75868 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Rules and Regulations 

§ 52.920 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPROVED KENTUCKY NON-REGULATORY PROVISIONS

Name of non-regulatory SIP provision Applicable geographic or nonattainment area 

State submittal 

date/effective 

date 

EPA approval date Explanations 

*******

* * 

1997 Annual PM2.5 Maintenance Plan 

for the Kentucky portion of the Huntington-Ashland Area.

Boyd County and Lawrence County 

(part) (Kentucky portion of the Huntington-Ashland WV–KY–OH Area).

2/9/12 12/26/12 [Insert citation of publication].For the 1997 Annual 

PM2.5 NAAQS. 

PART 81-[AMENDED] 

■ 3. The authority citation for part 81 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

■ 4. In § 81.318, the table entitled 

‘‘Kentucky-PM2.5 (Annual NAAQS)’’ is 

amended under ‘‘Huntington-Ashland, 

WV–KY–OH’’ by revising the entries for 

‘‘Boyd County’’ and ‘‘Lawrence County 

(part)’’ to read as follows: 

§ 81.318 Kentucky. 

* * * * * 

KENTUCKY—PM2.5—(ANNUAL

NAAQS) 

Designated area 

Designationa

Date1 Type 

Huntington-Ashland, WV–KY–OH: 

* * * * 

Boyd County ..... This action is effective 12/26/ 

12.

Attainment 

Lawrence County (part).

This action is effective 12/26/ 

12.

Attainment 

* * * * 

a Includes Indian Country located in each 

county or area, except as otherwise specified. 1This date is 90 days after January 5, 2005, 

unless otherwise noted. 

* * * * * 

[FR Doc. 2012–30954 Filed 12–21–12; 4:15 pm] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 80 

[EPA–HQ–OAR–2012–0223; FRL–9763–7] 

Regulation of Fuels and Fuel 

Additives: Modifications to the 

Transmix Provisions Under the Diesel 

Sulfur Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is amending the 

requirements under EPA’s diesel sulfur 

program related to the sulfur content of 

locomotive and marine (LM) diesel fuel 

produced by transmix processors and 

pipeline facilities. These amendments 

will reinstate the ability of locomotive 

and marine diesel fuel produced from 

transmix by transmix processors and 

pipeline operators to meet a maximum 

500 parts per million (ppm) sulfur 

standard outside of the Northeast MidAtlantic Area and Alaska and expand 

this ability to within the Northeast MidAtlantic Area provided that: the fuel is 

used in older technology locomotive 

and marine engines that do not require 

15 ppm sulfur diesel fuel, and the fuel 

is kept segregated from other fuel. These 

amendments will provide significant 

regulatory relief for transmix processors 

and pipeline operators to allow the 

petroleum distribution system to 

function efficiently while continuing to 

transition the market to virtually all 

ultra-low sulfur diesel fuel (ULSD, i.e. 

15 ppm sulfur diesel fuel) and the 

environmental benefits it provides. 

DATES: This rule is effective on February 

25, 2013 without further notice. 

ADDRESSES: EPA established a docket 

for this action under Docket ID No. 

EPA–HQ–OAR–2012–0223. All 

documents in the docket are listed in 

the www.regulations.gov index. 

Although listed in the index, some 

information may not be publicly 

available, (e.g., CBI or other information 

whose disclosure is restricted by 

statute). Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket and 

Information Center, EPA, EPA West, 

Room 3334, 1301 Constitution Ave. 

NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Air Docket is (202) 566– 

1742. You may be charged a reasonable 

fee for photocopying docket materials, 

as provided in 40 CFR part 2. 

FOR FURTHER INFORMATION CONTACT: 

Jeffrey A. Herzog, Office of 

Transportation and Air Quality, 

National Vehicle and Fuel Emissions 

Laboratory, Environmental Protection 

Agency, 2000 Traverwood Drive, Ann 

Arbor, Michigan, 48105; telephone 

number: (734) 214–4227; fax number: 

(734) 214–4816; email address: 

herzog.jeff@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

A. Purpose 

EPA is issuing a final rule to amend 

provisions in the diesel sulfur fuel 

programs. The diesel sulfur 

amendments provide necessary 

flexibility for transmix processors and 

pipeline operators who produce 

locomotive and marine diesel fuel. EPA 

is taking this action under section 211 

of the Clean Air Act. 

B. Summary of Today’s Rule 

The diesel transmix amendments will 

reinstate an allowance for transmix 

processors and pipeline operators to 

produce 500 ppm sulfur diesel fuel for 

use in older technology locomotive and 

marine diesel outside of the Northeast 

Mid-Atlantic (NEMA) Area and Alaska 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Rules and Regulations 75869 

1The NEMA area is defined in 40 CFR 

80.510(g)(1) as follows: North Carolina, Virginia, 

Maryland, Delaware, New Jersey, Connecticut, 

Rhode Island, Massachusetts, Vermont, New 

Hampshire, Maine, Washington DC, New York 

(except for the counties of Chautauqua, Cattaraugus, 

and Allegany), Pennsylvania (except for the 

counties of Erie, Warren, McKean, Potter, Cameron, 

Elk, Jefferson, Clarion, Forest, Venango, Mercer, 

Crawford, Lawrence, Beaver, Washington, and 

Greene), and the eight eastern-most counties of 

West Virginia (Jefferson, Berkeley, Morgan, 

Hampshire, Mineral, Hardy, Grant, and Pendleton). 

2Regulation of Fuels and Fuel Additives: 

Modifications to Renewable Fuel Standard and 

Diesel Sulfur Programs, Direct final rule, 77 FR 

61281, October 9, 2012. Regulation of Fuels and 

Fuel Additives: Modifications to Renewable Fuel 

Standard and Diesel Sulfur Programs, Notice of 

Proposed Rule, 77 FR 61313, October 9, 2012. 

3Regulation of Fuels and Fuel Additives: 

Modifications to Renewable Fuel Standard and 

Diesel Sulfur Programs, Withdrawal of direct final 

rule, 77 FR 72746, December 6, 2012. 

after 2014.1 These provisions were 

originally put in place as a necessary 

flexibility to address feasibility and cost 

issues associated with handling of the 

transmix volume generated in the 

pipeline distribution system. These 

provisions allowed the fuel distribution 

system to continue to function while 

transitioning to ULSD. The technology 

to economically reduce the sulfur 

content of transmix distillate product to 

15 ppm at transmix processor and 

pipeline facilities did not exist, and any 

alternative measures of disposing of 

transmix were likewise deemed 

infeasible or cost prohibitive as the 

market was then configured. Thus, in 

order to implement the ULSD 

regulations, an outlet for the 

consumption of transmix distillate 

product was necessary. With no outlet, 

transmix would build up in storage 

tanks and pipelines would need to cease 

operations. When the ULSD standards 

were expanded to nonroad, locomotive, 

and marine (NRLM) diesel fuel, this 

would have removed the sole outlet in 

most areas of the country. Consequently, 

the transmix flexibility was finalized. 

EPA’s ocean-going vessels rule, 

however, removed this allowance 

beginning 2014 to streamline our ULSD 

compliance provisions and avoid 

additional complications that would 

otherwise result from adding a new 

stream of diesel, containing up to 1,000 

ppm sulfur, for category 3 (C3) marine. 

EPA believed at the time that this new 

1,000 ppm sulfur product could provide 

a suitable outlet for transmix distillate 

product. Thus, we believed that it was 

possible to remove the transmix 

flexibility. Transmix processors stated 

that they were not aware of the changes 

to the 500-ppm LM transmix provisions 

until after they were finalized, and that 

the C3 marine market would not be a 

viable outlet for their distillate product. 

Not only are most locations for refueling 

C3 marine vessels not located near 

transmix facilities, but C3 marine 

terminals also do not lend themselves 

easily to the receipt of small batches of 

transmix distillate product by tank 

truck. It might be possible over time to 

modify C3 terminals and fueling 

operations to receive transmix, but such 

changes were not within their control. 

Until such time, the locomotive and 

marine diesel market remained the only 

viable market. 

On June 29, 2010, EPA received a 

petition from a group of transmix 

processors requesting that the Agency 

reconsider and reverse the 2014 sunset 

date for the 500-ppm LM transmix 

flexibility. Based on additional input 

that we received from transmix 

processors and other stakeholders in the 

fuel distribution system during our 

consideration of the petition, EPA 

believed that it would be appropriate to 

extend the 500-ppm diesel transmix 

flexibility for older locomotive and 

marine engines beyond 2014 for reasons 

discussed below. On October 9, 2012, 

EPA published in the Federal Register 

a Direct Final Rule (DFR) and parallel 

Notice of Proposed Rule (NPRM).2 The 

DFR and NPRM also included other 

provisions not relevant to this final rule. 

The DFR was withdrawn on this issue 

due to the receipt of a negative 

comment.3 Based on EPA’s 

consideration of the comments on the 

NPRM, EPA is finalizing the proposal to 

extend the 500-ppm transmix flexibility 

outside of the NEMA area and Alaska 

beyond 2014. 

In response to industry input, EPA 

also requested comments in the NPRM 

on whether the 500-ppm transmix 

flexibility should be extended to the 

NEMA area. Based on EPA’s 

consideration of the comments we 

received, we are extending the transmix 

flexibility to within the NEMA area 

beginning with the effective date of this 

final rule. 

Comments on the NPRM stated that 

the regulations did not provide adequate 

certainty that pipeline operators as well 

as transmix processors may produce 500 

ppm LM from transmix. Based on these 

comments we are amending the 

regulations to provide clarity regarding 

EPA’s long standing policy that pipeline 

operators as well as transmix processors 

may take advantage of the 500-ppm LM 

transmix flexibility. 

C. Costs and Benefits 

The flexibilities promulgated in this 

rule will provide a feasible and cost 

effective means for the continued 

operation of the fuel distribution system 

under our ULSD program regulations as 

the locomotive and marine market 

transitions to equipment that require the 

use of ULSD and until such time as 

alternative methods of treatment or 

disposal for transmix can be developed. 

These amendments will impose no new 

direct costs or burdens on regulated 

entities beyond the minimal costs 

associated with reporting and 

recordkeeping requirements. These 

amendments will provide significant 

regulatory relief for transmix processors 

and pipeline operators to allow the 

petroleum distribution system to 

function efficiently while continuing to 

transition the market to virtually all 

ultra-low sulfur diesel fuel (ULSD, i.e. 

15 ppm sulfur diesel fuel) and the 

environmental benefits it provides. 

II. Does this action apply to me? 

Entities potentially affected by this 

action include those involved with the 

production, distribution and sale of 

diesel fuel. Regulated categories and 

entities affected by this action include: 

Category NAICS codes a SIC codes b Examples of potentially regulated 

parties 

Industry ............. 324110 ............. 2911 ................. Petroleum refiners. 

Industry ............. Various ............. Various ............. Transmix processors. 

Industry ............. 486910 ............. 4613 ................. Refined petroleum product pipelines. 

Industry ............. 424710 ............. 5171 ................. Petroleum bulk stations and terminals. 

Industry ............. 424720 ............. 5172 ................. Petroleum and petroleum products merchant wholesalers. 

Industry ............. 454319 ............. 5989 ................. Other fuel dealers. 

a North American Industry Classification System (NAICS). 

bStandard Industrial Classification (SIC) system code. 


tkelley on DSK3SPTVN1PROD with 
75870 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Rules and Regulations 

4 69 FR 38958 (June 24, 2004). 

5 75 FR 22896 (April 30, 2010). 

6Control of Emissions of Air Pollution from 

Nonroad Diesel Engines and Fuel, Final Rule, 69 FR 

38958, June 24, 2004. Control of Emissions of Air 

Pollution From Locomotive and Marine 

Compression-Ignition Engines Less Than 30 Liters 

per Cylinder; Republication, Final Rule, 73 FR 

37096, June 30, 2008. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. This table lists 

the types of entities that EPA is now 

aware could be potentially regulated by 

this action. Other types of entities not 

listed in the table could also be 

regulated. To determine whether your 

entity is regulated by this action, you 

should carefully examine the 

applicability criteria of Part 80, subparts 

D, E and F of title 40 of the Code of 

Federal Regulations. If you have any 

question regarding applicability of this 

action to a particular entity, consult the 

person in the preceding FOR FURTHER

INFORMATION CONTACT section above. 

III. Amendments to the Diesel Transmix 

Provisions 

The final regulations for the nonroad 

diesel program were published in the 

Federal Register on June 24, 2004.4 The 

provisions in the nonroad diesel rule 

related to diesel fuel produced from 

transmix by transmix processors and 

pipeline operators were modified by the 

C3 Marine diesel final rule that was 

published on April 30, 2010.5 This 

action further amends the requirements 

for diesel fuel produced from transmix 

by transmix processors and pipeline 

operators. Below is a table listing the 

provisions that we are amending. The 

following sections provide a discussion 

of these amendments. 

Proposed 

amendments to the 

diesel program 

Description 

Section: 

80.511(b)(4) .............. Amended to allow for 

the production and 

sale of 500 ppm locomotive and marine (LM) diesel fuel 

produced from 

transmix past 2014. 

80.513 (entire section).Amended to allow for 

the production and 

sale of 500 ppm 

LM diesel fuel produced from 

transmix outside 

the NEMA area 

and Alaska past 

2014, to extend this 

flexibility to within 

the NEMA area, 

and to provide additional clarity regarding the production of 500 ppm LM 

from transmix by 

pipeline operators. 

Proposed 

amendments to the 

diesel program 

Description 

80.572(d) ................... Amended to extend 

500ppm LM diesel 

fuel label past 

2012. 

80.597(d)(3)(ii) .......... Amended to include 

500 ppm LM diesel 

fuel in the list of 

fuels that an entity 

may deliver or receive custody of 

past June 1, 2014. 

A. Extension of the Diesel Transmix 

Provisions Outside of the Northeast 

Mid-Atlantic Area and Alaska Beyond 

2014 

Batches of different fuel products 

commonly abut each other as they are 

shipped in sequence by pipeline. When 

the mixture between two adjacent 

products is not compatible with either 

product, it is removed from the pipeline 

and segregated as transmix. Transmix 

primarily is gathered for reprocessing at 

the end of the pipeline distribution 

system and downstream from any 

refinery that might possibly be able to 

desulfurize the transmix. Transmix is 

also sometimes gathered at intermediate 

points in the pipeline distribution 

system. In addition to the long and 

inefficient transportation distances to 

return transmix to a refinery for 

reprocessing, incorporating transmix 

into a refinery’s feed also presents 

technical and logistical refining process 

challenges that typically make refinery 

reprocessing infeasible. In particular, 

refineries are not set up to safely receive 

small batches of feedstock by truck, 

crude towers are not designed to safely 

handle the large swings in distillation 

range of their feed that would 

accompany the introduction of transmix 

to the tower, and other locations in the 

refinery (such as hydrodesulfurization 

units) are not designed to safely receive 

additional feedstock. Thus, transmix 

processors and pipeline facilities that 

produce diesel fuel from transmix are 

necessary to dispose of transmix and 

maintain an efficient fuel distribution 

system. However, they can only do so if 

they can find a market that can utilize 

the transmix they produce. 

Transmix processing facilities handle 

an average of 5,000 barrels per day of 

transmix compared to an average of 

125,000 barrels per day of crude oil for 

diesel fuel refineries. The low volumes 

handled by transmix processors as well 

as other constraints mean that transmix 

processors are limited to the use of a 

simple distillation tower and additional 

blendstocks to manufacture finished 

fuels. Pipeline transmix gathering 

facilities handle even lower volumes of 

fuel. Such facilities manufacture diesel 

fuel from the transmix that results from 

the interface between batches of ULSD 

and jet fuel. The presence of diesel fuel 

in the mixture results in the transmix 

not meeting the stringent quality 

specifications for jet fuel (e.g., 

distillation and additive requirements 

unique to jet fuel). Because this 

transmix does not contain gasoline, a 

finished distillate fuel from the transmix 

can be produced without the need for 

further distillation. However, the high 

sulfur contribution from jet fuel (e.g., 

maximum 3,000 ppm for jet fuel) and 

other high sulfur products in multiproduct pipelines results in this 

transmix not meeting the 15 ppm sulfur 

specification for ULSD. There is 

currently no desulfurization equipment 

which has been demonstrated to be 

suitable for application at a transmix 

processor or pipeline transmix gathering 

facility. The cost of installing and 

operating a currently available 

desulfurization unit is too high in 

relation to the small volume of distillate 

fuel produced at such facilities. Without 

an outlet for the transmix, it would 

build up and could eventually force a 

shutdown of pipeline operations until 

an outlet could be found. 

The engine emission standards 

finalized in the rulemakings for new 

nonroad, locomotive, and Category 1 & 

2 (C1 & C2) marine engines necessitate 

the use of sulfur-sensitive emissions 

control equipment which requires 15 

ppm sulfur diesel fuel to function 

properly.6 Accordingly, the nonroad 

rule required that nonroad, locomotive 

and marine (NRLM) diesel fuel must 

meet a 15 ppm sulfur standard in 

parallel with the introduction of new 

sulfur-sensitive emission control 

technology to NRLM equipment. 

Beginning June 1, 2014, the nonroad 

diesel rule required that all NRLM 

diesel fuel produced by refiners and 

importers must meet a 15 ppm sulfur 

standard. The nonroad diesel rule 

included special provisions to allow the 

continued use of 500 ppm sulfur 

locomotive and marine diesel fuel 

produced from transmix by transmix 

processors and pipeline operators 

beyond 2014 in older technology 

engines as long as such engines 

remained in the in-use fleet. These 

provisions along with other now 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Rules and Regulations 75871 

7As discussed in the original nonroad diesel 

rulemaking, as LM equipment is retired from 

service, the market for 500 ppm LM will gradually 

diminish and eventually disappear. Given the long 

lifetime of LM equipment (in many cases 40 years 

or more), we anticipate that a market for 500 ppm 

LM will remain for a significant amount of time. 

This phase-out time will allow transmix processors 

and pipeline operators to either transition their >15 

ppm sulfur distillate product to other markets (e.g. 

C3 marine, heating oil, process heat, export), 

develop a means to desulfurize fuel at their 

facilities, or to implement other alternatives to 

dispose of transmix. 

8This included the now-completed phase-in of 15 

ppm highway diesel fuel and 15 ppm nonroad 

diesel fuel as well as the phase-out of the small 

refiner and credits provisions for LM diesel fuel 

that will be completed in 2014. 

9Control of Emissions From New Marine 

Compression-Ignition Engines at or Above 30 Liters 

per Cylinder; Proposed Rule, 74 FR 44442 (August 

28, 2009). 

10Control of Emissions From New Marine 

Compression-Ignition Engines at or Above 30 Liters 

per Cylinder; Final Rule, 75 FR 22896 (April 30, 

2010). 

11 ‘‘Petition to Reconsider Final Rule: Control of 

Emissions from New Marine Compression Ignition 

Engines at or Above 30 Liters per Cylinder; Final 

Rule,’’ 75 FR 22,896 (April 30, 2010), Letter to EPA 

Administrator Lisa Jackson dated June 29, 2010, 

from Chet Thompson of Crowell and Moring LLP, 

on behalf of Allied Energy Company, Gladieux 

Trading and Marketing, Insight Equity Acquisition 

Partners, LP, Liquid Titan, LLC, and Seaport 

Refining and Environmental, LLC. 

12Petition for Review, United States Court of 

Appeals for the District of Columbia Circuit, 

Petitioners, Allied Energy Company, Gladieux 

Trading and Marketing, Insight Equity Acquisition 

Partners, LP, LiquidTitan, LLC, and Seaport 

Refining and Environmental LLC, v. Respondent, 

U.S. Environmental Protection Agency, Case 10– 

1146, Document 1252640, Filed 06/29/2010. 

13See Section IV of today’s notice for our 

summary and analysis of comments. 

14The useful life of LM engines can exceed 40 

years. In the 2011 edition of ‘‘Railroad Facts,’’ the 

Association of American Railroads reported that in 

2010 approximately 35% of the locomotive fleet 

was at least 21 years old. 

expired flexibilities in the diesel 

program were designed to provide a 

feasible and cost effective means for the 

continued operation of the fuel 

distribution system under our ULSD 

program regulations as the locomotive 

and marine market transitioned to 

equipment that required the use of 

ULSD and until such time as alternative 

methods of treatment or disposal of 

transmix could be developed.7 The 500- 

ppm LM diesel transmix provisions 

were limited to areas outside of the 

Northeast Mid-Atlantic area and Alaska 

because it was judged that the heating 

oil market in these areas would provide 

a sufficient outlet for transmix distillate 

in these areas. In addition, the 

disposition of transmix in Alaska is not 

a concern since there are no refined 

product pipelines in Alaska. Excluding 

the NEMA area and Alaska allowed us 

to exempt the NEMA area and Alaska 

from the fuel marker provisions that are 

a part of the compliance assurance 

regime. The continuation of the 500- 

ppm LM diesel transmix provisions 

beyond 2014 (finalized in the nonroad 

rule) was supported by ongoing 

recordkeeping, reporting, and fuel 

marker provisions that were established 

to facilitate enforcement during the 

phase-in of the diesel sulfur program.8

In the development of the proposed 

requirements for Category 3 (C3) marine 

engines, EPA worked with industry to 

evaluate how the enforcement 

provisions for the new 1,000-ppm C3 

marine diesel fuel to be introduced in 

June of 2014 could be incorporated into 

existing diesel program provisions.9 Our 

assessment based on input from 

industry at the time indicated that 

incorporating the new C3 marine fuel 

into the diesel program enforcement 

mechanisms while preserving the 500- 

ppm diesel transmix flexibility could 

not be accomplished without retaining 

significant existing regulatory burdens 

(‘‘designate and track’’ and fuel marker 

requirements) and introducing new 

burdens on a broad number of regulated 

parties. We also believed that the new 

C3 marine diesel market would provide 

a sufficient outlet for transmix distillate 

product in place of the 500 ppm LM 

diesel market. Thus, we believed the 

500-ppm LM diesel transmix flexibility 

would no longer be needed after 2014. 

Hence, we requested comment on 

whether we should eliminate the 500- 

ppm LM transmix provisions in parallel 

with the implementation of the C3 

marine diesel sulfur requirement. This 

approach allowed for a significant 

reduction in the regulatory burden on a 

large number of industry stakeholders 

through the retirement of the diesel 

program’s designate-and-track and fuel 

marker requirements. All of the 

comments that we received on the 

proposed rule were supportive of the 

approach. Consequently, we finalized 

the approach in the C3 marine final rule 

that was published on April 30, 2010.10

EPA received a petition from a group 

of transmix processors on June 29, 2010, 

requesting that the Agency reconsider 

and reverse the 2014 sunset date for the 

500-ppm LM transmix flexibility.11 A 

parallel petition for judicial review was 

filed with the U.S. Court of Appeals, 

D.C. Circuit.12 The transmix processors 

stated that they were not aware of the 

changes to the 500-ppm LM transmix 

provisions until after they were 

finalized. The petitioners also stated 

that they believe that the C3 marine 

market would not be a viable outlet for 

their distillate product. Not only are 

most locations for refueling C3 marine 

vessels not located near transmix 

facilities, but C3 marine terminals also 

do not lend themselves easily to the 

receipt of small batches of transmix 

distillate product by tank truck. It might 

be possible over time to modify C3 

terminals and fueling operations to 

receive transmix, but such changes were 

not within their control. Until such time 

the locomotive and marine diesel 

market remained the only viable market. 

Based on the additional input that we 

received from transmix processors and 

other stakeholders in the fuel 

distribution system during our 

consideration of the petition and the 

comments on the NPRM, EPA believes 

that it is appropriate to reinstate the 

500-ppm diesel transmix flexibility 

beyond 2014.13

These amendments will provide 

significant regulatory relief for transmix 

processors and pipeline operators to 

allow the petroleum distribution system 

to function efficiently while 

contributing to transition the market to 

virtually all ultra-low sulfur diesel fuel 

(ULSD, i.e. 15 ppm sulfur diesel fuel) 

and the environmental benefits it 

provides. Reinstating this transmix 

flexibility will provide a feasible and 

cost effective means for the continued 

operation of the fuel distribution system 

under our ULSD program regulations as 

the locomotive and marine market 

transitioned to equipment that required 

the use of ULSD and until such time as 

alternative methods of treatment or 

disposal for transmix can be developed. 

As the locomotive and marine engine 

fleet turns over to equipment that 

require the use of ULSD, this flexibility 

will naturally phase out.14 Providing 

additional time for transmix processors 

and pipeline operators will allow them 

to develop other markets for transmix, 

including perhaps the C3 marine 

market, export, or perhaps treatment 

technology. Therefore, extending this 

flexibility would reduce the overall 

burden on industry of compliance with 

EPA’s diesel sulfur program and 

facilitate a smoother transition of the 

entire market to ULSD. EPA will 

consider removing the 500-ppm 

transmix flexibility when it appears that 

it no longer serves a purpose. 

B. Expansion of the Diesel Transmix 

Provisions To Include the Northeast 

Mid-Atlantic Area 

The nonroad diesel rule specified that 

the small diesel refiner, credit, and 

transmix provisions would not apply in 

the Northeast Mid-Atlantic area. Hence, 

all LM diesel fuel shipped from 

refineries, transmix processors, and 

importers for use in the NEMA area was 

required to meet a 15-ppm sulfur 

standard beginning June 1, 2012 when 


tkelley on DSK3SPTVN1PROD with 
75872 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Rules and Regulations 

15LM diesel fuel in terminals located in the 

NEMA area is subject to a 15-ppm sulfur standard 

beginning August 1, 2012. LM diesel fuel at retailers 

and wholesale purchaser consumers must meet a 

15-ppm sulfur standard beginning October 1, 2012. 

16See Section IV in today’s notice for the 

summary and analysis of comments. 

17Transmix processing facilities are located at 

downstream locations on refined petroleum product 

pipelines. Such pipeline locations are typically not 

located close to the coasts where a C3 market exists. 

A number of such locations are located in the center 

of the United States. Locomotive refueling facilities 

are located throughout the United States and C2 

marine refueling locations are located on navigable 

rivers as well as on the coasts. 

18Based on information provided by transmix 

processors, we estimate that approximately 750 

million gallons per year of transmix is produced 

annually, approximately 60% of the transmixderived product is distillate fuel, and the remainder 

is gasoline. 

19We estimate that approximately 50 percent of 

diesel transmix is produced by pipelines that serve 

the NEMA area. We believe that it is reasonable to 

assume that 50 percent of the diesel transmix 

within the NEMA area will continue to be used as 

heating oil despite access to the LM market. Thus, 

we estimate that 25 percent of all diesel transmix 

will continue to be used in heating oil. 

20Regulatory Impact Analysis: Control of 

Emissions of Air Pollution from Locomotive 

Engines and Marine Compression-Ignition Engines 

Less Than 30 Liters per Cylinder, EPA420–R–08– 

001, February 2008. 

the 15-ppm standard becomes effective 

for large refiners and importers.15 This 

approach allowed the NEMA area to be 

exempted from fuel marker provisions 

that are a component of the compliance 

assurance provisions associated with 

the small diesel refiner, credit, and 

transmix provisions. As discussed 

previously a significant factor in the 

decision made in the nonroad diesel 

rule to exclude the NEMA from the 

diesel transmix provisions was our 

assessment that the heating oil market 

provided a sufficient outlet for transmix 

distillate product in this area. Since the 

publication of the nonroad diesel rule in 

2004, a number of states in the NEMA 

area have moved towards implementing 

a 15-ppm sulfur standard for heating oil. 

A significant fraction of heating oil in 

the area will be subject to a 15-ppm 

sulfur standard beginning in 2012, and 

it is likely that other states will adopt a 

15-ppm sulfur standard for heating oil 

in the following years. 

Transmix processors and other fuel 

distributors in the NEMA area stated 

that they were concerned that the 

changing state heating oil specifications 

would impact their ability to market 

transmix distillate product beginning in 

2012. They requested that EPA extend 

the 500-ppm LM flexibility to the 

NEMA area by 2012 to lessen the impact 

on the fuel distribution system of 

complying with more stringent federal 

and state distillate sulfur standards. 

Consequently, we requested comment in 

the NPRM on expanding the 500-ppm 

LM transmix flexibility to include the 

NEMA area. Based on our review of the 

comments on the NPRM, today’s final 

rule expands the 500-ppm transmix 

flexibility to include the NEMA area 

beginning on the effective date of 

today’s rule.16

Allowing 500-ppm LM from transmix 

to be used outside of the NEMA area 

after 2014 reinstates a flexibility that 

was withdrawn by the C3 marine final 

rule. Allowing 500-ppm LM to be used 

inside the NEMA area provides 

flexibility that was previously not 

included in EPA’s diesel program to 

offset a portion of the flexibility lost 

with the transition to ultra-low sulfur 

heating oil in the NEMA. This will serve 

to allow the ULSD and ultra-low sulfur 

heating oil provisions to continue to be 

successfully implemented and maintain 

the integrity of the petroleum 

distribution system. Otherwise, as in the 

discussion for outside the NEMA above, 

without a practical outlet for the sale/ 

disposal of transmix, the pipeline 

distribution system which provides 

much of the fuel to the NEMA could not 

continue to function. 

Expanding the transmix flexibility to 

the NEMA area will provide significant 

regulatory relief for transmix processors 

and pipeline operators to allow the 

petroleum distribution system to 

function efficiently while continuing to 

transition the market to virtually all 

ultra-low sulfur diesel fuel (ULSD, i.e. 

15 ppm sulfur diesel fuel) and the 

environmental benefits it provides. The 

same compliance assurance 

requirements that we are finalizing for 

use outside of the NEMA area will be 

applied within the NEMA area. A 

substantial fraction of the transmix 

processing industry markets fuel within 

the NEMA area. Thus, the additional 

time to prepare for a transition to other 

markets for transmix distillate product 

that is afforded by the extension of the 

500-ppm LM transmix flexibility to the 

NEMA is particularly significant. 

C. Transmix Flexibility Emission Effects 

It is difficult to assess the 

environmental consequences of the 

diesel transmix provisions finalized by 

today’s action because it is difficult to 

know how the market would function 

without today’s action. Based on the 

feedback received, desulfurization of 

transmix at either transmix facilities or 

refineries is not currently viable and the 

C3 marine and other potential markets 

are not set up to handle the receipt and 

use of transmix. Thus, while it is 

possible to assess the emission impacts 

associated with the use of transmix in 

lieu of ULSD in locomotive and marine 

applications, it is difficult to know what 

the baseline for comparison would be, 

as all other options at present appear 

infeasible. Nevertheless, in order to 

provide an estimate of the potential 

emission impacts we have 

conservatively modeled a base case 

where we assume, as in the C3 marine 

final rule, that the diesel transmix could 

in fact be consumed in the C3 market. 

Other possible assumptions (e.g., export, 

shipped to a refinery for reprocessing) 

would only add transport distance, 

increasing the emissions in the base 

case. 

Thus, to evaluate the environmental 

consequences of the diesel transmix 

provisions finalized by today’s notice, 

we compared the potential increase in 

emissions of sulfate particulate matter 

(PM) and sulfur dioxide (SO2) from the 

use of 500 ppm LM from transmix in 

older engines to the additional 

transportation emissions associated 

with shipment of transmix to the 

Category 3 (C3) marine market which 

might be avoided by allowing continued 

access to the 500 ppm LM market. 

Markets for locomotive and marine 

diesel tend to be nearer to transmix 

processing facilities than markets for C3 

marine diesel.17 Therefore, the diesel 

transmix provisions in today’s rule will 

result in a reduction in nitrogen oxides 

(NOX), volatile organic compounds 

(VOCs), carbon monoxide (CO), PM, and 

toxics as well as other emissions that 

would otherwise be associated with 

transporting diesel transmix to the more 

distant markets. 

We estimate that approximately 450 

million gallons of distillate fuel per year 

is produced from transmix.18 However, 

some of this transmix distillate product 

would continue to be used as heating oil 

regardless of whether the diesel 

transmix provisions were finalized as 

long at some of that market remained 

higher than 15 ppm. Given that today’s 

rule includes provisions to expand the 

transmix flexibility to the NEMA area 

where the majority of heating oil is 

used, we estimate that as much as 337 

million gallons per year of transmix 

distillate product might be used in older 

LM engines initially, and then decline 

over time as the locomotive and marine 

diesel fleet transitions to engines 

requiring ULSD.19 An estimated 6,994 

million gallons of diesel fuel was 

estimated to be used in locomotive and 

marine engines in 2004.20 Thus, the 

volume of transmix distillate product 

that may be used in LM engines 

represents at most 4.8% of the total 

diesel fuel use in such engines. 

Although some batches of diesel 

transmix may approach the 500 ppm 

sulfur limit, the average sulfur content 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Rules and Regulations 75873 

21The deferred additional truck transport would 

also avoid the production of 47,380 tons of CO2

emissions. An additional 4,220 thousand gallons of 

diesel fuel would be consumed to support the 

increased truck transport with an associated 

increase in diesel fuel costs of 17 million dollars. 

22See Section IV in today’s notice for the 

summary and analysis of comments. 

23See 40 CFR 80.554(a)(4). 

is considerably less. Comments on the 

NPRM stated that the sulfur content of 

diesel transmix is often 100 ppm to 200 

ppm. Based on these comments, we 

have assumed for this analysis that the 

sulfur content of diesel transmix will 

average about 150 ppm. When burned in 

non-catalyst equipped engines, the vast 

majority (approximately 98 percent) of 

sulfur in diesel fuel comes out of the 

exhaust as SO2, with the remainder 

coming out as H2SO4 (sulfate PM). Thus, 

as shown in Table 1, SO2 emissions 

from locomotive and marine diesel 

engines would be expected to rise 

nationwide by approximately 321 tons, 

and sulfate PM emissions by about 26 

tons. 

At the same time, emissions from 

highway diesel engines would be 

expected to decline due to the reduced 

distances associated with transporting 

diesel transmix to locomotive and 

marine diesel terminals instead of C3 

marine terminals. Based on an 

assessment of the locations of potential 

C3 marine outlets as opposed to 

locomotive and marine outlets, and 

based on comments we received on the 

proposal, we estimate that allowing the 

use of transmix in the locomotive and 

marine diesel market would decrease 

trucking distances by an average of 

approximately 250 miles (one way). In 

reality trucking distances and associated 

emissions could be considerably higher 

in order to reach a refinery that might 

be reconfigured to process transmix, or 

to be exported. Based on an assumed 

capacity for a transport truck of 8,000 

gallons of transmix distillate, and EPA’s 

emission factors for transport trucks, as 

shown in Table 1, allowing diesel 

transmix to continue to be burned in the 

older locomotive and marine 

applications thereby resulting in 

deferred additional truck transport of 

transmix distillate would decrease 

nationwide emissions of NOX by 194 

tons, VOC by 19 tons, CO by 58 tons, 

PM2.5 by 7 tons, SO2 by less than one 

ton, and small reductions in various air 

toxic emissions.21

TABLE 1—NATIONWIDE ANNUAL EMISSIONS EFFECTS

Emissions effects 

from use of TDP 

instead of ULSD 

in older LM engines (short tons) 

Emission effects 

from avoided 

transport of TDP 

(short tons) 

Net emissions effects of the 

transmix flexibility (short tons) 

ULSD programs 

emissions effects 

(short tons) 

Transmix flexibility emissions 

effects as percentage of emission effects of 

ULSD programs 

NOX .................................................................. 0 ¥ 194 ¥ 194 ¥ 4,023,162 ¥ 0.005 

VOC ................................................................. 0 ¥ 19 ¥ 19 ¥ 160,350 ¥ 0.012 

CO .................................................................... 0 ¥ 58 ¥ 58 ¥ 1,912,706 ¥ 0.003 

PM .................................................................... + 26 ¥ 7 + 19 ¥ 264,492 + 0.007 

SO2 ................................................................... + 321 ¥ 0.35 + 321 ¥ 516,269 + 0.062 

Benzene ........................................................... 0 ¥ 0.19 ¥ 0.19 ¥ 2,330 ¥ 0.008 

Formaldehyde .................................................. 0 ¥ 1.45 ¥ 1.45 ¥ 16,816 ¥ 0.009 

Acetaldehyde ................................................... 0 ¥ 0.53 ¥ 0.53 ¥ 6,887 ¥ 0.008 

1,3-Butadiene ................................................... 0 ¥ 0.11 ¥ 0.11 ¥ 882 ¥ 0.012 

Acrolein ............................................................ 0 ¥ 0.06 ¥ 0.06 ¥ 200 ¥ 0.030 

As can be seen from Table 1, the 

diesel transmix provisions being 

finalized today provide on balance 

small reductions in emissions of NOX, 

VOC, CO, and toxics and small net 

increases in PM and SO2. These 

emission effects will decline over time 

as the potential market for 500 ppm LM 

diminishes and eventually disappears. 

Since this final rule is taking an action 

to allow the ULSD program to be 

feasibly implemented, the emissions 

effects of this action must be viewed in 

the context of the overall ULSD 

regulations that this FRM is part of. As 

further shown in Table 1, the net 

emission impacts of all pollutants of 

this action is very small and we believe 

will have a very small impact in 

comparison to the benefits of the entire 

ULSD program that is enabled by 

today’s action. The annual emissions 

reductions achieved by EPA’s ULSD 

regulations are enormous compared to 

the effects of this rulemaking. Thus, the 

clean diesel programs will be providing 

very large emissions benefits which are 

little affected by the transmix flexibility. 

This transmix flexibility was judged to 

be a necessary component of the clean 

diesel program when it was finalized. 

Therefore, it is appropriate that the 

transmix flexibility be reinstated and 

expanded to the NEMA area. The use of 

500 ppm LM from transmix would be 

limited to older technology engines that 

do not possess sulfur-sensitive 

emissions control technology. We 

believe that the 500 ppm LM segregation 

and other associated requirements 

would prevent misfueling of sulfursensitive engines. 

D. Compliance Assurance Provisions 

Industry stakeholders suggested 

alternative enforcement mechanisms to 

support the extended flexibility which 

would not necessitate reinstating and 

expanding the designate-and-track and 

fuel marker provisions that were retired 

by the C3 marine final rule. 

Reinstatement and expansion of these 

provisions would likely place an 

unacceptable burden on a large number 

of stakeholders, most of whom would 

not handle 500 ppm LM. The suggested 

alternative enforcement mechanism 

would impose minimal additional 

reporting and recordkeeping burdens 

only on the parties that produce, 

handle, and use 500 ppm LM. We 

believe that this alternative enforcement 

approach (which we proposed in the 

NPRM) will meet the Agency’s goals of 

ensuring that the pool of 500 ppm LM 

is limited to transmix distillate and that 

500 ppm LM is not used in sulfursensitive emissions control 

equipment.22

The compliance assurance provisions 

that we are finalizing to support the 

extension of the diesel transmix 

flexibility outside the NEMA area and 

Alaska beyond 2014 and the expansion 

of the flexibility to within the NEMA 

area are similar to those that were used 

to support the small refiner flexibilities 

in Alaska during the phase-in of EPA’s 

diesel sulfur program.23 In addition to 


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75874 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Rules and Regulations 

24An entity is defined as any company that takes 

custody of 500 ppm LM diesel fuel. 

25 In most cases, fewer entities would take 

custody of the product. In many cases, only a single 

entity (a tank truck operator) would be in the 

distribution chain between the transmix processor 

and the ultimate consumer. However, we 

understand that as many as 4 separate entities may 

handle the product between the producer and 

ultimate consumer if it is shipped by pipeline: the 

tank truck operator to ship the product from the 

producer to the pipeline, the pipeline operator, the 

product terminal that receives the fuel from the 

pipeline, and another tank truck operator to ship 

the product to the ultimate consumer from the 

terminal. 

26 500 ppm LM diesel fuel is shipped by a short 

dedicated pipeline from a product terminal to a 

locomotive refueling facility. 

registering as a refiner and certifying 

that each batch of fuel complies with 

the fuel quality requirements for 500 

ppm LM diesel fuel, producers of 500 

ppm transmix distillate product would 

be required to submit a compliance plan 

for approval by EPA. This compliance 

plan would provide details on how the 

500 ppm LM would be segregated 

through to the ultimate consumer and 

its use limited to the legacy LM fleet. 

The plan would be required to identify 

the entities that would handle the fuel 

and the means of segregation. We 

believe that it is appropriate to limit the 

number of entities that would be 

allowed to handle the fuel between the 

producer and the ultimate consumer in 

order to facilitate EPA’s compliance 

assurance activities.24 Based on 

conversations with transmix processors, 

we believe that specifying that no more 

than 4 separate entities handle the fuel 

between the producer and the ultimate 

consumer would not hinder the ability 

to distribute the fuel.25 The plan would 

need to identify the ultimate consumers 

and include information on how the 

product would be prevented from being 

used in sulfur-sensitive equipment. 

We understand that some transmix 

processors currently rely on shipment 

by pipeline to reach the 500 ppm 

locomotive diesel market.26 As a result, 

the regulations allow 500 ppm LM to be 

shipped by pipeline provided that it 

does not come into contact with 

distillate products that have a sulfur 

content greater than 15 ppm. The 

compliance plan would need to include 

information from the pipeline operator 

regarding how this segregation would be 

maintained. Discussions with transmix 

processors indicate that this 

requirement would not limit their 

ability to ship 500 ppm LM by pipeline. 

If 500 ppm LM was shipped by pipeline 

abutting 15 ppm diesel, the volume of 

500 ppm LM delivered would likely be 

slightly greater than that which was 

introduced into the pipeline as a 

consequence of cutting the pipeline 

interface between the two fuel batches 

into the 500 ppm LM batch. This small 

increase in 500 ppm LM volume would 

be acceptable. 

To provide an additional safeguard to 

ensure that volume of 500 ppm LM 

diesel fuel does not swell 

inappropriately, the volume increase 

during any single pipeline shipment 

must be limited to 2 volume percent or 

less. This limitation on volume swell to 

2 volume percent or less is consistent 

with the limitation in 40 CFR 80.599 

(b)(5) regarding the allowed swell in 

volume during the shipment of highway 

diesel fuel for the purposes of the 

determination of compliance with the 

now expired volume balance 

requirements under 40 CFR 

80.598(b)(9)(vii)(B). Industry did not 

object to this requirement, and 

therefore, we believe that limiting the 

volume swell of 500 ppm LM diesel fuel 

during shipment by pipeline to 2 

volume percent or less should provide 

sufficient flexibility. 

Product transfer documents (PTDs) for 

500 ppm LM diesel are required to 

indicate that the fuel must be 

distributed in compliance with the 

approved compliance assurance plan. 

Entities in the distribution chain for 500 

ppm LM diesel fuel are required to keep 

records on the volumes of the 500 ppm 

that they receive from and deliver to 

each other entity. Based on input from 

fuel distributors, keeping these records 

will be a minimal additional burden, as 

discussed in section IV. Such entities 

are also required to keep records on how 

the fuel was transported and segregated. 

We would typically expect that the 

volumes of 500 ppm LM delivered 

would be equal to or less than those 

received unless shipment by pipeline 

occurred. Some minimal increase in 500 

ppm LM volume would be acceptable 

due to differences in temperature 

between when the shipped and received 

volumes were measured and interface 

cuts during shipment by pipeline. 

Entities that handle 500 ppm LM are 

required to calculate a balance of 500 

ppm LM received versus delivered/used 

on an annual basis. If the volume of fuel 

delivered/dispensed is greater than that 

received, EPA would expect that the 

records would indicate the cause. If an 

entity’s evaluation of their receipts and 

deliveries of 500 ppm LM fuel indicated 

noncompliance with the product 

segregation requirements, the custodian 

would be required to notify EPA. All 

entities in the 500 ppm LM distribution 

chain are required to maintain the 

specified records for 5 years and 

provide them to EPA upon request. 

IV. Summary and Analysis of 

Comments 

Need for the Proposed Flexibility 

Comments from transmix processors 

and pipeline operators support allowing 

500 ppm diesel fuel to be produced 

from transmix for use in older LM 

engines outside of the NEMA area and 

Alaska after 2014, and the expansion of 

this flexibility to within the NEMA area. 

These commenters stated that access to 

the 500 ppm LM market is critical due 

to the limited alternative markets for 

transmix distillate product and the need 

for such a market to maintain the flow 

of products through pipelines. Some 

transmix processors stated that the C3 

marine market is not a viable outlet for 

their distillate product due to the long 

shipping distances and limited ability of 

many C3 terminals to receive shipments 

by tank truck. Transmix processors and 

pipeline operators stated that there 

would be significant negative 

consequences if they were not allowed 

additional time to produce 500 ppm LM 

diesel fuel. Some transmix processors 

stated that their only alternative may be 

to shut down. In such a case, transmix 

would need to be trucked long distance 

to refineries for reprocessing. They also 

stated that pipelines could be in 

jeopardy of shutting down if transmix 

could not be cleared in a timely manner 

from storage facilities in the system. 

They noted that this could result in 

disruptions to the fuel supply. One 

pipeline operator and transmix 

processor stated that lack of access to 

the 500 ppm LM market for transmix 

distillate product could create barriers 

to the continued shipment of jet fuel 

(with sulfur content as high as 3000 

ppm) by pipeline. This is because jet 

fuel is the only high sulfur product 

shipped by the pipeline operator, and if 

the operator bars jet fuel from its system 

the pipeline’s transmix processors may 

be able to produce distillate product 

that meets a 15 ppm sulfur 

specification. If the pipeline operator 

were able to produce a 15 ppm sulfur 

transmix distillate product, the 

pipeline’s transmix processing facilities 

would no longer need to use the 500- 

ppm LM transmix flexibility, since the 

fuel could readily be sold into the 

highway and NRLM markets. The 

commenter stated, however, that 

eliminating jet fuel transportation by 

pipeline would increase transportrelated emissions, costs, and safety risks 

of alternative transportation of jet fuel. 

Response 

We agree with comments that 

transmix processors, pipelines, and the 

fuel distribution system as a whole need 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Rules and Regulations 75875 

additional time to produce 500 ppm LM 

diesel fuel from transmix. Providing 

additional time will help avoid 

potential fuel supply disruptions and 

reduce the overall burden of EPA’s 

diesel sulfur program as transmix 

processors and pipeline operators adjust 

to the continued reduction in outlets for 

>15ppm diesel fuel. 

The 500-ppm LM transmix flexibility 

that was originally included in the 

diesel program was necessary to allow 

the ULSD program to be feasibly 

implemented and enable the large 

national emissions reductions that it 

provided. The C3 final rule 

discontinued the 500-ppm LM 

flexibility because the information 

available to us at the time indicated that 

this would not have a significant 

negative impact on the handling of 

transmix in the distribution system. We 

also believed at the time that continuing 

the flexibility after 2014 would 

unacceptably increase compliance 

burdens given the introduction of C3 

marine fuel. Since that time, we 

received input from transmix processors 

and pipeline operators that 

discontinuing this flexibility could have 

substantial negative impacts on their 

operations and the fuel distribution 

system as a whole. We have also been 

able to develop an alternative 

enforcement mechanism contained in 

this final rule which can effectively 

control the production and distribution 

of 500 ppm LM from transmix while 

resulting in a minimal compliance 

burden. Had we had this information 

when the C3 rule was finalized, we 

would not have discontinued the 500- 

ppm transmix flexibility in the C3 

marine final rule. 

Expansion of the Proposed Flexibility to 

Within the NEMA Area 

Commenters who support expanding 

the transmix flexibility to the NEMA 

area stated that the ability to market 

transmix distillate product as heating oil 

is being progressively reduced by the 

adoption by states of a 15 ppm sulfur 

standard for heating oil. They claim that 

not allowing the use of 500 ppm LM in 

the NEMA area creates significant costs 

and transportation overhead, and 

complexity, as well as increased 

transportation-related emissions, to 

move the fuel outside the area. One 

pipeline stated that some of the largest 

volume processors are located in the 

NEMA area. 

Response 

When we finalized the original 

transmix flexibility, we concluded that 

the heating oil market would provide a 

sufficient outlet for transmix distillate 

product within the NEMA area. This 

allowed us to not extend the 500ppm 

LM transmix flexibility to within the 

NEMA area at the time, which allowed 

us to avoid imposing the marker 

provisions in the NEMA. Since that 

time, several states in the NEMA area 

have begun implementing a 15 ppm 

sulfur standard for heating oil, which is 

substantially limiting the ability to 

market transmix distillate product as 

heating oil. Given this development and 

the availability of an appropriate 

enforcement mechanism for use in the 

NEMA area, the same rationale that 

supports the need for reinstating the 

transmix flexibility inside the NEMA 

areas applies for expanding it outside of 

the NEMA area. Not only is it costly and 

inefficient to ship transmix outside of 

the NEMA area, but if no suitable 

market can be found the distribution of 

fuel to the NEMA area could be severely 

constrained. This would be particularly 

a concern during times when the market 

is already experiencing disruptions (e.g., 

following hurricanes). 

Duration of the Flexibility 

Commenters that supported the 

proposed flexibility stated that EPA 

should not set an expiration date for the 

flexibility at this time. However, the 

Engine Manufacturers Association 

(EMA) stated that EPA should commit 

to review whether to sunset the 500- 

ppm provisions as part of any future 

rulemaking associated with either 

heating oil or the C3 marine sulfur 

requirements. 

Response 

We acknowledge that it is unclear 

when turnover of the LM fleet to 

equipment that requires 15 ppm fuel 

will render the 500-ppm LM transmix 

flexibility no longer useful. We agree 

that EPA should consider removing the 

flexibility when it appears that it no 

longer serves a purpose. However, we 

do not believe that it is appropriate or 

necessary to commit to a specific 

timeline when such a review will take 

place. LM equipment lasts for many 

years, and the location of such older 

equipment in relation to the transmix 

facilities will have to factor into any 

consideration of whether the provision 

remains to be useful. EPA will continue 

to monitor fleet turn over and 

stakeholder perceptions regarding when 

it would be appropriate to retire the 

500-ppm LM transmix flexibility. 

Compliance Assurance 

Commenters that supported the 

proposal stated that the same 

enforcement mechanisms proposed for 

use outside the NEMA area and Alaska 

could be applied within the NEMA area. 

EMA stated that although they did not 

object to the adoption of the envisioned 

transmix flexibility, they have concerns 

about its implementation. EMA stated 

that it was concerned that its members 

could experience increased in-use 

emissions compliance liability 

associated with misfueling equipment 

which requires the use of 15 ppm sulfur 

diesel fuel. EMA stated that EPA should 

shield engine manufacturers, vehicles, 

and equipment that require 15 ppm 

diesel from potential liability resulting 

from defect reporting, emissions 

warranty obligations, and emissionrecall requirements arising from, or in 

connection with misfueling with 500 

ppm diesel. 

EMA stated that sufficient 

infrastructure must be in place to 

segregate 500 ppm from 15 ppm and 

sufficient training of parties that handle 

500 ppm must be conducted. EMA 

further stated that if the required 

infrastructure and training are not in 

place, then only 15 ppm diesel fuel 

should be allowed. EMA stated that 500 

ppm LM must be identified and tracked 

to help ensure that it is only used only 

in engines that do not require 15 ppm 

diesel fuel. EMA also stated that the 

SY–124 marker should be used to 

identify 500 ppm LM diesel to help 

prevent misfueling. EMA stated that 

EPA should eliminate the incentive to 

misfuel by eliminating the accessibility 

and/or potential financial benefit of 

using higher sulfur fuels. 

EMA stated that EPA should ensure 

adequate review and approval of 

transmix fuel distribution compliance 

plans to assure the availability of 15 

ppm diesel fuel for those engines that 

need it. EMA states that compliance 

plan approval documents should 

include information regarding 

enforcement penalties associated with 

misfueling. 

Response 

We believe that the enforcement 

mechanisms we are finalizing will 

provide an appropriate level of 

assurance that 500 ppm LM will not 

infiltrate the 15 ppm diesel fuel 

distribution system and not be used to 

misfuel engines which require the use of 

15 ppm fuel. The compliance plan 

required to be submitted by producers 

of 500 ppm LM will provide details on 

how 500 ppm LM will be segregated 

through to the ultimate consumer and 

that its use is limited to the legacy LM 

fleet. The compliance plan must 

demonstrate that the end users of 500 

ppm LM will also have access to 15 

ppm diesel fuel for use in those engines 


tkelley on DSK3SPTVN1PROD with 
75876 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Rules and Regulations 

27See Section III.C in today’s rule for a discussion 

of the emissions effects of the transmix flexibility. 

28Ault, A.P.; Gaston, C.J.; Wang, Y.; Dominguez, 

G.; Thiemens, M.H.; Prather, K.A. (2010) 

Characterization of the single particle mixing state 

of individual ship plume events measured at the 

Port of Los Angeles. Environ Sci Technol 44: 1954– 

1961. 

29 Vutukuru, S.; Dabdub, D. (2008) Modeling the 

effects of ship emissions on coastal air quality: A 

case study of southern California. Atmos Environ 

42: 3751–3764. 

30See Section III.C. of today’s notice for a 

discussion of the small emissions effects of the 

transmix flexibility in comparison to the emissions 

benefits from the ULSD program. 

that require the use of 15 ppm diesel 

fuel. 

The compliance plan is required to 

identify the entities that will handle the 

fuel and the means of segregation. The 

product transfer documents for 500 ppm 

LM that are required to be retained by 

all parties in the fuel distribution 

system will provide information on the 

use restrictions for the fuel. EPA 

approvals of compliance plans will 

include information regarding the 

enforcement penalties associated with 

misfueling. Given the rather limited and 

contained nature of the refueling 

infrastructure for LM applications in 

comparison to other highway and 

nonroad diesel applications, we believe 

these provisions will be entirely feasible 

and sufficient. 

We do not believe that requiring the 

use of the SY 124 maker in 500 ppm LM 

after 2014 would be useful in helping to 

prevent the misfueling of engines that 

require the use of 15 ppm diesel fuel. 

The SY124 marker is not visible in 

itself. Hence, its presence would not 

serve as a visible warning to help deter 

misfueling. In any event, parties do not 

typically see the fuel as it is being 

dispensed into a fuel tank. Given that an 

analytical test would be required to 

detect the marker, it is more appropriate 

to test the sulfur content of the fuel. The 

SY 124 marker requirements for 500 

ppm LM diesel fuel that were effective 

from June 1, 2010 through May 31, 

2012, were put in place to help ensure 

that 500 ppm LM from larger refiners 

did not inappropriately shift into the 

limited 500 ppm NR diesel fuel pool 

from small refiners, credit users, and 

transmix processors. These marker 

requirements were discontinued 

because 500 ppm LM could no longer be 

produced by larger refiners after May 

31, 2012. The marker requirements for 

500 ppm LM were never intended to 

help prevent the misfueling of LM 

equipment that requires the use of 15 

ppm diesel fuel with 500 ppm LM. 

We disagree with EMA’s comments 

that EPA should take additional actions 

to shield engine manufacturers, 

vehicles, and equipment that require 15 

ppm diesel from potential liability 

resulting from defect reporting, 

emissions warranty obligations, and 

emission-recall requirements arising 

from, or in connection with misfueling 

with 500 ppm diesel. EPA has a long 

history of including flexibilities in its 

diesel program to allow the limited use 

of higher sulfur fuels in older vehicles 

and equipment that are not sulfur 

sensitive. The mechanisms designed to 

assign culpability and the consequences 

for misfueling are long established and 

are functioning adequately. Hence, we 

believe that providing such a blanket 

waiver of liability is neither necessary 

nor appropriate. 

Emission Impacts 

Transmix processors stated that EPA 

significantly underestimated the 

potential increase in emissions from 

additional truck transport of transmix 

distillate product if the envisioned 

flexibility is not finalized. One transmix 

processor in the NEMA area stated that 

they are currently shipping their 

transmix distillate product over 800 

miles to find a market, greatly exceeding 

the 150 miles assumed by EPA in its 

analysis. They also noted the sulfur 

content for transmix distillate product is 

often in the range of 100 to 200 ppm, 

which is substantially lower that the 

assumed average sulfur content in EPA’s 

emissions analysis. They stated that 

EPA underestimated the environmental 

benefits of implementation the proposed 

transmix flexibility by at least 40%. 

A comment from a private individual 

was opposed to extending the date 

beyond which 500 ppm LM diesel fuel 

could be sold. This commenter stated 

that although the envisioned transmix 

flexibility might be environmentally 

beneficial on a national basis, the 

emissions would shift from one locale to 

another, affecting different people. The 

commenter stated that extending the use 

of 500 ppm LM would have substantial 

adverse health effects. The commenter 

stated that five minute exposures to 

sulfur dioxide, which is produced from 

sulfur in diesel when it is combusted, 

can trigger asthma attacks, which can be 

fatal. In addition, the commenter stated 

that relatively short term exposures to 

PM2.5, which is also produced from 

combustion of diesel, can have adverse 

health impacts including death. 

Response 

The Agency is very concerned about 

the localized impacts of emissions. 

However, we do not believe that there 

are potential localized impacts from the 

transmix flexibility that warrant not 

finalizing this action. In addition, not 

finalizing this action would subject the 

fuel distribution system to the 

disruption and burden resulting from 

the absence of sufficient flexibility for 

disposal of diesel transmix. The 

commenter states that the transmix 

flexibility will result in a shift of 

emissions from one area to another. 

Under the scenario we evaluated, we 

note that NOX, VOC, PM, SO2, CO, and 

toxics emissions will be avoided on our 

roadways by avoiding the need to 

transport transmix distillate product by 

truck to distant markets or transmix to 

refinery processing facilities, while at 

the same time sulfate PM and SO2

emissions may be increased slightly 

from the locomotive and marine 

applications along our rail lines and 

waterways where the transmix distillate 

is burned.27 In the case of both the small 

emissions increases and decreases, these 

emissions impacts will be distributed 

over the broad areas where such 

equipment operates. The small changes 

in emission levels are expected to have 

very minimal effect on pollutant 

concentrations in any particular area. 

The increased concentrations resulting 

from these changes are likely to be 

overwhelmingly offset by the significant 

decreases in pollutant emissions (as a 

result of the ULSD program) in areas 

dominated by diesel engine sources, 

such as locations downwind of marine 

ports and rail lines. Studies in those 

locations report peak SO2

concentrations below the National 

Ambient Air Quality Standard for SO2

and well below the level at which 

respiratory symptoms are observed in 

some individuals with asthma.28, 29

Furthermore, the diesel transmix 

flexibility, as in the original Nonroad, 

Locomotive, and Marine diesel final 

rulemaking was necessary to allow the 

distribution system to function while 

providing ULSD product. Without it the 

emission benefits of the ULSD program 

could not be achieved. When the diesel 

transmix provisions are viewed in light 

of the broader ULSD regulations of 

which they are a part, EPA is confident 

that any small increase in local SO2 or 

PM emissions from the burning of 

transmix will be more than offset by the 

overall emissions reductions resulting 

from EPA’s ULSD program.30 Thus, 

even in areas where this transmix 

distillate product will be burned, the 

clean diesel program will be providing 

very large emission benefits. As the 

locomotive and marine engines fleet 

progressively turns over to engines that 

require the use of 15 ppm diesel fuel, 

the use of 500 ppm LM will gradually 

diminish and eventually disappear. EPA 

intends to evaluate in a later action 


tkelley on DSK3SPTVN1PROD with 
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when the 500 ppm LM flexibility is no 

longer useful and should be retired. 

The generation of transmix is a 

necessary consequence of the 

transportation of the cleaner fuel 

required by those regulations within the 

current fuel transportation system, and 

allowing it to be utilized in nearby 

locomotive and marine diesel 

applications is preferable to subjecting 

the market to supply disruptions or at 

a minimum requiring further 

transportation of fuel through methods 

that would increase transportationrelated emissions. 

Due Process 

A private individual stated that 

although extending the date beyond 

which 500 ppm LM diesel fuel could be 

sold may be environmentally beneficial 

on a national basis, the shift of 

emissions from one locale to another 

associated with the flexibility means 

that the pollution will affect different 

people. The commenter stated that such 

a shift in emissions is unconstitutional, 

claiming it violates both substantive and 

procedural due process. The commenter 

stated that procedural due process 

requires more notice than a direct final 

rule in the Federal Register, which the 

commenter states almost no one reads. 

Moreover, the commenter states that 

substantive due process does not allow 

the federal government to authorize the 

killing of U.S. citizens for the 

‘‘convenience’’ of a small group of 

corporations that own transmix 

processing facilities. 

Response 

We disagree with the comment that 

EPA’s action is not constitutional by 

violating substantive due process. The 

commenter makes no attempt to justify 

the statement that EPA is violating 

substantive due process, and provides 

no legal support for such a statement. 

EPA is acting well within its authority 

under Title II of the Clean Air Act to 

develop and implement a diesel fuel 

program. Obviously, EPA is not 

authorizing the killing of U.S. citizens, 

and, as discussed above, the clean diesel 

program, which this final rule supports, 

actually reduces harmful emissions 

from diesel engines. 

We further disagree that EPA has not 

provided sufficient procedural due 

process. EPA published a proposed rule 

in parallel with the direct final rule that 

was withdrawn due to a negative 

comment. EPA’s publication of 

proposed rules in the Federal Register 

follows the procedure laid out in the 

Clean Air Act and provides adequate 

legal notice under the Federal Register 

Act. Publication of proposed EPA rules 

in the Federal Register has been the 

normal method of providing notice for 

decades, and those wishing to know of 

EPA proposals are best served if EPA 

continues to use this approach 

consistently. EPA is taking this final 

action based on our consideration of the 

comments received on that proposed 

rule. 

Effect of Rule on Analyses Under Other 

Laws 

A private individual stated that the 

proposed regulatory change would 

adversely impact many analyses under 

the National Environmental Policy Act 

(NEPA), State NEPAs, the Endangered 

Species Act, the National Historic 

Preservation Act, and various State laws 

which have assumed the use of 15 ppm 

sulfur LM diesel fuel. The comment 

claims that many of these analyses 

assume that 15 ppm sulfur will be used 

in locomotives and marine engines 

outside of NEMA and that the analyses 

will be incorrect. As an example, the 

commenter states that the 

Environmental Report for the proposed 

Amber Energy coal transferring facility 

at Port Morrow, Oregon, assumes that 

the locomotives and tugs will use 15 

ppm sulfur diesel fuel. The commenter 

states that if EPA approves this rule, 

that analysis will be wrong. 

Another commenter representing 

transmix facilities, responding to the 

previous commenter, stated that the 

previous comment was general and 

unsupported and pointed to no specific 

analysis where 15 ppm sulfur is 

assumed, nor did it quantify any net 

reductions in air pollution that would 

occur. The commenter also stated that 

the previous commenter did not 

reference analytical assumptions or 

whether any analysis is based on use of 

15 ppm sulfur in engines not otherwise 

required to use such fuel. The 

commenter notes that CAA rulemakings 

are exempt from NEPA and states that 

the previous commenter does not 

identify a specific nexus between the 

regulatory action and the Endangered 

Species Act or the National Historic 

Preservation Act. The commenter also 

states that in the specific example 

provided in the earlier comment, the 

facility mentioned is currently at the 

proposal stage and a decision has been 

made to conduct an Environmental 

Assessment for the facility under NEPA. 

The commenter stated that they believe 

that no final regulatory analysis has 

been completed that is dependent on 

the use of 15 ppm sulfur diesel. 

Response 

EPA believes it is unlikely that the 

use of limited volumes of 500 ppm 

diesel fuel produced from transmix 

would have a substantial effect on 

NEPA or other analyses, or that it would 

even be possible to predict what 

volumes of such fuel would be used in 

a specific local area, for the purposes of 

such an analysis. As discussed in 

section III.C., EPA’s analysis of the 

potential emission impacts nationwide 

shows no significant impacts. Given the 

relatively small volume of diesel fuel 

produced by transmix compared to the 

total volume of diesel fuel used in 

locomotives or marine engines, it is 

unlikely that any single NEPA analysis 

would reach different conclusions. 

However, EPA notes that both NEPA 

and the Endangered Species Act, at a 

minimum, provide for reconsideration 

of significant new information where 

appropriate. To the extent that any 

analysis may have assumed the use of 

15 ppm sulfur LM diesel fuel, it may be 

appropriate to review the analysis to 

determine whether any effect resulting 

from potential use of limited volumes of 

500 ppm diesel fuel produced from 

transmix should be considered. As the 

second commenter notes, it is not clear 

that any final regulatory analysis has 

depended on use of 15 ppm LM diesel 

fuel and would be affected by this final 

rule. The use of such fuel may occur for 

reasons unrelated to this rule, such as 

an agreement that newer locomotives 

would be used in connection with the 

project. 

EPA also agrees with the second 

commenter that actions under the CAA 

are not subject to NEPA and that the 

initial commenter has provided no 

context or support for his allegations 

regarding any nexus between this action 

and analysis under the NEPA, the 

Endangered Species Act, the National 

Historic Preservation Act, or the 

‘‘various State laws’’ referred to without 

citation by that commenter. In any case, 

as EPA notes above, the factual 

circumstances for this rule do not 

indicate any significant effect on any air 

pollution concentrations, and the 

commenter provides no information 

regarding the effect of this rule on 

interests affected by the other statutes. 

Regulations Related to the Production of 

500 ppm From Transmix by Pipeline 

Operators 

A pipeline operator stated that the 

current rulemaking does not provide 

certainty that pipelines can produce 500 

ppm LM diesel and distribute that fuel 

to their customers without requiring the 

transmix to be moved to or through 

transmix processor facilities. 


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75878 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Rules and Regulations 

Response 

Pipeline processors produce 500 ppm 

LM from the interface mixture between 

batches of ULSD and higher sulfur 

distillates (i.e. jet fuel and heating oil). 

The production of such 500 ppm fuel by 

pipeline operators does not require the 

use of a distillation tower used by 

transmix processors to separate gasoline 

from distillate fuel. 

We agree that the regulations should 

be amended to provide clarity that 

pipeline operators as well as transmix 

processors can produce 500 ppm LM 

from transmix. This was EPA’s intent 

when the original 500 ppm LM transmix 

flexibility was finalized in the nonroad 

diesel rulemaking and has been EPA’s 

policy since. However, the regulatory 

text was primarily focused on the 

production of 500 ppm LM by transmix 

processors. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order (EO) 12866 

(58 FR 51735 (October 4, 1993)), this 

action is not a ‘‘significant regulatory 

action.’’ Accordingly, the Office of 

Management and Budget (OMB) waived 

review of this action under Executive 

Orders 12866 and 13563 (76 FR 3821 

(January 21, 2011)). 

B. Paperwork Reduction Act 

The information collection 

requirements in this rule will be 

submitted for approval to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. The information collection 

requirements are not enforceable until 

OMB approves them. 

The reporting requirements apply to 

transmix processors and pipeline 

operators who produce diesel fuel from 

transmix (all of whom are refiners) and 

other parties (such as carriers or 

distributors) in the distribution chain 

who handle diesel fuel produced from 

transmix. The collected data will permit 

EPA to: (1) Process compliance plans 

from producers of diesel fuel from 

transmix; and (2) Ensure that diesel fuel 

made from transmix meets the standards 

required under the regulations at 40 

CFR Part 80, and that the associated 

benefits to human health and the 

environment are realized. We estimate 

that 25 producers of diesel fuel from 

transmix and 150 other parties may be 

subject to the proposed information 

collection. We estimate an annual 

reporting burden of 28 hours per 

producer of diesel fuel from transmix 

(respondent) and 8 hours per other party 

(respondent); considering all 

respondents (producers of diesel fuel 

from transmix and other parties) who 

would be subject to the proposed 

information collection, the annual 

reporting burden, per respondent, 

would be 11 hours. Burden means the 

total time, effort, or financial resources 

expended by persons to generate, 

maintain, retain, or disclose or provide 

information to or for a Federal agency. 

This includes the time needed to review 

the instructions; develop, acquire, 

install, and utilize technology and 

systems for the purpose of collecting, 

validating, and verifying information, 

processing and maintaining 

information, and disclosing and 

providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transit or otherwise 

disclose the information. Burden is as 

defined at 5 CFR 1320.3(b). 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. When 

this ICR is approved by OMB, the 

Agency will publish a technical 

amendment to 40 CFR part 9 in the 

Federal Register to display the OMB 

control number for the approved 

information collection requirements 

contained in this final rule. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this action on small entities, 

I certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

This final rule will not impose any new 

requirements on small entities. The 

amendments to the diesel transmix 

provisions would lessen the regulatory 

burden on all affected transmix 

processors and provide a source of 

lower cost locomotive and marine diesel 

fuel to consumers. 

D. Unfunded Mandates Reform Act 

This rule does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for State, local, 

and tribal governments, in the aggregate, 

or the private sector in any one year. We 

have determined that this action will 

not result in expenditures of $100 

million or more for the above parties 

and thus, this rule is not subject to the 

requirements of sections 202 or 205 of 

the Unfunded Mandates Reform Act 

(UMRA). 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. It 

only applies to diesel fuel producers, 

distributors, and marketers and makes 

relatively minor modifications to the 

diesel sulfur regulations. 

E. Executive Order 13132 (Federalism) 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This action only 

applies to diesel fuel producers, 

distributors, and marketers and makes 

relatively minor modifications to the 

diesel sulfur regulations. Thus, 

Executive Order 13132 does not apply 

to this action. 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This rule does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249 (November 9, 

2000)). It applies to diesel fuel 

producers, distributors, and marketers. 

This action makes relatively minor 

modifications to the diesel sulfur 

regulations, and does not impose any 


tkelley on DSK3SPTVN1PROD with 
Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Rules and Regulations 75879 

enforceable duties on communities of 

Indian tribal governments. Thus, 

Executive Order 13175 does not apply 

to this action. 

G. Executive Order 13045: Protection of 

Children from Environmental Health 

Risks and Safety Risks 

EPA interprets EO 13045 (62 FR 

19885 (April 23, 1997)) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it does not establish 

an environmental standard intended to 

mitigate health or safety risks. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. § 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so will be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., materials 

specifications, test methods, sampling 

procedures, and business practices) that 

are developed or adopted by voluntary 

consensus standards bodies. NTTAA 

directs EPA to provide Congress, 

through OMB, explanations when the 

Agency decides not to use available and 

applicable voluntary consensus 

standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this final 

rule will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations. In the case of 

both the small emissions increases and 

decreases, these emissions impacts will 

be distributed over the broad areas 

where such equipment operates. The 

small changes in emission levels are 

expected to have very minimal effect on 

pollutant concentrations in any 

particular area. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et. seq., as added by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

VI. Statutory Provisions and Legal 

Authority 

Statutory authority for the rule 

finalized today can be found in Section 

211 of the Clean Air Act, 42 U.S.C. 

7545. Additional support for the 

procedural and compliance related 

aspects of today’s rule, including the 

recordkeeping requirements, come from 

sections 114, 208, and 301(a) of the 

Clean Air Act, 42 U.S.C. 7414, 7542, and 

7601(a). 

List of Subjects in 40 CFR Part 80 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Confidential 

business information, Diesel Fuel, 

Transmix, Energy, Labeling, Motor 

vehicle pollution, Penalties, Petroleum, 

Reporting and recordkeeping 

requirements. 

Dated: December 14, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons set forth in the 

preamble, 40 CFR part 80 is amended as 

follows: 

PART 80—REGULATION OF FUELS 

AND FUEL ADDITIVES 

■ 1. The authority citation for part 80 is 

revised to read as follows: 

Authority: 42 U.S.C. 7414, 7521, 7542, 

7545, and 7601(a). 

Subpart I—Motor Vehicle Diesel Fuel; 

Nonroad, Locomotive, and Marine 

Diesel Fuel; and ECA Marine Fuel 

■ 2. Section 80.511 is amended by 

revising paragraph (b)(4) to read as 

follows: 

§ 80.511 What are the per-gallon and 

marker requirements that apply to NRLM 

diesel fuel, ECA marine fuel, and heating oil 

downstream of the refiner or importer? 

* * * * * 

(b) * * * 

(4) Except as provided in paragraphs 

(b)(5) through (8) of this section, the pergallon sulfur standard of § 80.510(c) 

shall apply to all NRLM diesel fuel 

beginning August 1, 2014 for all 

downstream locations other than retail 

outlets or wholesale purchaserconsumer facilities, shall apply to all 

NRLM diesel fuel beginning October 1, 

2014 for retail outlets and wholesale 

purchaser-consumer facilities, and shall 

apply to all NRLM diesel fuel beginning 

December 1, 2014 for all locations. This 

paragraph (b)(4) does not apply to LM 

diesel fuel produced from transmix that 

is sold or intended for sale in areas 

other than in the area listed in 

§ 80.510(g)(2) (i.e. Alaska), as provided 

by § 80.513(f). 

* * * * * 

■ 3. Section 80.513 is amended as 

follows: 

■ a. By revising the section heading. 

■ b. By revising the introductory text. 

■ c. By revising paragraphs (d) and (e). 

■ d. By adding new paragraphs (f), (g), 

and (h). 

§ 80.513 What provisions apply to 

transmix processing facilities and pipelines 

that produce diesel fuel from pipeline 

interface? 

For purposes of this section, transmix 

means a mixture of finished fuels, such 

as pipeline interface, that no longer 

meets the specifications for a fuel that 

can be used or sold without further 

processing or handling. For the 

purposes of this section, pipeline 

interface means the mixture between 

different fuels that abut each other 

during shipment by pipeline. This 

section applies to refineries (or other 

facilities) that produce diesel fuel from 

transmix by distillation or other refining 

processes but do not produce diesel fuel 

by processing crude oil and to pipelines 

that produce diesel fuel from transmix. 


tkelley on DSK3SPTVN1PROD with 
75880 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Rules and Regulations 

This section only applies to the volume 

of diesel fuel produced from transmix 

by a transmix processor using these 

processes, and to the diesel fuel volume 

produced by a pipeline operator from 

transmix. This section does not apply to 

any diesel fuel volume produced by the 

blending of blendstocks. 

* * * * * 

(d) From June 1, 2010 through May 

31, 2014, NRLM diesel fuel produced by 

a transmix processor or a pipeline 

facility that produces diesel fuel from 

transmix is subject to the standards 

under § 80.510(a). This paragraph (d) 

does not apply to NRLM diesel fuel that 

is sold or intended for sale in the areas 

listed in § 80.510(g)(1) or (g)(2). 

(e) From June 1, 2014 and beyond, 

NRLM diesel fuel produced by a 

transmix processor and a pipeline 

facility that produces diesel fuel from 

transmix is subject to the standards of 

§ 80.510(c). 

(f) From February 25, 2013 through 

May 31, 2014, LM diesel fuel produced 

by a transmix processor or a pipeline 

facility that produces diesel fuel from 

transmix that is sold or intended for sale 

in the area listed in § 80.510(g)(1) is 

subject to the standards of § 80.510(a) 

provided that the conditions in 

paragraph (h) of this section are 

satisfied. Diesel fuel produced from 

transmix that does not meet the 

conditions in paragraph (h) of this 

section is subject to the sulfur standard 

in § 80.510(c). 

(g) Beginning June 1, 2014, LM diesel 

fuel produced by a transmix processor 

or a pipeline facility that produces 

diesel fuel from transmix is subject to 

the sulfur standard of § 80.510(a), 

provided that the conditions in 

paragraph (h) of this section are 

satisfied. Diesel fuel produced from 

transmix that does not meet the 

conditions in paragraph (h) of this 

section is subject to the sulfur standard 

in § 80.510(c). 

(h) The following conditions must be 

satisfied to allow the production of 500 

ppm LM under paragraphs (f) and (g) of 

this section. 

(1) The fuel must be produced from 

transmix. 

(2) The fuel must not be sold or 

intended for sale in the area listed in 

§ 80.510(g)(2) (i.e., Alaska). 

(3) A facility producing 500 ppm LM 

diesel fuel must obtain approval from 

the Administrator for a compliance 

plan. The compliance plan must detail 

how the facility will segregate any 500 

ppm LM diesel fuel produced subject to 

the standards under § 80.510(a) from the 

producer through to the ultimate 

consumer from fuel having other 

designations. The compliance plan must 

demonstrate that the end users of 500 

ppm LM will also have access to 15 

ppm diesel fuel for use in those engines 

that require the use of 15 ppm diesel 

fuel. The compliance plan must identify 

the entities that handle the 500 ppm LM 

through to the ultimate consumer. No 

more than 4 separate entities shall 

handle the 500 ppm LM between the 

producer and the ultimate consumer. 

The compliance plan must also identify 

all ultimate consumers to whom the 

refiner supplies the 500 ppm LM diesel 

fuel. The compliance plan must detail 

how misfueling of 500 ppm LM into 

vehicles or equipment that require the 

use of 15 ppm diesel fuel will be 

prevented. 

(i) Producers of 500 ppm LM diesel 

fuel must be registered with EPA under 

§ 80.597 prior to the distribution of any 

500 ppm LM diesel fuel. 

(ii) Producers of 500 ppm LM must 

initiate a PTD that meets the 

requirements in paragraph (h)(3)(iii) of 

this section. 

(iii) All transfers of 500 ppm LM 

diesel fuel must be accompanied by a 

PTD that clearly and accurately states 

the fuel designation; the PTD must also 

meet all other requirements of § 80.590. 

(iv) Batches of 500 ppm LM may be 

shipped by pipeline provided that such 

batches do not come into physical 

contact in the pipeline with batches of 

other distillate fuel products that have 

a sulfur content greater than 15 ppm. 

(v) The volume of 500 ppm LM 

shipped via pipeline under paragraph 

(h)(3)(iv) of this section may swell by no 

more than 2% upon delivery to the next 

party. Such a volume increase may only 

be due to volume swell due to 

temperature differences when the 

volume was measured or due to normal 

pipeline interface cutting practices 

notwithstanding the requirement under 

paragraph (h)(3)(iv) of this section. 

(vi) Entities that handle 500 ppm LM 

must calculate the balance of 500 ppm 

LM received versus the volume 

delivered and used on an annual basis. 

(vii) The records required in this 

section must be maintained for five 

years, by each entity that handles 500 

ppm LM and be made available to EPA 

upon request. 

(4) All parties that take custody of 500 

ppm LM must segregate the product 

from other fuels and observe the other 

requirements in the compliance plan 

approved by EPA pursuant to paragraph 

(h)(3) of this section. 

■ 4. Section 80.572 is amended by 

revising the section heading and 

paragraph (d) to read as follows: 

§ 80.572 What labeling requirements apply 

to retailers and wholesale purchaserconsumers of Motor Vehicle, NR, LM and 

NRLM diesel fuel and heating oil beginning 

June 1, 2010? 

* * * * * 

(d) From June 1, 2010 through 

September 30, 2012 and from February 

25, 2013 and thereafter, for pumps 

dispensing LM diesel fuel subject to the 

500 ppm sulfur standard of § 80.510(a): 

LOW SULFUR LOCOMOTIVE AND 

MARINE DIESEL FUEL (500 ppm Sulfur 

Maximum) 

WARNING 

Federal law prohibits use in nonroad 

engines or in highway vehicles or 

engines. 

* * * * * 

■ 5. Section 80.597 is amended by 

adding paragraph (d)(3)(ii) to read as 

follows: 

§ 80.597 What are the registration 

requirements? 

* * * * * 

(d) * * * 

(3) * * * 

(ii) Fuel designated as 500 ppm LM 

diesel fuel. 

* * * * * 

[FR Doc. 2012–30960 Filed 12–21–12; 4:15 pm] 

BILLING CODE P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

42 CFR Part 70 

[Docket No. CDC–2012–0016] 

RIN 0920–AA22 

Control of Communicable Diseases: 

Interstate; Scope and Definitions 

AGENCY: Centers for Disease Control and 

Prevention (HHS/CDC), Department of 

Health and Human Services (HHS). 

ACTION: Direct Final Rule and request for 

comments. 

SUMMARY: In this Direct Final Rule, the 

Centers for Disease Control and 

Prevention (CDC), located within the 

Department of Health and Human 

Services (HHS) is proposing to update 

the definitions for interstate quarantine 

regulations to reflect modern 

terminology and plain language used by 

private industry and public health 

partners. These updates will not affect 

current practices. As part of the update, 

we are updating two existing definitions 

and adding eight new definitions to 

clarify existing provisions, as well as 

updating regulations to reflect the most 

recent Executive Order addressing 

quarantinable communicable diseases. 


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