. Sec.
1039.101 or 1039.102. This option begins in model year 2008.
(1) For engines with maximum engine power at 56 kW or higher:
----------------------------------------------------------------------------------------------------------------
You may reduce the
number of engines in
the same power
If you certify . . . To the . . . category that are In later model years by . . .
required to meet the
. . .
----------------------------------------------------------------------------------------------------------------
Two engines...................... 0.020 g/kW-hr PM 0.020 g/kW-hr PM Three engines.
standard. standard.
[[Page 28563]]
Two engines...................... 0.020 g/kW-hr PM 0.020 g/kW-hr PM Three engines.
standard, the 0.40 standard, the 0.40
g/kW-hr NOX g/kW-hr NOX
standard, and the standard, and the
0.19 g/kW-hr NMHC 0.19 g/kW-hr NMHC
standard. standard.
One engine....................... 0.020 g/kW-hr PM 0.020 g/kW-hr PM Two engines.
standard, the 0.20 standard, the 0.40
g/kW-hr NOX g/kW-hr NOX
standard, and the standard, and the
0.19 g/kW-hr NMHC 0.19 g/kW-hr NMHC
standard. standard.
----------------------------------------------------------------------------------------------------------------
(2) For engines with maximum power less than 56 kW:
----------------------------------------------------------------------------------------------------------------
You may reduce the
number of engines in
any family with
If you certify . . . To a . . . maximum power In later model years by . . .
between 19 and 56 kW
that are required to
meet the . . .
----------------------------------------------------------------------------------------------------------------
Two engines...................... 0.034 g/kW-hr PM 0.034 g/kW-hr PM Three engines.
standard. standard.
----------------------------------------------------------------------------------------------------------------
(3) Example: If you produce 100 56-130 kW engines in 2008 that meet
all of the applicable the standards listed in Sec. 1039.101, and you
produced 10,000 56-130 kW engines in 2012, then only 9,850 of the
engines would need to comply with the standards listed in Sec.
1039.101 in 2012.
(c) Phase-in projections. You may initially base compliance with
the phase-in requirements of Sec. 1039.102 on projected U.S.-directed
production volumes. This is allowed for all phase-in model years,
except the last year in which less than 100 percent compliance is
required. However, if your actual U.S.-directed production volume of
engines that comply with the Tier 4 standards is less than the required
amount, you must make up the shortfall (in terms of number of engines)
before the end of the phase-in period. For example, if you plan in good
faith to produce 50 percent of your projected 10,000 56-130kW engines
(i.e., 5,000 engines) in 2012 in compliance with the Tier 4
NOX and NMHC standards, but are only able to produce 4,500
such engines of an actual 10,000 engines, you would need to produce an
extra 500 engines in 2013 in compliance with the Tier 4 NOX
and NMHC standards.
(1) For phase-in schedules other than the alternate schedule
described in Table 9 of Sec. 1039.102, the deficit allowed by this
paragraph (f) may not exceed 25 percent of your U.S. directed
production volume.
(2) For the phase-in schedule described in Table 9 of Sec.
1039.102, the deficit allowed by this paragraph (f) may not exceed 5
percent of your U.S. directed production volume.
(d) In-use compliance levels. (1) For purposes of determining
compliance after title or custody has transferred to the ultimate
purchaser, for model year 2015 or earlier engines having a
NOX FEL no higher than 2.0 g/kW-hr, the applicable
NOX compliance limit shall be determined by adding the
following adjustment to the otherwise applicable standard or FEL for
NOX.
------------------------------------------------------------------------
If your engine's
In model years . . . maximum power is . . The NOX adjustment
. in g/kW-hr is . . .
------------------------------------------------------------------------
2012-2015................... 56 <= kW < 130...... 0.13 for operating
hours <= 4000.
0.27 for operating
hours £
4000.
2011-2015................... kW £= 130. 0.13 for operating
hours <= 4000.
0.27 for operating
hours £
4000.
------------------------------------------------------------------------
(2) For model years before 2014 for engines with maximum power less
than 56 kW, and model years before 2015 for engines with maximum power
at 56 kW or higher, for purposes of determining compliance after title
or custody has transferred to the ultimate purchaser, the applicable PM
compliance limit shall be determined by adding 0.01 g/kW-hr to the
otherwise applicable standard or FEL for PM.
(e) Provisions for small-volume manufacturers. Special provisions
apply to you if you are a small-volume engine manufacturer subject to
the requirements of this part. You must contact us before 2008 if you
intend to use these provisions.
(1) You may delay complying with the following otherwise applicable
Tier 4 emission standards for three model years:
(i) PM standard for engines with maximum power less than 19 kW.
(ii) NMHC + NOX standard for engines with maximum power
at least 19 kW but less than 37 kW.
(iii) NMHC + NOX and PM standards for engines with
maximum power at least 56 kW but less than 130 kW.
(2) For engines with maximum power at least 19 kW but less than 56
kW, if you choose to meet the interim PM standard in Sec. 1039.102 by
model year 2011 (without using PM credits), you may delay complying
with the Tier 4 PM standard in Sec. 1039.101 for engines with maximum
power at least 19 kW but less than 56 kW for three model years.
(f) Deficiencies for NTE emission standards. (1) For the first
three model years during which Tier 4 standards apply for your engines,
you may ask us to accept an engine as compliant with the NTE standards
even though specific requirements are not fully met. We will grant such
deficiencies (i.e., compliance without meeting specific requirements)
only if compliance would be infeasible or unreasonable considering such
factors as, but not limited to: technical feasibility of the given
hardware and lead time and production cycles, including phase-in or
phase-out of engines or vehicle designs and programmed upgrades of
computers. We will approve deficiencies on an engine-model and/or
horsepower-rating basis within an engine family, and each approval is
applicable for a single model
[[Page 28564]]
year. Your request must include a description of the auxiliary emission
control device(s) which will be used to maintain emissions to the
lowest practical level, considering the deficiency being requested, if
applicable. An application for a deficiency must be made during the
certification process; no deficiency will be granted to retroactively
cover engines already certified.
(2) For the next four model years after the period covered by
paragraph (f)(1) of this section, we may allow up to three deficiencies
per engine family. The provisions of paragraphs (f)(1) of this section
apply for deficiencies allowed by this paragraph (f)(2). In determining
whether to allow the additional deficiencies, we may consider any
relevant factors, including the factors identified in paragraph (f)(1)
of this section. If we approve additional deficiencies, we may set any
additional conditions that we determine to be appropriate.
(3) Unmet requirements should not be carried over from the previous
model year, except where unreasonable hardware or software
modifications would be necessary to correct the deficiency, and we
determine that you have demonstrated an acceptable level of effort
toward compliance. The NTE deficiency should only be seen as an
allowance for minor deviations from the NTE requirements. The NTE
deficiency provisions allow you to apply for relief from the NTE
emission requirements under limited conditions. We expect that you
should have the necessary functioning emission-control hardware in
place to comply with the NTE standards.
(g) Test fuels. The diesel test fuel for model years 2008 through
2010 is the diesel test fuel specified in 40 CFR 1065.205, with the
following exception: the sulfur content must be 300-500 ppm instead of
7-15 ppm. This paragraph (g) also allows the early use of 7-15 ppm
sulfur test fuels in certain cases.
(1) For model years 2008 through 2010, you may use the 7-15 ppm
sulfur test fuel for any engine family where you can demonstrate that
the engines in the family will operate only on fuel with less than 15
ppm sulfur in-use.
(2) For model years 2008 through 2010, you may use the 7-15 ppm
sulfur test fuel for any engine family containing only engines with
maximum engine power less than 56 kW, provided:
(i) You ensure that ultimate purchasers of equipment using these
engines are informed that the use of fuel meeting the 15 ppm
specification is recommended.
(ii) You provide along with your installation instructions to
equipment manufacturers labels to be applied at the fuel inlet
recommending 15 ppm fuel. This labeling requirement applies instead of
the requirement in Sec. 1039.135(f).
(iii) None of the engines in your engine family employ sulfur-
sensitive technologies.
(4) For engines certified under Sec. 1039.101(j) in model year
2010, the diesel test fuel is the diesel test fuel specified in 40 CFR
1065.205.
(h) Requirements for equipment manufacturers. The provisions of
this paragraph (h) apply to equipment manufacturers that use engines
certified to the Tier 3 standards under Option #2 of Table 2 of
Sec. 1039.102 in any model year from 2008 to 2011. For model year
2012, you must use engines certified under Option #2 of Table 2
of Sec. 1039.102 in any product for which you previously used an
engine certified to the Tier 3 standards under Option #2 of
Table 2 of Sec. 1039.102. Use of an engine in model year 2012 that was
certified under Option #1 of Table 2 of Sec. 1039.102 in such
equipment would be a violation of Sec. 1068.101(a)(1).
Sec. 1039.105 What smoke standards must my engines meet?
Your engines must have less than 22 percent opacity when measured
with the smoke test procedure in Sec. 1039.501 throughout its useful
life.
Sec. 1039.107 What evaporative emissions standards and requirements
apply?
There are no evaporative emission standards for diesel-fueled
engines, or engines using other nonvolatile or nonliquid fuels (for
example, natural gas). If your engine uses a volatile liquid fuel, such
as methanol, you must meet the evaporative emission requirements of 40
CFR part 1048 that apply to spark-ignition engines, as follows:
(a) Follow the steps in 40 CFR 1048.245 to show that you meet the
requirements of 40 CFR 1048.105.
(b) Do the following things in your application for certification:
(1) Describe how your engines control evaporative emissions.
(2) Present test data to show your vehicles meet the evaporative
emission standards we specify in subpart B of this part if you do not
use design-based certification under 40 CFR 1048.245. Show these
figures before and after applying deterioration factors, where
applicable.
Sec. 1039.110 [Reserved]
Sec. 1039.115 What other requirements must my engines meet?
Your engines must meet the following requirements:
(a) Crankcase emissions. Crankcase emissions may not be discharged
directly into the ambient atmosphere from any engine, except as
follows:
(1) Engines equipped with turbochargers, pumps, blowers, or
superchargers for air induction may discharge crankcase emissions to
the ambient atmosphere if the emissions are added to the exhaust
emissions (either physically or mathematically) during all emission
testing.
(2) If you take advantage of this exception, you must:
(i) Manufacture the engines so that all crankcase emission can be
routed into the applicable sampling systems specified in 40 CFR part
1065.
(ii) Account for deterioration in crankcase emissions when
determining exhaust deterioration factors.
(3) For the purpose of this paragraph (a), crankcase emissions that
are routed to the exhaust upstream of exhaust aftertreatment during all
operation are not considered to be ``discharged directly into the
ambient atmosphere.''
(b)-(d) [Reserved]
(e) Adjustable parameters. Engines that have adjustable parameters
must meet all the requirements of this part for any adjustment in the
physically adjustable range. An operating parameter is not considered
adjustable if you permanently seal it or if it is not normally
accessible using ordinary tools. We may require that you set adjustable
parameters to any specification within the adjustable range during any
testing, including certification testing, selective enforcement
auditing, or in-use testing.
(f) Prohibited controls. You may not design your engines with
emission-control devices, systems, or elements of design that cause or
contribute to an unreasonable risk to public health, welfare, or safety
while operating. For example, this would apply if the engine emits a
noxious or toxic substance it would otherwise not emit that contributes
to such an unreasonable risk.
(g) Defeat devices. You may not equip your engines with a defeat
device. A defeat device is an auxiliary emission control device that
reduces the effectiveness of emission controls under conditions that
the engine may reasonably be expected to encounter during normal
operation and use. This does not apply to auxiliary emission control
devices you identify in your
[[Page 28565]]
certification application if any of the following is true:
(1) The conditions of concern were substantially included in the
applicable test procedures described in subpart F of this part.
(2) You show your design is necessary to prevent engine (or
equipment) damage or accidents.
(3) The reduced effectiveness applies only to starting the engine.
Sec. 1039.120 What emission-related warranty requirements apply to
me?
(a) General requirements. You must warrant to the ultimate
purchaser and each subsequent purchaser that the new nonroad engine,
including all parts of its emission-control system, meets two
conditions:
(1) It is designed, built, and equipped so it conforms at the time
of sale to the ultimate purchaser with the requirements of this part.
(2) It is free from defects in materials and workmanship that may
keep it from meeting these requirements.
(b) Warranty period. Your emission-related warranty must be valid
for at least as long as the minimum warranty periods listed in this
paragraph (b) in hours of operation and years, whichever comes first.
You may offer an emission-related warranty more generous than we
require. The emission-related warranty for the engine may not be
shorter than any published warranty you offer for the engine. If you
provide a longer warranty (with or without charge) for any components
covered in paragraph (c) of this section, you must also extend the
emission-related warranty to the same degree for the same components.
If an engine has no hour meter, we base the warranty periods in this
paragraph (b) only on the engine's age (in years). The minimum warranty
periods are shown in the following table:
----------------------------------------------------------------------------------------------------------------
And its maximum power And its rated speed is Then its warranty
If your engine is certified as . . . is . . . . . . period is . . .
----------------------------------------------------------------------------------------------------------------
Variable speed or constant speed..... Less than 19 kW........ Any speed.............. 1,500 hours or two
years, whichever comes
first.
Constant speed....................... At least 19 kW, but 3,000 rpm or higher.... 1,500 hours or two
less than 37 kW. years, whichever comes
first.
Constant speed....................... At least 19 kW, but Less than 3,000 rpm.... 3,000 hours or five
less than 37 kW. years, whichever comes
first.
Variable speed....................... At least 19 kW, but Any speed.............. 3,000 hours or five
less than 37 kW. years, whichever comes
first.
Variable speed or constant speed..... 37 kW or higher........ Any speed.............. 3,000 hours or five
years, whichever comes
first.
----------------------------------------------------------------------------------------------------------------
(c) Components covered. The emission-related warranty covers all
components whose failure would increase an engine's emissions. This
includes components listed in 40 CFR 1068, Appendix I, and components
from any other system you develop to control emissions. The emission-
related warranty covers these components even if another company
produces the component. Your emission-related warranty does not cover
components whose failure would not increase an engine's emissions.
(d) Limited applicability. You may deny warranty claims under this
section if the operator caused the problem, as described in 40 CFR
1068.115.
Sec. 1039.125 What maintenance instructions must I give to buyers?
Give the ultimate purchaser of each new nonroad engine written
instructions for properly maintaining and using the engine, including
the emission-control system. The maintenance instructions also apply to
service accumulation on your test engines, as described in 40 CFR part
1065, subpart E.
(a) Critical emission-related maintenance. Critical emission-
related maintenance includes any adjustment, cleaning, repair, or
replacement of air-induction, fuel-system, or ignition components,
aftertreatment devices, exhaust-gas recirculation systems, crankcase
ventilation valves, sensors, or electronic control units. This may also
include any other component whose only purpose is to reduce emissions
or whose failure will increase emissions without significantly
degrading engine performance. You may schedule critical emission-
related maintenance on these components if you meet the following
conditions:
(1) You may ask us to approve critical emission-related maintenance
only if operators are reasonably likely to do the maintenance you call
for.
(2) We will accept scheduled maintenance as reasonably likely to
occur in use if you satisfy any of four conditions:
(i) You present data showing that, if a lack of maintenance
increases emissions, it also unacceptably degrades the engine's
performance.
(ii) You present survey data showing that 80 percent of engines in
the field get the maintenance you specify at the recommended intervals.
(iii) You provide the maintenance free of charge and clearly say so
in maintenance instructions for the customer.
(iv) You otherwise show us that the maintenance is reasonably
likely to be done at the recommended intervals.
(3) For engine's with maximum power below 130 kW, you may not
schedule emission-related maintenance more frequently than the
following minimum intervals, except as specified in paragraph (a)(5) of
this section:
(i) For EGR-related filters and coolers, PCV valves, and fuel
injector tips (cleaning only), the minimum interval is 1,500 hours.
(ii) For fuel injectors, turbochargers, catalytic converter,
electronic engine control units (and associated sensors and actuators),
particulate traps, trap oxidizers, and related components (cleaning and
repair only), EGR system (including related components, but excluding
filters and coolers), and other add-on emission-related components, the
minimum interval is 3,000 hours.
(4) For engine's with maximum power at or above 130 kW, you may not
schedule emission-related maintenance more frequently than the
following minimum intervals, except as specified in paragraph (a)(5) of
this section:
(i) For EGR-related filters and coolers, PCV valves, and fuel
injector tips (cleaning only), the minimum interval is 1,500 hours.
(ii) For fuel injectors, turbochargers, catalytic converter,
electronic engine control units (and associated sensors and actuators),
particulate traps, trap oxidizers, and related components (cleaning and
repair only), EGR system (including related components, but excluding
filters and coolers), and other add-on emission-related components, the
minimum interval is 4,500 hours.
(5) If your engine family has an alternate useful life shorter than
the period specified in paragraph (a)(3) or (a)(4) of this section, you
may not
[[Page 28566]]
schedule maintenance on those components more frequently than the
alternate useful life (see Sec. 1039.101(g)).
(b) Recommended additional maintenance. You may recommend any
additional amount of maintenance on the components listed in paragraph
(a) of this section, as long as you make clear that these maintenance
steps are not necessary to keep the emission-related warranty valid. If
operators do the maintenance specified in paragraph (a) of this
section, but not the recommended additional maintenance, this does not
allow you to disqualify them from in-use testing or deny a warranty
claim.
(c) Special maintenance. You may specify more frequent maintenance
to address problems related to special situations, such as atypical
engine operation.
(d) Noncritical emission-related maintenance. For engine parts not
listed in paragraph (a) of this section, you may schedule any amount of
emission-related inspection or maintenance. But you must state clearly
that these steps are not necessary to keep the emission-related
warranty valid. Also, do not take these inspection or maintenance steps
during service accumulation on your test engines.
(e) Maintenance that is not emission-related. For maintenance
unrelated to emission controls, you may schedule any amount of
inspection or maintenance. You may also take these inspection or
maintenance steps during service accumulation on your test vehicles or
engines. This might include adding engine oil, changing air, fuel, or
oil filters, cooling system maintenance, adjustment of idle speed,
governor, engine bolt torque, valve lash, injector lash, timing, or
lubrication of the exhaust manifold heat control valve. This
nonemission-related maintenance may be performed on durability vehicles
at the least frequent intervals that you recommend to the ultimate
purchaser (not the intervals recommended for severe service).
(f) Source of parts and repairs. Print clearly on the first page of
your written maintenance instructions that any repair shop or person
may maintain, replace, or repair emission-control devices and systems.
Your instructions may not require components or service identified by
brand, trade, or corporate name. Also, do not directly or indirectly
condition your warranty on a requirement that the vehicle be serviced
by your franchised dealers or any other service establishments with
which you have a commercial relationship.
You may disregard the requirements in this paragraph (f) if you do
one of two things:
(1) Provide a component or service without charge under the
purchase agreement.
(2) Get us to waive this prohibition in the public's interest by
convincing us the engine will work properly only with the identified
component or service.
(g) Owner's responsibility for maintenance. The owner is
responsible for proper maintenance of the engine. This includes a
component related to emission control but not designed for emission
control, if it meets either of the following criteria:
(1) The component was in general use on similar engines before
January 1, 1990.
(2) Failure of the component would clearly degrade the engine's
performance enough that the operator would need to repair or replace
it.
Sec. 1039.130 What installation instructions must I give to equipment
manufacturers?
(a) If you sell an engine for someone else to install in a piece of
nonroad equipment, give the buyer of the engine written instructions
for installing it consistent with the requirements of this part.
Include all information necessary to ensure that an engine installed
this way will be in its certified configuration.
(b) Make sure these instructions have the following information:
(1) Include the heading: ``Emission-related installation
instructions''.
(2) State: ``Failing to follow these instructions when installing a
certified engine in a piece of nonroad equipment violates federal law
(40 CFR 1068.105(b)), subject to fines or other penalties as described
in the Clean Air Act.''.
(3) Describe the instructions needed to install the exhaust system
consistent with the requirements of Sec. 1039.205(s).
(4) [Reserved]
(5) Describe any limits on the range of applications needed to
ensure that the engine operates consistently with your application for
certification. For example, if your engines are certified only for
constant-speed operation under Sec. 1039.510(a)(1), tell equipment
manufacturers not to install the engines in variable-speed
applications.
(6) Describe any other instructions to make sure the installed
engine will operate according to design specifications in your
application for certification. This may include, for example,
instructions for installing aftertreatment devices when installing the
engines.
(7) State: ``If you install the engine in a way that makes the
engine's emission control information label hard to read during normal
engine maintenance, you must place a duplicate label on the vehicle, as
described in 40 CFR 1068.105.''.
(c) You do not need installation instructions for engines you
install in your own equipment.
Sec. 1039.135 How must I label and identify the engines I produce?
(a) Assign each engine a legible unique identification number and
permanently and affix or engrave it (including stamping) on the engine.
(b) At the time of manufacture, affix a permanent and legible label
identifying each engine. The label must be:
(1) Attached in one piece so it is not removable without being
destroyed or defaced.
(2) Durable and readable for the engine's entire life.
(3) Secured to a part of the engine needed for normal operation and
not normally requiring replacement.
(4) Written in block letters in English.
(c) The label must:
(1) Include the heading ``EMISSION CONTROL INFORMATION''.
(2) Include your full corporate name and trademark.
(3) Identify the emission-control system; your identifiers must use
names and abbreviations consistent with SAE J1930 (incorporated by
reference in Sec. 1039.810).
(4) List all requirements for fuel and lubricants.
(5) State the date of manufacture [MONTH and YEAR]; you may omit
the date of manufacture from the emission control information label if
you maintain a record of the engine manufacture dates and provide them
to us upon request.
(6) State: ``THIS ENGINE MEETS U.S. ENVIRONMENTAL PROTECTION AGENCY
REGULATIONS FOR [MODEL YEAR]
NONROAD COMPRESSION-IGNITION ENGINES.''.
(7) State the emission standards to which the engines are
certified, or the FELs if you certify the engine using the ABT
provisions of subpart H of this part.
(8) Include EPA's standardized designation for the engine family
(and subfamily, where applicable).
(9) State the engine's displacement (in liters) and maximum engine
power for the family. You may use the advertised power for the engine
instead of the maximum engine power for the family, as long as the
advertised power is within the power category for which the engine
family is certified.
(10) State the engine's useful life (see Sec. 1039.101(g)).
[[Page 28567]]
(11) List specifications and adjustments for engine tuneups; show
the proper position for the transmission during tuneup and state which
accessories should be operating.
(12) Describe other information on proper maintenance and use.
(13) If your engines are certified only for constant-speed
operation under Sec. 1039.510(a)(1), add to the engine label
``CONSTANT-SPEED ONLY'.
(14) You may add information to identify other emission standards
that the engine meets or does not meet (such as European standards).
(e) If there is not enough space for an emission control
information label with all the required information, you may omit the
information required in paragraphs (c)(3), (c)(4), and (c)(12) of this
section if you print it in the owner's manual instead.
(f) For diesel-fueled engines, label both the engine and equipment
to indicate the maximum allowable sulfur level of the fuel, as
described in your application for certification.
(1) The label should state either:
(i) ``ULTRA LOW-SULFUR NONROAD DIESEL FUEL OR ON-HIGHWAY DIESEL
FUEL ONLY (15 parts per million)''; or
(ii) ``LOW-SULFUR NONROAD DIESEL FUEL, ULTRA LOW-SULFUR NONROAD
DIESEL FUEL, OR ON-HIGHWAY DIESEL FUEL ONLY (500 ppm maximum)''.
(2) The equipment must be labeled near the fuel inlet. If you
manufacturer the engine, but not the equipment, provide the appropriate
label to the equipment manufacturer and notify the equipment
manufacturer in the installation instructions. Optionally, if the
equipment manufacturer chooses to install its own label, you are not
required to provide the label.
(g) You may ask us to approve modified labeling requirements in
this part if you show that you are unable to meet them. We will approve
your request if this is necessary and your alternate label is
consistent with the requirements of this part.
(h) If you obscure the engine label while installing the engine in
the equipment, you must place a duplicate label on the equipment. If
others install your engine in their equipment in a way that obscures
the engine label, we require them to add a duplicate label on the
equipment (see 40 CFR 1068.105); in that case, give them the number of
duplicate labels they request and keep the following records:
(1) The written request from the equipment manufacturer.
(2) The number of duplicate labels you send and the date you send
them.
Subpart C--Certifying Engine Families
Sec. 1039.201 What are the general requirements for obtaining a
certificate of conformity?
(a) You must send us a separate application for a certificate of
conformity for each engine family. A certificate of conformity is valid
from the date it is issued until December 31 of the model year for
which it is issued.
(b) The application must contain all of the information required by
this part and must not include false or incomplete statements or
information (see Sec. 1039.255).
(c) We may ask you to include less information than we specify in
this subpart, provided that all of the specified information is
maintained as required by Sec. 1039.250.
(d) You must use good engineering judgment for all decisions
related to your application (see 40 CFR 1068.5).
(e) An authorized representative of your company must approve and
sign the application.
(f) See Sec. 1039.255 for provisions describing how we will
process your application.
Sec. 1039.205 What must I include in my application?
This section specifies the information that must be in you
application, unless we ask you to include less information under Sec.
1039.201(c). We may require you to provide additional information to
evaluate your application.
(a) Describe the engine family's specifications and other basic
parameters of the engine's design and emission controls. List the types
of fuel on which your engines are designed to operate (for example,
diesel fuel). For each engine configuration, list the intended maximum
engine power and the associated production tolerances. If the
production tolerance for maximum engine power for any configuration
exceeds +/-5 percent, or if the distribution of actual maximum engine
power is asymmetrically distributed around the intended maximum engine
power, then you must demonstrate that you have taken reasonable steps
to minimize production variability with respect to maximum engine
power.
(b) Explain how the emission-control system operates. Describe in
detail all the system components for controlling exhaust emissions,
including auxiliary emission control devices (AECDs) and all fuel-
system components you will install on any production or test engine.
For this paragraph (b), treat as separate AECDs any devices that
modulate or activate differently from each other. Include all the
following:
(1) Give a general overview of the engine, the emission-control
strategies, and all AECDs.
(2) Describe each AECD's general purpose and function.
(3) Identify the parameters that each AECD senses (including
measuring, estimating, calculating, or empirically deriving the
values). Include equipment-based parameters and state whether you
simulate them during testing with the applicable procedures.
(4) Describe the purpose for sensing each parameter.
(5) Identify the location of each sensor the AECD uses.
(6) Identify the threshold values for the sensed parameters that
activate the AECD.
(7) Describe the parameters that the AECD modulates (controls) in
response to any sensed parameters, including the range of modulation
for each parameter, the relationship between the sensed parameters and
the controlled parameters and how the modulation achieves the AECD's
stated purpose. Use graphs and tables, as necessary.
(8) Describe each AECD's specific calibration details. This may be
in the form of data tables, graphical representations, or some other
description.
(9) Describe the hierarchy among the AECDs when multiple AECDs
sense or modulate the same parameter. Describe whether the strategies
interact in a comparative or additive manner and identify which AECD
takes precedence in responding, if applicable.
(10) Explain the extent to which the AECD is included in the
applicable test procedures specified in subpart F of this part.
(11) Do the following additional things for AECDs designed to
protect engines or equipment:
(i) Identify the engine and/or equipment design limits that make
protection necessary and describe any damage that would occur without
the AECD.
(ii) Describe how each sensed parameter relates to the protected
components' design limits or those operating conditions that cause the
need for protection.
(iii) Describe the relationship between the design limits/
parameters being protected and the parameters sensed or calculated as
surrogates for those design limits/parameters, if applicable.
(iv) Describe how the modulation by the AECD prevents engines and/
or equipment from exceeding design limits.
(v) Explain why it is necessary to estimate parameters instead of
measuring them directly and describe
[[Page 28568]]
how the AECD calculates the estimated value, if applicable.
(vi) Describe how you calibrate the AECD modulation to activate
only during conditions related to the stated need to protect components
and only as needed to sufficiently protect those components.
(c) [Reserved]
(d) Describe the engines you selected for testing and the reasons
for selecting them.
(e) Describe the test equipment and procedures that you used,
including any special or alternate test procedures you used (see Sec.
1039.501).
(f) Describe how you operated the test engine prior to testing,
including the duty cycle and the number of engine operating hours used
to stabilize emission levels. Explain why the method of service
accumulation was selected. Describe any scheduled maintenance you did.
(g) List the specifications of the test fuel to show that it falls
within the required ranges we specify in 40 CFR part 1065, subpart C.
(h) Identify the engine family's useful life.
(i) Propose maintenance and use instructions for the ultimate
purchaser of each new nonroad engine (see Sec. 1039.125).
(j) Propose emission-related installation instructions if you sell
engines for someone else to install in a piece of nonroad equipment
(see Sec. 1039.130).
(k) Propose an emission control information label.
(l) Identify the emission standards or FELs to which you are
certifying engines in the engine family. Identify the of specifications
of ambient operating regions that will apply for NTE testing under
Sec. 1039.101(d)(4) (i).
(m) Identify the engine family's deterioration factors and describe
how you developed them (see Sec. 1039.245). Present any emission test
data you used for this.
(n) Certify that you operated your test engines as described in the
application (including the test procedures, test parameters, and test
fuels) to show you meet the requirements of this part.
(o) Present emission data to show that you meet the applicable
emission standards. Present emission data for hydrocarbons (NMHC or
THCE, as applicable), NOX, and CO on a test engine to show
your engines meet the duty-cycle emission standards we specify in Sec.
1039.101. Show these figures before and after applying regeneration
factors and deterioration factors for each engine. Include test data
for each type of fuel from 40 CFR part 1065, subpart C, on which you
intend for engines in the engine family to operate. If we specify more
than one grade of any fuel type (for example, No. 1 and No. 2 diesel
fuel), you only need to submit test data for one grade, unless the
regulations of this part specify otherwise for your engine. Note that
Sec. 1039.235 allows you to submit an application in certain cases
without new emission data.
(p) Report all test results, including those from invalid tests or
from any other tests, whether or not they were conducted according to
the test procedures of subpart F of this part.
(q) Describe all adjustable operating parameters (see Sec.
1039.115(e)), including production tolerances. Include the following in
your description of each parameter:
(1) The nominal or recommended setting.
(2) The intended physically adjustable range.
(3) The limits or stops used to establish adjustable ranges.
(4) Information showing why the limits, stops, or other means of
inhibiting adjustment are effective in preventing adjustment of
parameters on in-use engines to settings outside the your intended
physically adjustable ranges.
(r) Provide the information to read and interpret all the
information broadcast by an engine's onboard computers and electronic
control modules. State that, upon request, you will give us any
hardware, software, or tools we would need to do this. If you broadcast
a surrogate parameter for torque values, you must provide us what we
need to convert these into torque units. You may reference any
appropriate publicly released standards that define conventions for
these messages and parameters. Format your information consistent with
publicly released standards.
(s) Confirm that nothing will prevent sampling of exhaust emissions
after engines are installed in equipment and placed in service. If this
cannot be done by simply adding a 20-cm extension to the exhaust pipe,
show how to sample exhaust emissions in a way that prevents diluting
the exhaust sample with ambient air.
(t) State whether your engines will be limited to constant-speed
applications. If your certification is limited to constant-speed
applications, describe how you will prevent use of these engines in
applications for which they are not certified.
(u) Certify that all the engines in the engine family comply with
the not-to-exceed emission standards we specify in subpart B of this
part for all normal operation and use when tested as specified in Sec.
1039.515. Describe in detail any testing, engineering analysis, or
other information on which you base this statement.
(v) Unconditionally certify that all the engines in the engine
family comply with the requirements of this part, other referenced
parts of the CFR, and the Clean Air Act.
(w) Include estimates of U.S.-directed production volumes.
(x) Include the information required by other subparts of this
part. For example, include the information required by Sec. 1039.730,
if you participate in the ABT program.
Sec. 1039.210 May I get preliminary approval before I complete my
application?
If you send us information before you finish the application, we
will review it and make any appropriate determinations, especially for
questions related to engine family definitions, deterioration factors,
service accumulation testing, and maintenance. Decisions made under
this section are considered to be preliminary approval, subject to
final review and approval. If you request preliminary approval related
to the upcoming model year or the model year after that, we will make
best-efforts to make the appropriate determinations as soon as
practicable. We will generally not provide preliminary approval related
to a future model year more than two years ahead of time.
Sec. 1039.220 How do I amend the maintenance instructions in my
application?
You may amend your emission-related maintenance instructions after
you submit your application for certification, as long as the amended
instructions remain consistent with maintenance you performed on test
engines and conform to the requirements of this part. You must send the
Designated Compliance Officer a request to amend your application for
certification or certificate of conformity for an engine family if you
want to change the emission-related maintenance instructions in a way
that could affect emissions. In your request, describe the proposed
changes to the maintenance instructions. We will disapprove your
request if we determine that the amended instructions are inconsistent
with maintenance you performed on test engines.
(a) If you are decreasing the specified level of maintenance, you
may distribute the new maintenance instructions to your customers 30
days
[[Page 28569]]
after we receive your request, unless we disapprove your request. We
may approve a shorter time or waive this requirement.
(b) If your requested change would not decrease the specified level
of maintenance, you may distribute the new maintenance instructions
anytime after you send your request. For example, this paragraph (b)
would cover adding instructions to increase the frequency of a
maintenance step for engines in severe-duty applications.
(c) You do not need to request approval if you are only making
minor corrections (such as correcting typographical mistakes),
clarifying your maintenance instructions, or changing instructions for
maintenance unrelated to emission control.
Sec. 1039.225 How do I amend my application or certificate to include
new or modified engines?
Before we issue you a certificate of conformity, you may amend your
application to include new or modified engine configurations, subject
to the provisions of this section. After we have issued your
certificate of conformity, you may ask to amend your certificate to
include new or modified engine configurations, subject to the
provisions of this section. You must amend your application or
certificate if any changes occur with respect to any information
included in your application.
(a) You must amend your application or certificate before you take
either of the following actions:
(1) Add an engine (that is, an additional engine configuration) to
an engine family. In this case, the engine added must be consistent
with other engines in the engine family, with respect to the criteria
listed in Sec. 1039.230.
(2) Make a change that may affect emissions or an emission-related
part to an engine already included in an engine family. This includes
production and design changes. A change is deemed to affect emissions
if it will affect emissions at any time during the engine's lifetime.
(b) Send the Designated Compliance Officer a request to amend the
application or certificate for an engine family. In your request, do
all of the following:
(1) Describe in detail the addition or change in the engine model
or configuration you intend to make.
(2) Include engineering evaluations or data showing that the
amended engine family complies with all applicable emission standards.
You may do this by showing that the original test engine is still
appropriate with respect to showing compliance of the amended family
with all applicable emission standards.
(3) If the original test engine for the engine family is not
appropriate to show compliance for the new or modified nonroad engine,
include new test data showing that the new or modified nonroad engine
meets the requirements of this part.
(c) We may ask for more test data or engineering evaluations. You
must give us these within 30 days after we request them.
(d) For engine families that are already covered by a certificate
of conformity, we will determine whether the certificate of conformity
would cover your new or modified nonroad engine. We will send you a
written explanation of our decision. You may ask for a hearing if we
deny your request (see Sec. 1039.820).
(e) For engine families that are already covered by a certificate
of conformity, you may start producing the new or modified nonroad
engine anytime after you send us your request to amend your
certificate, prior to our decision under paragraph (d) of this section.
If we determine that the affected engines do not meet applicable
requirements, we will notify you to cease production of the engines and
to recall the engines at no expense to the owner. Choosing to produce
engines under this paragraph (e) is deemed to be consent to recall all
engines that we determine do not meet applicable emission standards or
other requirements and to remedy the nonconformity at no expense to the
owner. If you do not provide within 30 days information required under
paragraph (c) of this section, you must stop producing the new or
modified engines.
Sec. 1039.230 How do I select engine families?
(a) Divide your product line into families of engines that are
expected to have similar emission characteristics. Your engine family
is limited to a single model year.
(b) Group engines in the same engine family if they are the same in
all of the following aspects:
(1) The combustion cycle and fuel.
(2) The cooling system (water-cooled vs. air-cooled).
(3) Method of air aspiration.
(4) Method of exhaust aftertreatment (for example, catalytic
converter or particulate trap).
(5) Combustion chamber design.
(6) Bore and stroke.
(7) Number of cylinders, (engines with aftertreatment devices
only).
(8) Cylinder arrangement (engines with aftertreatment devices
only).
(9) Method of control for engine operation other than governing,
(i.e., mechanical or electronic).
(10) Power category.
(c) You may subdivide a group of engines that is identical under
paragraph (b) of this section into different engine families, if you
show the expected emission characteristics are different during the
useful life.
(d) You may group engines that are not identical with respect to
the things listed in paragraph (b) of this section in the same engine
family if you show that their emission characteristics during the
useful life will be similar.
Sec. 1039.235 What emission testing must I perform for my application
for a certificate of conformity?
This section describes the emission testing you must perform to
show compliance with the emission standards in Sec. 1039.101 (a) and
(b). See Sec. 1039.205(u) regarding emission testing related to the
NTE emission standards. See 40 CFR part 1065, subpart E, regarding
service accumulation before emission testing
(a) Test your emission-data engines using the procedures and
equipment specified in subpart F of this part.
(b) Select from each engine family an engine for each fuel type.
Select the engine configuration with the highest fueling rate
(primarily at the point of maximum torque), unless good engineering
judgment indicates that a different configuration is more likely to
exceed (or has emissions nearer to) an applicable emission standard. In
making this selection, consider all factors expected to affect emission
performance and compliance with the standards, including emission
levels of all exhaust constituents, especially NOX and PM.
Select the emission data test engine or engines from this
configuration.
(c) We may choose to measure emissions from any of your test
engines or other engines from the engine family.
(1) If we do this, you must provide the test engine at the location
we select. We may decide to do the testing at your plant or any other
facility. If we choose to do the testing at your plant, you must
schedule it as soon as possible and make available the instruments and
equipment we need.
(2) If we measure emissions on one of your test engines, the
results of that testing become the official emission results for the
engine. Unless we later invalidate this data, we may decide not to
consider your data in determining if your engine family meets the
applicable emission standards.
(3) Before we test one of your engines, we may set its adjustable
parameters to
[[Page 28570]]
any point within the physically adjustable ranges (see Sec.
1039.115(e)).
(4) Calibrate the test engine within normal production tolerances
for anything we do not consider an adjustable parameter (see Sec.
1039.205(q)).
(d) You may ask to use emission data for an equivalent engine
family from previous model years instead of doing new tests, but only
if the data show that the test engine would meet all the requirements
applicable for the engine family covered by the application for
certification. For the purpose of this paragraph, equivalent engine
families are engine families that differ only with respect to model
year.
(e) We may require you to test a second engine in addition to the
engine tested under paragraph (b) of this section.
(f) If you use an alternate testing procedure under 40 CFR 1065.10
and later testing shows that such testing does not produce results that
are equivalent to the procedures specified in subpart F of this part,
we may reject data you generated using the alternate procedure.
(g) You are not required to provide smoke emission data for engines
having a certification PM emission level less than 0.07 g/kW-hr or a PM
FEL less than 0.07 g/kW-hr.
Sec. 1039.240 How do I demonstrate that my engine family complies
with exhaust emission standards?
(a) For purposes of certification, your engine family is considered
in compliance with the applicable numerical emission standards in Sec.
1039.101 (a) and (b) if all emission-data engines representing that
family have test results showing deteriorated emission levels at or
below these standards. (Note: if you participate in the ABT program in
subpart H of this part, your FELs are considered to be applicable
emission standards with which you must comply.)
(b) Your engine family is deemed to not comply if any emission-data
engine representing that family has test results showing a deteriorated
emission level above any applicable emission standard from Sec.
1039.101 for any pollutant.
(c) To compare emission levels from the test engine with the
applicable emission standards, apply deterioration factors to the
measured emission levels for each pollutant. Section 1039.245 specifies
how to test your engine to develop deterioration factors that represent
the deterioration expected in emissions over your engines' full useful
life. Your deterioration factors must be consistent with emission
increases observed from any in-use testing with similar engines. Small-
volume engine manufacturers may use assigned deterioration factors that
we establish. Apply the deterioration factors as follows:
(1) If you use aftertreatment technology (other than particulate
traps) to control emissions of a pollutant, the deterioration factor
for that pollutant is the ratio of exhaust emissions at the end of
useful life to exhaust emissions at the low-hour test point. Adjust the
official emission results for each tested engine at the selected test
point by multiplying the measured emissions by the deterioration
factor. If the factor is less than one, use one. This provision does
not apply for smoke emissions. Multiplicative DFs must be specified to
one more significant figure than the applicable standard.
(2) If you use particulate traps or if you use no aftertreatment
technology to control emissions of a pollutant, the deterioration
factor for that pollutant is the difference between exhaust emissions
at the end of useful life and exhaust emissions at the low-hour test
point. Adjust the official emission results for each tested engine at
the selected test point by adding the factor to the measured emissions.
If the factor is less than zero, use zero. Deterioration factors for
smoke emission are always additive. Additive DFs must be specified to
one more decimal place than the applicable standard.
(3) If your engine vents crankcase emissions to the exhaust or to
the atmosphere, you must account for crankcase emission deterioration,
using good engineering judgment. You may use separate factors for
crankcase emissions (either multiplicative or additive) or include the
effects in combined exhaust and crankcase factors.
(d) After adjusting the emission levels for deterioration, round
them to the same number of decimal places as the emission standard.
Compare the rounded emission levels to the emission standard for each
test engine.
(e) For engines subject to NMHC standards, you may base compliance
on total hydrocarbon (THC) emissions. Indicate in your application for
certification if you are using this option. If you do, measure THC
emissions and calculate NMHC emissions as 98 percent of THC emissions:
NMHC = (0.98) x (THC).
Sec. 1039.245 How do I determine deterioration factors from exhaust
durability testing?
Determine deterioration factors (DFs) to show that your engines
will meet emission standards throughout the useful life, as described
in Sec. Sec. 1039.101 and 1039.240. This section describes how to
determine deterioration factors, either with an engineering analysis,
with pre-existing test data, or with new emission measurements. If you
are required to perform durability testing, see Sec. 1039.220 for
limitations on the maintenance that you may perform on your test
engine. You must determine a separate DF for each pollutant.
(a) You may ask us to approve deterioration factors for an engine
family with established technology based on engineering analysis
instead of testing. Established technology refers to engines for which
the applicable NMHC+NOX standard or FEL is greater than the
Tier 3 NMHC+NOX standard described in 40 CFR Sec. 89.112,
unless the engines use exhaust-gas recirculation or aftertreatment.
Established technology also refers to engines for which the applicable
NMHC+NOX standard or FEL is less than or equal to the Tier 3
NMHC+NOX standard if you can show that the engines do not
have technologies other than those generally used on engines meeting
NMHC+NOX standards less stringent than the Tier 3 standards.
(b) You may ask us to approve deterioration factors for an engine
family based on emission measurements from similar highway or nonroad
engines if you have already given us this data for certifying the other
engines in the same or previous model years. Use good engineering
judgment to decide whether the two engines are similar. We will approve
your request if you show us that the emission measurements from other
engines reasonably represent in-use deterioration for the nonroad
engine family.
(c) If you are unable to determine deterioration factors for an
engine family under paragraph (a) or (b) of this section, select
engines, subsystems, or components for testing. Determine deterioration
factors based on service accumulation and related testing to represent
the deterioration expected from in-use engines over the full useful
life. You must measure emissions from the test engine at least three
times with evenly spaced intervals of service accumulation. You may use
extrapolation to determine deterioration factors once you have
established a trend of increasing emissions with age for each
pollutant. You may use an engine installed in nonroad equipment to
accumulate service hours instead of running the engine only in the
laboratory. Use good engineering judgment for all aspects of the effort
to establish deterioration factors under this paragraph (c).
[[Page 28571]]
(d) Include the following information in your application for
certification (see Sec. 1039.205(n)):
(1) If you use test data from a different engine family, explain
why this is appropriate and include all the emission measurements on
which you base the deterioration factor.
(2) If you determine your deterioration factors based on
engineering analysis, explain why this is appropriate and include a
statement that all data, analyses, evaluations, and other information
you used are available for our review upon request.
(3) If you conduct testing to determine deterioration factors,
describe the form and extent of service accumulation, including a
rationale for selecting the service-accumulation period and the method
you use to accumulate hours.
Sec. 1039.250 What records must I keep and what reports must I send
to EPA?
(a) Within 30 days after the end of the model year, send the
Designated Compliance Officer a report describing how many engines you
produced in each engine family during the model year. You must report
the total number of engines you produced by maximum brake power, total
displacement, and the type of fuel system. We may also ask you to give
us production figures for each assembly plant if you produce engines at
more than one plant. If you produced exempted engines under the
provisions of Sec. 1039.625, include in your report the number of
exempted engines you produced for each engine model and identify the
buyer or shipping destination for each exempted engine.
(b) Organize and maintain the following records:
(1) A copy of all applications and any summary information you sent
us.
(2) Any of the information we specify in Sec. 1039.205 that you
were not required to include in your application.
(3) A detailed history of each emission-data engine. For each
engine, describe all of the following:
(i) The test engine's construction, including its origin and
buildup, steps you took to ensure that it represents production
engines, any components you built specially for it, and all emission-
related components.
(ii) How you accumulated engine operating hours (service
accumulation), including the dates and the number of hours accumulated.
(iii) All maintenance, including modifications, parts changes, and
other service, and the dates and reasons for the maintenance.
(iv) All your emission tests, including documentation on routine
and standard tests, as specified in part 40 CFR part 1065, and the date
and purpose of each test.
(v) All tests to diagnose engine or emission-control performance,
giving the date and time of each and the reasons for the test.
(vi) Any other significant events.
(4) If we ask, you must give us projected production figures for an
engine family. We may ask you to divide your production figures by
maximum brake power, total displacement, or assembly plant.
(5) Emission test results from durability testing, and the
information required by Sec. 1039.245(d).
(6) Keep a list of engine identification numbers for all the
engines you produce under each certificate of conformity.
(b) Keep data from routine emission tests (such as test cell
temperatures and relative humidity readings) for one year after we
issue the associated certificate of conformity. Keep all other
information specified in paragraph (a) of this section for eight years
after we issue your certificate.
(c) Store these records in any format and on any media, as long as
you can promptly send us organized, written records in English if we
ask for them. You must keep these records readily available. We may
review them at any time.
(d) Send us copies of any engine maintenance instructions or
explanations if we ask for them.
Sec. 1039.255 What decisions may EPA make regarding my certificate of
conformity?
(a) If we determine your application is complete and shows that the
engine family meets all the requirements of this part and the Act, we
will issue a certificate of conformity for your engine family for that
model year. We may make the approval subject to additional conditions.
(b) We may deny your application for certification if we determine
that your engine family fails to comply with emission standards or
other requirements of this part or the Act. Our decision may be based
on a review of all information available to us. If we deny your
application, we will explain why in writing.
(c) In addition, we may deny your application or suspend or revoke
your certificate if you do any of the following:
(1) Refuse to comply with any testing or reporting requirements.
(2) Submit false or incomplete information (paragraph (e) of this
section applies if this is fraudulent).
(3) Render inaccurate any test data.
(4) Deny us from completing authorized activities despite our
presenting a warrant or court order (see 40 CFR 1068.20). This includes
a failure to provide reasonable assistance.
(5) Produce engines for importation into the United States at a
location where local law prohibits us from carrying out authorized
activities.
(6) Fail to supply requested information or amend your application
to include all engines being produced.
(7) Take any action that otherwise circumvents the intent of the
Act or this part.
(d) We may void your certificate if you do not keep the records we
require or do not give us information when we ask for it.
(e) We may void your certificate if we find that you intentionally
submitted false or incomplete information.
(f) If we deny your application or suspend, revoke, or void your
certificate, you may ask for a hearing (see Sec. 1039.820).
Subpart D--[Reserved]
Subpart E--In-use Testing
Sec. 1039.401 General Provisions.
We may conduct in-use testing of any engine subject to the
standards of this part. However, we will limit recall testing to the
first 75 percent of each engine's useful life as specified in Sec.
1039.101(g).
Subpart F--Test Procedures
Sec. 1039.501 How do I run a valid emission test?
(a) Use the equipment and procedures for compression-ignition
engines in 40 CFR part 1065 to determine whether engines meet the duty-
cycle emission standards in Sec. 1039.101(a) and (b). Measure the
emissions of CO2 and all the pollutants we regulate in Sec.
1039.101 using the applicable sampling procedures in 40 CFR part 1065.
Use the applicable duty cycles specified in Sec. Sec. 1039.505 and
1039.510.
(b) Section 1039.515 describes the supplemental procedures for
evaluating whether engines meet the not-to-exceed emission standards in
Sec. 1039.101(c).
(c) Use the equipment and procedures in ISO 8178-9 for evaluating
whether engines meet the smoke standards in Sec. 1039.105.
(d) Use the fuels specified in 40 CFR part 1065, subpart C, to
conduct valid tests, except as noted in Sec. 1039.515.
(1) Use these test fuels or any commercially available fuel for
service accumulation.
(2) For diesel-fueled engines, choose one of the diesel fuels in 40
CFR part 1065, subpart C, for emission testing. Identify this test fuel
in your application
[[Page 28572]]
for certification and ensure that the emission control information
label is consistent with your selection of the test fuel (see Sec.
1039.135(f)). For example, do not test with 15 ppm sulfur fuel if you
intend to label your engines to allow 500 ppm sulfur fuel.
(e) You may use special or alternate procedures to the extent we
allow them under 40 CFR 1065.10.
(f) This subpart part is addressed to you as a manufacturer, but it
applies equally to anyone who does testing for you, and to us when we
conduct testing to determine if your engines meet emission standards.
Sec. 1039.505 Which duty cycles do I use for steady-state testing?
(a) Measure emissions by testing the engine on a dynamometer with
one of the following steady-state duty cycles to determine whether it
meets the steady-state emission standards in Sec. 1039.101(b):
(1) Use the 5-mode duty cycle described in Appendix I of this part
for engines that you will certify only for constant-speed operation.
(2) [Reserved]
(3) Use the 6-mode duty cycle described in Appendix III of this
part for engines with maximum power below 19 kW whose certification
will not be limited to constant-speed applications.
(4) Use the 8-mode duty cycle described in Appendix IV of this part
for engines with maximum power at or above 19 kW whose certification
will not be limited to constant-speed applications.
(b) During idle mode, operate the engine with the following
parameters:
(1) Hold the speed within your specifications.
(2) Set the engine to operate at its minimum fueling rate.
(3) Keep engine torque under 5 percent of maximum test torque.
(c) For full-load operating modes, operate the engine at its
maximum fueling rate.
(d) See 40 CFR part 1065 for detailed specifications of tolerances
and calculations.
(e) In the normal test sequence described in 40 CFR part 1065,
subpart F, steady-state testing generally follows the transient test.
For those cases where we do not require transient testing, perform the
steady-state test after an appropriate warm-up period, consistent with
good engineering judgment.
Sec. 1039.510 Which duty cycles do I use for transient testing?
(a) Measure emissions by testing the engine on a dynamometer with
one of the following transient duty cycles to determine whether it
meets the transient emission standards in Sec. 1039.101(a):
(1) If you certify an engine family for constant-speed operation
only, use the transient duty-cycle described in Appendix V of this
part.
(2) For all other engines, use the transient duty-cycle described
in Appendix VI of this part.
(b) The transient test sequence consists of an initial run through
the transient sequence from a cold start, 20 minutes with no engine
operation, then a final run through the same transient sequence. Start
sampling emissions immediately after you start the engine. Combine the
results from these two test runs by applying a weighting factor of 10
percent to the cold-start measurement and 90 percent to the hot-start
measurement.
(c) Conduct repeat tests and cool the engine down between tests as
described in 40 CFR 86.1335-90 and 86.1336-84(e).
Sec. 1039.515 What are the test procedures related to not-to-exceed
standards?
Use the test procedures described in 40 CFR 86.1370-2007 to
determine whether the engine meets the not-to-exceed emission standards
in Sec. 1039.101(c).
Sec. 1039.520 What testing must I perform to establish deterioration
factors?
Section 1039.245 describes the method for using test data or
engineering analysis to establish deterioration factors for an engine
family.
Sec. 1039.525 How do I adjust emission levels to account for
infrequently regenerating aftertreatment devices?
This section describes how to adjust emission results from engines
using aftertreatment technology with infrequent regeneration events.
For this section, ``regeneration'' means an intended event during which
emission levels change while the system restores aftertreatment
performance. For example, exhaust gas temperatures may increase
temporarily to remove sulfur from adsorbers or to oxidize accumulated
particulate matter in a trap. For this section, ``infrequent'' refers
to regeneration events that are expected to occur less than once over
the applicable transient duty cycle.
(a) Developing adjustment factors. Develop an upward adjustment
factor and a downward adjustment factor for each pollutant based on
measured emission data and observed regeneration frequency. Adjustment
factors should generally apply to an entire engine family, but you may
develop separate adjustment factors for different engine configurations
within an engine family. You may use carryover or carry-across data to
establish adjustment factors for an engine family, as described in
Sec. 1039.235(d), consistent with good engineering judgment. All
adjustment factors for regeneration are additive. You may use either of
the following different approaches for engines that use aftertreatment
with infrequent regeneration events:
(1) You may disregard this section if regeneration does not
significantly effect emission levels for an engine family (or
configuration) or if it is not practical to identify when regeneration
occurs. If you do not use adjustment factors under this section, your
engines must meet emission standards for all testing, without regard to
regeneration.
(2) If your engines use aftertreatment technology with extremely
infrequent regeneration and you are unable to apply the provisions of
this section, you may ask us to approve an alternate methodology to
account for regeneration events.
(b) Calculating average adjustment factors. Calculate the average
adjustment factor (EFA) based on the following equation:
EFA = (F)(EFH) + (1-F)(EFL)
Where:
F = the frequency of the regeneration event in terms of the fraction of
tests during which the regeneration occurs.
EFH = measured emissions from a test in which the
regeneration occurs.
EFL = measured emissions from a test in which the
regeneration does not occur.
(c) Applying adjustment factors. Apply adjustment factors based on
whether regeneration occurs during the test run. You must be able to
identify regeneration in a way that is readily apparent during all
testing.
(1) If regeneration does not occur during a test run, add an upward
adjustment factor to the measured emission rate. Determine the upward
adjustment factor (UAF) using the following equation:
UAF = EFA - EFL
(2) If regeneration occurs during a test run, subtract a downward
adjustment factor from the measured emission rate. Determine the
downward adjustment factor (DAF) using the following equation:
[GRAPHIC]
[TIFF OMITTED]
TP23MY03.014
(d) Sample calculation. If EFL is 0.10 g/kW-hr,
EFH is 0.50 g/kW-hr, and F is 0.1 (the regeneration occurs
once for each ten tests), then:
[[Page 28573]]
[GRAPHIC]
[TIFF OMITTED]
TP23MY03.015
Subpart G--Special Compliance Provisions
Sec. 1039.601 What compliance provisions apply to these engines?
Engine and equipment manufacturers, as well as owners, operators,
and rebuilders of these engines, and all other persons, must observe
the provisions of this part, the requirements and prohibitions in 40
CFR part 1068, and the requirements of the Act.
Sec. 1039.605 What provisions apply to engines already certified
under the motor-vehicle program?
(a) If you are an engine manufacturer, this section allows you to
certify nonroad engines to the requirements that apply under 40 CFR
parts 85 and 86 instead of certifying them under the requirements of
this part 1039. If you install engines in nonroad equipment, we will
consider you an engine manufacturer if you modify the engine in any of
the ways described in paragraph (c)(2) of this section; note that such
engine modifications prevent you from using the provisions of this
section. We consider engines you produce under this section to be
exempt from the requirements of this part. See Sec. 1039.610 for
similar provisions that apply to engines certified to chassis-based
standards for motor vehicles.
(b) The only requirements or prohibitions from this part that apply
to an engine that is exempt under this section are in this section. The
engine exempted under this section must meet all applicable
requirements from 40 CFR parts 85 and 86. This applies to engine
manufacturers, equipment manufacturers who use these engines, and all
other persons as if these engines were used in a motor vehicle.
(c) If you meet all the following criteria and requirements
regarding your new nonroad engine, it is exempt from the standards in
this part:
(1) Your engine must be covered by a valid certificate of
conformity under 40 CFR part 86.
(2) You must not make any changes to the certified engine that we
could reasonably expect to increase its exhaust emissions. For example,
if you make any of the following changes to one of these engines, you
do not qualify for this exemption:
(i) Change any fuel system parameters from the certified
configuration.
(ii) Change any other emission-related components.
(iii) Modify or design the engine cooling system so that
temperatures or heat rejection rates are outside the original engine
manufacturer's specified ranges.
(3) You must demonstrate that fewer than 50 percent of the engine
model's total sales, from all companies, are used in nonroad
applications.
(4) The engine must have the label we require under 40 CFR part 86.
(5) You must add a permanent supplemental label to the engine in a
position where it will remain clearly visible after installation in the
equipment. In your engine's emission control information label, do the
following:
(i) Include the heading: ``Nonroad Engine Emission Control
Information''.
(ii) Include your full corporate name and trademark.
(iii) State: ``THIS ENGINE WAS ADAPTED FOR NONROAD USE WITHOUT
AFFECTING ITS EMISSION CONTROLS. THE EMISSION-CONTROL SYSTEM DEPENDS ON
THE USE OF FUEL MEETING SPECIFICATIONS THAT APPLY FOR MOTOR-VEHICLE
APPLICATIONS. OPERATING THE ENGINE ON OTHER FUELS MAY BE A VIOLATION OF
FEDERAL LAW.''.
(iv) State the date you finished modifying the engine (month and
year), if applicable.
(6) The original and supplemental labels must be readily visible
after the engine is installed in the equipment or, if the equipment
obscures the engine's emission control information label, the equipment
manufacturer must attach duplicate labels, as described in 40 CFR
1068.105.
(7) Send the Designated Officer a signed letter by the end of each
calendar year (or less often if we tell you) with all the following
information:
(i) Identify your full corporate name, address, and telephone
number.
(ii) List the engine models you expect to produce under this
exemption in the coming year.
(iii) State: ``We produce each listed engine model for nonroad
application without making any changes that could increase its
certified emission levels, as described in 40 CFR 1039.605.''.
(d) If your engines do not meet the criteria listed in paragraph
(c) of this section, they will be subject to the standards and
prohibitions of this part. Producing these engines without a valid
exemption or certificate of conformity would violate the prohibitions
in 40 CFR 1068.101.
(e) If you are the original engine manufacturer of both the highway
and nonroad versions of an exempted engine, you must send us emission
test data on the applicable nonroad duty cycle(s). You may include the
data in your application for certification or in your letter requesting
the exemption.
(f) If you are the original manufacturer of an exempted engine that
is modified by another company under this exemption, we may require you
to send us emission test data on the applicable nonroad duty cycle(s).
If we ask for this data, we will allow a reasonable amount of time to
collect it. You are responsible for emission-related compliance under
40 CFR parts 85 and 86 for these engines, unless another company
becomes the engine manufacturer for these engines (see paragraph (a) of
this section).
(g) If you are not an engine manufacturer, you may produce nonroad
equipment from motor-vehicle engines under this section as long as the
engine has the label we specify in paragraph (c)(5) of this section and
you do not modify the engine in any way that may affect its emission
control. Add the fueling label we specify in Sec. 1039.135(f)(1)(i).
Sec. 1039.610 What provisions apply to vehicles already certified
under the motor-vehicle program?
(a) If you are an engine manufacturer, this section allows you to
certify nonroad vehicles to the requirements that apply under 40 CFR
parts 85 and 85 instead of certifying them under the requirements of
this part 1039. We consider engines and vehicles you produce under this
section to be exempt from the requirements of this part. See Sec.
1039.605 for similar provisions that apply to motor-vehicle engines
certified to engine-based standards.
[[Page 28574]]
(b) The only requirements or prohibitions from this part that apply
to an engine that is exempt under this section are in this section. The
vehicle and the engine exempted under this section must meet all
applicable requirements from 40 CFR parts 85 and 86. This applies to
engine manufacturers, equipment manufacturers who use these engines,
and all other persons as if these engines were used in a motor vehicle.
(c) If you meet all the following criteria and requirements
regarding your new nonroad vehicle, it is exempt from the standards in
this part:
(1) Your vehicle must be covered by a valid certificate of
conformity under 40 CFR part 86.
(2) You must not make any changes to the certified engine or
vehicle that we could reasonably expect to increase its exhaust
emissions. For example, if you make any of the following changes, you
do not qualify for this exemption:
(i) Change any fuel system parameters from the certified
configuration.
(ii) Change any other emission-related components.
(iii) Modify or design the engine cooling system so that
temperatures or heat rejection rates are outside the original engine
manufacturer's specified ranges.
(3) You must demonstrate that fewer than 50 percent of the engine
model's total sales, from all companies, are used in nonroad
applications.
(4) The vehicle must have the label we require under 40 CFR part
86.
(5) You must add a permanent supplemental label to the engine in a
position where it will remain clearly visible after installation in the
equipment. In your engine's emission control information label, do the
following:
(i) Include the heading: ``Nonroad Engine Emission Control
Information''.
(ii) Include your full corporate name and trademark.
(iii) STATE: ``THIS ENGINE WAS ADAPTED FOR NONROAD USE WITHOUT
AFFECTING ITS EMISSION CONTROLS. THE EMISSION-CONTROL SYSTEM DEPENDS ON
THE USE OF FUEL MEETING SPECIFICATIONS THAT APPLY FOR MOTOR-VEHICLE
APPLICATIONS. OPERATING THE ENGINE ON OTHER FUELS MAY BE A VIOLATION OF
FEDERAL LAW.''.
(iv) State the date you finished modifying the engine (month and
year), if applicable.
(6) The original and supplemental labels must be readily visible
after the engine is installed in the equipment or, if the equipment
obscures the engine's emission control information label, the equipment
manufacturer must attach duplicate labels, as described in 40 CFR
1068.105.
(7) Send the Designated Officer a signed letter by the end of each
calendar year (or less often if we tell you) with all the following
information:
(i) Identify your full corporate name, address, and telephone
number.
(ii) List the vehicle models you expect to produce under this
exemption in the coming year.
(iii) State: ``We produce each listed engine or vehicle model for
nonroad application without making any changes that could increase its
certified emission levels, as described in 40 CFR 1039.610.''.
(d) If your engines do not meet the criteria listed in paragraph
(c) of this section, they will be subject to the standards and
prohibitions of this part. Producing these engines without a valid
exemption or certificate of conformity would violate the prohibitions
in 40 CFR 1068.101.
(e) If you are the original engine manufacturer of both the highway
and nonroad versions of an exempted engine, you must send us emission
test data on the applicable nonroad duty cycle(s). You may include the
data in your application for certification or in your letter requesting
the exemption.
(f) If you are the original manufacturer of an exempted engine that
is modified by another company under this exemption, we may require you
to send us emission test data on the applicable nonroad duty cycle(s).
If we ask for this data, we will allow a reasonable amount of time to
collect it. You are responsible for emission-related compliance under
40 CFR parts 85 and 86 for these engines, unless another company
becomes the engine manufacturer for these engines (see paragraph (a) of
this section).
(g) If you are not an engine manufacturer, you may produce nonroad
equipment from motor vehicles under this section as long as the engine
has the label we specify in paragraph (c)(5) of this section and you do
not modify the engine in any way that may affect its emission control.
Sec. 1039.615 What special provisions apply to engines using
noncommercial fuels?
In Sec. 1039.115(e), we generally require that engines meet
emission standards for any adjustment within the full range of any
adjustable parameters. For engines that use noncommercial fuels
significantly different than the specified test fuel of the same type,
you may ask us to use the parameter-adjustment provisions of this
section instead of those in Sec. 1039.115(e). Engines certified under
this section must be in a separate engine family.
(a) If we approve your request, you may do the following:
(1) Certify the engine using the specified test fuel.
(2) Produce the engine without limits or stops to keep the engine
adjusted within the certified range.
(3) Specify in-use adjustments different than the adjustable
settings appropriate for the certified test fuel, consistent with the
provisions of paragraph (b)(1) of this section.
(b) To produce engines under this section, you must do the
following:
(1) Specify in-use adjustments needed so the engine's level of
emission control is equivalent to that from the certified
configuration.
(2) Add the following information to the emission control
information label specified in Sec. 1039.135:
(i) Include instructions describing how to adjust the engine to
operate in a way that maintains the effectiveness of the emission-
control system.
(ii) STATE: ``THIS ENGINE IS CERTIFIED TO OPERATE IN APPLICATIONS
USING NONCOMMERCIAL FUEL. mALADJUSTMENT OF THE ENGINE IS A VIOLATION OF
FEDERAL LAW SUBJECT TO CIVIL PENALTY.''.
(3) Keep records to document the destinations and quantities of
engines produced under this section.
Sec. 1039.620 What are the provisions for exempting engines used
solely for competition?
(a) As an equipment manufacturer, you may use an uncertified engine
if your vehicle or equipment will be used solely for competition.
(b) The definition of nonroad engine in 40 CFR 1068.30 excludes
engines used solely for competition. These engines are not required to
comply with this part, but 40 CFR 1068.101 restricts the use of
competition engines for non-competition purposes and this section
requires that you label these engines.
(c) As an engine manufacturer, your engine is exempt without a
request if you have a written request for an exempted engine from the
equipment manufacturer, showing the basis for believing that the
equipment will be used solely for competition.
(d) We consider a vehicle or piece of equipment to be one that will
be used solely for competition if it has features that are not easily
removed that would make its use other than in competition unsafe,
impractical, or highly unlikely.
(e) We may discontinue your exemption if we find that engines
[[Page 28575]]
exempted under this section are not used solely for competition.
(f) You must permanently label engines exempted under this section
to clearly indicate that they are to be used solely for competition.
Failure to properly label an engine will void its exemption.
Sec. 1039.625 What requirements apply under the program for
equipment-manufacturer flexibility?
The provisions of this section allow equipment manufacturers to
produce equipment with engines certified to previous tiers of emission
standards after the Tier 4 emission standards begin to apply. To be
eligible to use these provisions, you must follow all the instructions
in this section. See 40 CFR 89.102(d) and (e) for provisions that apply
to equipment made while Tier 1, Tier 2, or Tier 3 standards apply. See
Sec. 1039.626 for requirements that apply specifically to equipment
manufacturers using the flexibility provisions of this section for
equipment produced outside the United States.
(a) General. We may allow you to introduce into commerce in the
United States limited numbers of nonroad equipment with exempted
engines under this section. These provisions are available up to seven
years after Tier 4 emission standards begin for each engine-power
category, as shown in Table 1 of this section. Consider all U.S.-
directed equipment sales, including those from any parent or subsidiary
companies, in showing that you meet the requirements of this section.
You may use the exemptions in this section only if you have the primary
responsibility for designing and manufacturing the equipment and
install the engine in the equipment.
Table 1 of Sec. 1039.625
------------------------------------------------------------------------
Engine power Model year
------------------------------------------------------------------------
kW < 19................................................. 2008
19 <= kW < 56........................................... 2013
56 <= kW < 130.......................................... 2012
130 <= kW < 560......................................... 2011
kW £ 560...................................... 2011
------------------------------------------------------------------------
--(b) Allowances. The following provisions, which apply separately
to each engine-power category used to define emission standards in
Sec. 1039.101, describe how many exempted engines you may produce
under this section:
(1) Percent-of-production allowances. You may produce a certain
number of units with exempted engines based on a percentage of your
total sales within an engine-power category. The sum of these
percentages within an engine-power category during the seven-year
period specified in paragraph (a) of this section may not exceed 80
percent of your U.S.-directed production, except as allowed under
paragraph (b)(2) of this section.
(2) Small-volume allowances. You may produce up to 700 units with
exempted engines within an engine-power category during the seven-year
period, with no more than 200 units in any single calendar year within
an engine-power category. This paragraph (b)(2) applies only to engines
from a single engine family within each calendar year.
(c) Percentage calculation. Calculate annually the percentage of
equipment with exempted engines from your total U.S.-directed
production within an engine-power category if you need to show that you
meet the percent-of-production allowances in paragraph (b)(1) of this
section.
(d) Inclusion of engines not subject to Tier 4 standards. The
following provisions apply to engines that are not subject to Tier 4
standards:
(1) If you use the provisions of Sec. 1068.105(a) to use up your
inventories of engines not certified to new emission standards, do not
include these units in your count of equipment with exempted engines
under paragraph (b) of this section.
(2) If you install engines that are exempted from the Tier 4
standards for any reason, other than for equipment-manufacturer
flexibility under this section, do not include these units in your
count of exempted engines under paragraph (b) of this section. For
example, if we grant a hardship exemption for the engine manufacturer,
you do not need to count those as exempted engines under this section.
This paragraph (d)(2) applies only if the engine has a permanent label
describing why it is exempted from the Tier 4 standards.
(3) If the engine's model year or manufacturing date for its
engine-power category precedes the applicability of the Tier 4
standards, you may nevertheless start using the allowances under this
section before the applicability of the Tier 4 standards apply;
however, you may not start using these early allowances before the
seven-year period for using allowances under the Tier 2 or Tier 3
program expires (see 40 CFR 89.102(d)). To use these early allowances,
you must use engines that meet the emission standards described in
paragraph (e) of this section. You must also count these units or
calculate these percentages as described in paragraph (c) of this
section and apply them to the total number or percentage of equipment
with exempted engines we allow for the Tier 4 standards as described in
paragraph (b) of this section. The maximum number of cumulative early
allowances is 10 percent under the percent-of-production allowance or
100 units under the small-volume allowance.
(4) Do not include equipment using model year 2008 or 2009 engines
certified under the provisions of Sec. 1039.101(j) in your count of
equipment using exempted engines.
(e) Standards. If you produce equipment with exempted engines under
this section, the engines must meet less stringent emission standards.
(1) If you are using the provisions of paragraph (d)(3) of this
section, engines must meet the appropriate Tier 1 (or more stringent)
emission standards described in Sec. 89.112.
(2) In all other cases, engines with maximum power from 37 kW up to
560 kW must meet the appropriate Tier 3 standards described in Sec.
89.112. Engines with maximum power below 37 kW or at least 560 kW must
meet the appropriate Tier 2 standards described in Sec. 89.112.
(f) Equipment labeling. You must add a permanent, legible label,
written in block letters in English to the engine or another readily
visible part of each piece of equipment you produce with exempted
engines under this section. This label, which supplements the engine
manufacturer's emission control information label, must include at
least the following items:
(1) The label heading ``EMISSION CONTROL INFORMATION''.
(2) Your corporate name and trademark.
(3) The calendar year in which the equipment is manufactured.
(4) Whom to contact for further information.
(5) The following statement: THIS EQUIPMENT [or identify the type
of equipment]
HAS AN ENGINE THAT HAS BEEN EXEMPTED FROM CURRENT FEDERAL
NONROAD EMISSION STANDARDS, AS ALLOWED BY 40 CFR 1039.625.
(g) Notification and reporting. You must notify us of your intent
to use the provisions of this section and send us an annual report to
verify that you are not exceeding the allowances.
(1) Before January 1 of the first year you intend to use the
flexibility provisions of this section, send the Designated Compliance
Officer and the Designated Enforcement Officer a written notice of your
intent, including:
(i) Your company's name and address.
(ii) Whom to contact for more information.
[[Page 28576]]
(iii) The calendar years you expect to use the exemption provisions
of this section.
(iv) The name and address of the company that produces the engines
you will be using for the equipment exempted under this section.
(v) Your best estimate of the number of units in each engine-power
category you will produce under this section in the upcoming calendar
year and whether you intend to comply under paragraph (b)(1) or (b)(2)
of this section.
(vi) The number of units in each engine-power category you have
sold in previous calendar years under 40 CFR 89.102(d).
(2) For each year that you use the flexibility provisions of this
section, send the Designated Compliance Officer and the Designated
Enforcement Officer a written report by March 31 of the following year.
Include in your report the total number of engines you sold in the
preceding year for each engine-power category, based on actual U.S.-
directed production information. Also identify the percentages of U.S.-
directed production that correspond to the number of units in each
engine-power category and the cumulative numbers and percentages of
units for all the units you have sold under this section for each
engine-power category. You may omit the percentage figures if you
include in the report a statement that you will not be using the
percent-of-production allowances in paragraph (b)(1) of this section.
(h) Recordkeeping. Keep the following records of all equipment with
exempted engines you produce under this section for at least five full
years after the final year in which allowances are available for each
engine-power category:
(1) The model number, serial number, and the date of manufacture
for each engine and piece of equipment.
(2) The maximum power of each engine.
(3) The total number or percentage of equipment with exempted
engines, as described in paragraph (b) of this section and all
documentation supporting your calculation.
(4) The notifications and reports we require under paragraph (g) of
this section.
(i) Enforcement. Producing more exempted engines or equipment than
we allow under this section, or installing engines that do not meet the
certification requirements of paragraph (e) of this section, is a
violation of 40 CFR 1068.101(a)(1). You must give us the records we
require under this section if we ask for them (see 40 CFR
1068.101(a)(2)).
(j) Provisions for engine manufacturers. As an engine manufacturer,
you may produce exempted engines as needed under this section. You do
not have to request this exemption for your engines, but you must have
written assurance from equipment manufacturers that they need a certain
number of exempted engines under this section. Send us an annual report
of the engines you produce under this section, as described in Sec.
1039.250(a). The exempted engines must meet less stringent standards,
as described in paragraph (e) of this section. It must also have the
label we require in Sec. 1039.135, with the following additional
statement: ``THIS ENGINE HAS BEEN EXEMPTED FROM CURRENT FEDERAL NONROAD
EMISSION STANDARDS. SELLING OR INSTALLING THIS ENGINE FOR ANY PURPOSE
OTHER THAN FOR THE EQUIPMENT FLEXIBILITY PROVISIONS OF 40 CFR 1039.625
MAY BE A VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.
(k) Other exemptions. See 40 CFR 1068.255 for exemptions based on
hardship for equipment manufacturers and secondary engine
manufacturers.
Sec. 1039.626 What special provisions apply to engines imported under
the equipment-manufacturer flexibility program?
This section identifies requirements that apply specifically to
equipment manufacturers using the flexibility provisions of Sec.
1039.625 for equipment produced outside the United States. For purposes
of this section, only a nonroad equipment manufacturer with primary
responsibility for designing and manufacturing a piece of equipment
that also installs the engine in the equipment is eligible to use the
allowances under Sec. 1039.625. Companies that import equipment into
the U.S., but do not have the primary responsibility for designing and
manufacturing a piece of equipment or do not install the engine in the
equipment are not eligible for these allowances. They may import exempt
equipment if it is covered by an allowance or transition provision
associated with an equipment manufacturer meeting the requirements of
Sec. 1039.625 and this section. As an equipment manufacturer, you may
use the allowances specified in Sec. 1039.625 if you comply with the
provision in Sec. 1039.625 and commit to the following:
(a) Any United States Environmental Protection Agency inspector or
auditor will be given full, complete and immediate access to conduct
inspections and audits of the foreign nonroad equipment manufacturer.
(1) Inspections and audits may be either announced in advance by
EPA, or unannounced.
(2) Access will be provided to any location where:
(i) Nonroad equipment or vehicle is produced;
(ii) Documents related to manufacturer operations are kept; and
(iii) Equipment or vehicles are tested or stored.
(3) Inspections and audits may be by EPA employees or EPA
contractors.
(4) Any documents requested that are related to matters covered by
inspections and audits will be provided to an EPA inspector or auditor
on request.
(5) Inspections and audits by EPA may include review and copying of
any documents related to demonstrating compliance with the exceptions
in Sec. 1039.625.
(6) Inspections and audits by EPA may include taking samples of
equipment or vehicles, and interviewing employees.
(7) Any employee of a foreign nonroad equipment manufacturer will
be made available for interview by the EPA inspector or auditor, on
request, within a reasonable time period.
(8) English language translations of any documents will be provided
to an EPA inspector or auditor, on request, within 10 working days.
(9) English language interpreters will be provided to accompany EPA
inspectors and auditors, on request.
(b) An agent for service of process located in the District of
Columbia will be named, and service on this agent constitutes service
on the foreign nonroad equipment manufacturer or any officer, or
employee of the foreign nonroad equipment manufacturer for any action
by EPA or otherwise by the United States related to the requirements of
this part.
(c) The forum for any civil or criminal enforcement action related
to the provisions of this section for violations of the Clean Air Act
or regulations promulgated thereunder shall be governed by the Clean
Air Act, including the EPA administrative forum where allowed under the
Clean Air Act.
(d) United States substantive and procedural laws shall apply to
any civil or criminal enforcement action against the foreign nonroad
equipment manufacturer or any employee of the foreign nonroad equipment
manufacturer related to the provisions of this section.
(e) Submitting a notification of intention to use any of the
exceptions in Sec. 1039.625 above, producing and exporting equipment
or vehicles to the
[[Continued on page 28577]]
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