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OAR Box 1772 

Prepped by Charmelle Mathews 

Document Number: 

V-A-01 

Docket Number: 

A-86-03 

Printed 12/2/2008 9:45:12 AM Sheet 43 of 117 
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ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Parts 80 and 86 

[AMS-FRL- ] 

Regulation of Fuels and Fuel 

Additives: Fuel Quality Regulations for 

Highway Diesel Fuel Sold in 1993 and 

Later Calendar Years 

A-8fe-63 

3Z.--.-.-D-*-

AGENCY: Environmental Protection Agency. 

ACTION: Final Rule, 

SUMMARY: Today's Final Rule implements a new national 

program of diesel fuel quality control, completing action 

on a recent EPA proposal (54 FR 35276, August 24, 1989). 

This action requires that refiners reduce the sulfur 

content of on-highway diesel fuel from current average 

levels of approximately 0.25 weight percent to levels not 

exceeding 0.05 weight percent. This action also requires 

that on-highway diesel fuel have a minimum cetane index 

specification of 40 (or meet a maximum aromatics level of 

35 percent). Both requirements will take effect at all 
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points throughout the distribution system on 

October 1, 1993. Special provisions providing for a 

phasing-in of these requirements for small domestic 

refineries are also included. 

Certification diesel fuel will also be changed 

beginning with both the 1991 and 1994 model years to 

reflect the above mentioned changes in commercial diesel 

fuel quality. Vehicles sold in model years 1991 through 

1993 will be certified using 0.10 weight percent sulfur 

fuel, reflecting the average fuel sulfur level expected to 

be used over these vehicles' useful lives. Beginning with 

the 1994 model year, the certification fuel sulfur level 

would be that of commercial diesel fuel (i.e., not to 

exceed 0.05 weight percent) and a minimum cetane index 

value of 40 will be established. 

DATES: This Final Rule is effective on [insert date 30 

days following publication]. The incorporation by 

reference of certain publications listed in the regulations 

is approved by the Director of the Federal Register as 

of 

Judicial Review - Under section 307(b)(1) of the Clean Air 

Act, EPA hereby finds that these regulations are of 

national applicability. Accordingly, judicial review of 

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this action is available only by filing a petition for 

review in the United States Court of Appeals for the 

District of Columbia Circuit within 60 days of 

publication. Under section 307(b)(2) of the Act, the 

requirements which are the subject of today's notice may 

not be challenged later in judicial proceedings brought by 

EPA to enforce these requirements. 

ADDRESSES: Material relevant to this final rule is 

contained in Public Docket No. A-86-03. The docket is 

located in Room M-1500, Waterside Mall (ground floor), U.S. 

Environmental Protection Agency, 401 M Street SW, 

Washington, DC 20460. The docket may be inspected between 

8 a.m. and 3 p.m. Monday through Friday. A reasonable fee 

may be charged by EPA for copying docket materials. 

FOR FURTHER INFORMATION CONTACT: 

Mr. William Damico 

Emission Control Technology Division 

U.S. Environmental Protection Agency 

2565 Plymouth Road 

Ann Arbor, MI 48105 

Telephone (313) 668-4278 

SUPPLEMENTARY INFORMATION: 

I. Background and Review of Proposal 

In March of 1985, EPA promulgated particulate emission 

standards of 0.25 gram per brake horsepower-hour (g/BHP-hr) 

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for heavy-duty diesel trucks (greater than 8,500 lbs.) and 

0.10 g/BHP-hr for urban buses, effective in the 1991 model 

year; and 0.10 g/BHP-hr for heavy-duty diesel trucks 

beginning in the 1994 model year (50 FR 10606, March 15, 

1985). During the rulemaking process, engine manufacturers 

expressed concern that sulfur in diesel fuel could either 

plug the trap-oxidizers that EPA projected would be needed 

to meet the proposed particulate standards or generate 

significant particulate sulfate emissions that would make 

it difficult to meet the standards. Thus, commenters 

recommended that EPA regulate the sulfur content of diesel 

fuel. In the preamble to the final rule, EPA responded 

that not enough was then known about the effect of diesel 

fuel sulfur on traps or particulate emissions to take 

regulatory action at that time, but that it would continue 

to study the issue and, if warranted, consider regulating 

diesel fuel sulfur content. 

In June of 1986, EPA released for public comment a 

study prepared under contract for EPA by Energy and 

Resource Consultants, Inc. (ERC) and Sobotka and Company, 

Inc. (SCI), entitled "Diesel Fuel Quality Effects on 

Emissions, Durability, Performance, and Costs" (51 FR 

23437, June 27, 1986). In addition to showing that a 

reduction in diesel fuel sulfur content would directly 

reduce S02 and sulfate particulate emissions, this study 

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showed that reducing fuel aromatics would reduce 

carbonaceous and organic particulate. Also, a 30 percent 

extension of engine life was estimated due to reduced 

engine wear with low sulfur fuel. The cost of reducing the 

fuel sulfur level to 0.05 weight percent was estimated to 

be 1.2 cents per gallon. 

Further studies of the refinery cost and engine life 

issues were undertaken and a report by Southwest Research 

Institute (SwRI) entitled "Study of the Effects of Reduced 

Diesel Fuel Sulfur Content on Engine Wear" as well as a 

report by Bonner and Moore Consultants, Inc. (B&M) entitled 

"A Study on Restriction of Sulfur and Aromatics Content on 

Highway Diesel Fuel" were released. The SwRI report 

further substantiated the possibility of reduced engine 

wear with lower sulfur fuel. The B&M report assessed the 

costs of controlling sulfur to 0.05 weight percent, 

controlling aromatics to 20 volume percent, and controlling 

both simultaneously. Also assessed in the B&M report was 

the effect of the degree of segregation of heating oil and 

"highway" diesel fuel on control cost. 

Subsequent to these studies, in a landmark initiative, 

members of the diesel engine manufacturing and petroleum 

refining industries submitted a joint proposal for 

on-highway diesel fuel modification to EPA. This proposal 

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included a maximum sulfur level of 0.05 weight percent and 

a minimum cetane index of 40 (as a means of capping 

aromatics at current levels) to be implemented by 

October 1, 1993. Also included was a provision to allow 

engine certification on low sulfur fuel beginning with the 

1991 model year to reflect upcoming changes in commercial 

fuel. 

All of this activity culminated in the publication of 

a Notice of Proposed Rulemaking (NPRM) pertaining to 

on-highway diesel fuel quality (54 FR 35276, August 24, 

1989). This proposal included a maximum sulfur content of 

0.05 weight percent and a minimum cetane index of 40 for 

all on-highway diesel fuel beginning on October 1, 1993. 

The control options considered; cost, benefits, and 

cost-effectiveness of fuel control; leadtime; enforcement 

issues; and certification fuel were all discussed in the 

NPRM preamble as summarized below. These topics were 

evaluated in detail in the Draft Regulatory Impact Analysis 

(Draft RIA) which was published in support of the NPRM. 

A variety of control options were considered in the 

rulemaking development process. Sulfur control of varying 

levels down to 0.05 weight percent were considered with no 

change in aromatics. Additionally, aromatics-control 

options ranging from no control to a reduction to 20 volume 

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percent were evaluated. Based upon analyses of costs, 

benefits and cost effectiveness, the Agency decided to 

propose sulfur control to 0.05 weight percent. Significant 

aromatics control below current levels was not proposed 

since the analysis of the benefits of associated 

particulate reductions, which did not include cancer 

benefits, did not demonstrate the cost effectiveness, from 

a national perspective, of reducing the content of 

aromatics in diesel fuel at this time. EPA proposed 

instead to cap aromatics at current levels so as to prevent 

a rise in the future. This was proposed to be done by 

establishing a minimum cetane index specification of 40. 

The cost of controlling diesel-fuel quality is 

dependent on a number of things, most notable the degree to 

which segregation would occur between on-highway and 

off-highway diesel fuel and the amount of desulfurization 

equipment currently in place in the refining industry. In 

the NPRM the cost of sulfur control (to 0.05 weight 

percent) was projected to be about 2.3 cents per gallon at 

current rates of segregation and 1.8 cents per gallon for 

the complete (100 percent) segregation scenario. These 

figures represent annual costs to the refining industry of 

$830 million and $360 million, respectively. 

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There are a number of benefits (both financial and 

environmental) which can be attributed to diesel fuel 

sulfur control. The first area of benefits is in exhaust 

aftertreatment technology. The 0.1 g/BHP-hr particulate 

standard promulgated for heavy-duty diesel vehicles for the 

1994 model year will likely necessitate the use of exhaust 

aftertreatment devices. Reductions in fuel sulfur would 

result in small reductions in engine-out particulate, 

making it somewhat easier to comply with the stringent 1994 

particulate standard. Additionally, the use of some 

aftertreatment devices such as .flow-through catalysts and 

catalyzed traps is effectively prohibited by current fuel 

sulfur levels as these devices tend to generate sulfate 

particulate from the fuel sulfur. Reducing fuel sulfur for 

1994 was projected to result in per vehicle fuel economy, 

hardware, and maintenance cost savings of $324 for light 

heavy-duty diesels (LHDDEs), $651 for medium heavy-duty 

diesels (MHDDEs), $752 for heavy heavy-duty diesels 

(HHDDEs) and $700 for urban buses. 

The second area of benefits from fuel quality control 

was that of reduced engine wear with low sulfur fuel. 

Depending upon the method used to evaluate these benefits, 

and the vehicle class evaluated, EPA estimated cost savings 

from sulfur control ranging from 0.80/gal to 30-^/gal. 

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The third area of benefits attributed to fuel quality 

control was that of emissions and air quality. Substantial 

reductions in S02 and particulate matter emissions beyond 

the reductions resulting from the 1994 0.1 g/BHP-hr 

particulate standard were projected to result from fuel 

sulfur control. 

Additionally, some reductions of HC and CO were 

expected as an. indirect result due to the changes in 

aftertreatment technology strategies used by the engine 

manufacturers to comply with the 1994 particulate 

standards. The reductions estimated in the NPRM are shown 

in Table 1. 

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Table 1 

Projected Nationwide Emission Reductions 

Due to Diesel Fuel Sulfur Control 

[1000 tons/yr] 

p.11 

Pollutant 1995[1] 2015[1] 

Total 

Particulate 

Directly 

Emitted 

Indirect 

so2 

HC 

CO 

99-196 (19%-38%)£23 

10-29 (3%-10%) 

89-167 (43%-80%) 

310-580 (43%-80%) 

14 3% C3 3 

141 8% 

159-321 (23%-46%) 

3-35 (1%-10%) 

156-286 (44%-80%) 

542-993 (44%-80%) 

88 12% 

916 27% 

[1] Lower end of range result of 100 percent distillate 

segregation, upper end result of current segregation 

practices. 

[2] Figures in parenthesis represent percent reduction 

from baseline emissions of number two fuel oil use. 

[3] Figures represent percent reduction from baseline for 

mobile sources. 

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The resulting air quality impacts of fuel control were 

also analyzed in the NPRM. It was projected that by the year 

2015, in large metropolitan areas (greater than 1,000,000 

residents), sulfur control would reduce annual arithmetic mean 

concentrations of particulate by 2.3 - 6.3 Pg/m3 (in 

3 

comparison to current levels of 18 - 90 Pg/m ) and SO, by 

7.0 - 16.7 Pg/nu (in comparison to current levels of up to 

3 

67 Pg/m ). Air guality benefits in the areas of health 

effects and visibility were also described. 

The final environmental analysis does not contain an 

assessment of the potential for affecting cancer risks by 

regulating diesel fuel quality. The Draft Regulatory Impact 

Analysis did contain a preliminary analysis; however, this 

analysis has been removed due to significant errors found in 

the methodology. The effect of diesel fuel quality on cancer 

risks will be addressed by the Agency in a study of the health 

effects and control costs of fuel related air toxics. The 

results of this study will serve as the basis for any 

subsequent regulatory action. 

Cost-effectiveness of pollution control is defined as the 

control cost (net of cost credits) per ton of pollutant 

removed. It can be used to identify the least cost way of 

achieving a given pollution control objective. In this 

regulation, cost-effectiveness analysis is used to rank 

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pollution control alternatives. Since particulate control was 

the major focus of the proposal, the cost-effectiveness of 

particulate reduction attributable to diesel fuel quality 

control was estimated using a calendar-year approach discounted 

over a 33-year period. Particulate emission reductions were 

discounted in the same fashion as the costs, neglecting any 

factors which might tend to increase the value of those 

reductions in future years. The cost-effectiveness of sulfur 

control as developed in the proposal is shown in Table 2. 

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Table 2 

33-Year Urban Cost-Effectiveness Analysis of 

Sulfur Control1 

Wear Credit Scenario 

Maximum wear 

credit included 

Minimum wear 

credit included 

No wear credit 

included 

Cost-Effectiveness ($/ton) 

-68,148 to -19,253 

-3,906 to 4,304 

2,826 to 6,773 

Analysis is per ton of particulate matter with no credits 

taken for other emissions reductions. Ranges reflect 

impact of segregation. See draft RIA. 

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The effective date of the diesel fuel regulations was 

proposed to be October 1, 1993. This date was consistent 

with the joint industry proposal submitted to EPA by the 

engine manufacturers and oil refiners. Additionally, an 

EPA contracted study by SCI on the leadtime issue concluded 

that the proposed regulations could be met by late 1993. 

Finally, it was highly desirable to have the regulations in 

effect prior to the introduction of the 1994 model year in 

order to expand the technological options available to the 

engine manufacturers for compliance with the 1994 

heavy-duty diesel particulate regulations. 

A variety of enforcement options were presented in the 

NPRM, covering point of application, legal responsibility 

and compliance monitoring. It was proposed that the fuel 

guality regulations should be applicable at all points in 

the distribution network from refiners and importers to 

retail outlets. In terms of liability, a liability scheme 

was chosen whereby the regulated party anywhere in the 

distribution chain offering for sale, supplying or 

transporting a noncomplying fuel would be held liable. 

Additionally, a vicarious liability provision was included 

such that parties upstream in the distribution chain can be 

held responsible for . violations which are found at 

downstream facilities over which they could exercise some 

control. A provision was also included whereby off-highway 

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diesel fuel not meeting the proposed on-highway fuel 

standards must be visibly dyed in order to distinguish it 

from on-highway diesel fuel. 

Finally, the proposed fuel to be used for 

certification testing was defined. For 1994 and later 

model-year engines, certification fuel would meet the same 

specifications proposed for in-use fuel. That is, it would 

contain no more than 0.05 weight percent sulfur and would 

have a minimum cetane index of 40. For 1991-1993 

model-year engines, the certification fuel would contain 

0.10 weight percent sulfur fuel. This value represented 

EPA's estimate of the average commercial fuel sulfur level 

these engines would see over their useful life given that 

commercial fuel would have about 0.25 weight percent sulfur 

in 1991 - 1993 and no more than 0.05 weight percent sulfur 

for 1994 and later. 

II. Public Participation 

Following the August 24, 1989 publication of EPA'S 

proposal (54 FR 35276), a public hearing was held to 

solicit comments. This hearing was held on October 11, 

1989 and was followed by a thirty day comment period. 

During the public comment period, which ended November 10, 

1989, comments were received from more than 40 parties. 

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Some additional comments were also received after the close 

of the comment period and are included in the discussions 

below. 

EPA has carefully reviewed all of the comments 

received. In general, the comments were supportive of the 

rulemaking although many of the comments requested that 

modifications to the proposed rulemaking be made. More 

than twenty of the entities commenting on the proposed 

rulemaking expressed strong support. Commenters supporting 

the rule included four government agencies including the 

states of New York, Colorado and California; eight refiners 

and refiners organizations including the American Petroleum 

Institute (API), the National Petroleum Refiners 

Association (NPRA), and the Rocky Mountain Oil and Gas 

Association; seven manufacturers or manufacturers 

organizations including the Engine Manufacturers 

Association (EMA), Ford, General Motors, Navistar, and 

Volkswagen; the American Truckers Association (ATA); and 

two private citizens. The following sections review the 

substantive issues raised concerning changes to the 

proposal and provide EPA's responses to each. Major issues 

addressed include: the potential for adverse impacts on 

small marketers; impacts on small refiners; the 

appropriateness of the levels of control proposed; the use 

of lighter grades of fuel as a blendstock to improve fuel 

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properties in cold weather; methods of testing fuel sulfur 

levels; the use of the cetane index as a method of capping 

aromatics levels; dyeing of off-highway fuels; the schemes 

of liability chosen for enforcement; the importation of 

dyed Canadian fuel; variability in compliance testing 

methodologies; enforcement against misfuelers; and the 

applicability to Hawaii and the Pacific Territories. 

Issue: Small Marketer Impacts 

In the notice of proposed, rulemaking and the draft 

regulatory impact analysis, EPA did not specifically 

analyze the potential impacts of the rule on the segments 

of the distribution system downstream of the bulk 

terminals. Commenters argued that the rule does indeed 

have the potential for some severe impacts on small 

marketers in the downstream segment of the distribution 

system. 

Summary of the Comments 

Commenters submitted extensive comments on this issue, 

touching on many aspects of the rule's potential impacts. 

In its review, EPA identified five basic issues which seem 

to underlie the concerns of small independent marketers. 

These issues are: a belief that EPA had not adequately 

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evaluated the potential impacts of the rule on small 

marketers, the costs for small marketers to comply with 

EPA's proposal, the possibility of small marketers being 

placed at a competitive disadvantage compared to the major 

integrated petroleum companies, a desire for a uniform 

standard for the entire pool of number two diesel, and 

concerns about the supply of fuels after the rule goes into 

effect. Comments were also received on the impact of the 

vicarious liability enforcement provisions on small 

marketers. These enforcement-related comments are 

discussed later in connection with other enforcement issues. 

The Independent Fuel Terminal Operators Association 

(IFTOA), Empire State Petroleum Association (ESPA), New 

England Fuel Institute (NEFI), Petroleum Marketers 

Association of America (PMAA), Small Business 

Administration (SBA), and Society of Independent Gasoline 

Marketers Association (SIGMA) all argued that EPA must 

conduct an analysis of the potential impacts of the rule on 

downstream marketers. All of these various entities 

claimed that the rule would have potentially severe impacts 

on the segments of the industry downstream of bulk 

terminals. Most notably, they called for a study of the 

impacts of having a segregated fuel system and the impacts 

this system would have on the competitive situation of the 

various entities in the petroleum marketing industry. 

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PMAA, NEFI, and ESPA all argued that the financial 

impacts of the rule on small marketers could be great. The 

primary concern was increased costs in storing, 

transporting, and marketing segregated number two 

distillate fuels. PMAA argued that it would cost an 

average of $40,000 to upgrade storage facilities to handle 

segregated fuel and an average of $60,000 to handle the 

delivery of segregated fuels with the average cost to 

handle segregated fuels being about 1.5 cents per gallon. 

Marketers for whom the increased cost to handle segregated 

fuels would be prohibitive would be faced with significant 

losses of customers accompanied with significant losses of 

revenues according to PMAA. 

Both ESPA and PMAA believe that the rule will place 

small marketers at a competitive disadvantage compared to 

their larger competitors. PMAA claims that larger 

terminals and plants are more likely to be able to handle 

segregated fuels and would therefore have a considerable 

advantage in being able to add to their customer base by 

picking up customers lost by other marketers. Furthermore, 

they claim that it is rather commonplace for small 

marketers to compete directly with, their suppliers. The 

main fear associated with this situation is that suppliers 

may be able to restrict the availability of one or both 

fuels to the small marketers and use this leverage to take 

over some of the markets served by the small marketers. 

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For a variety of reasons, many commenters expressed a 

desire for the entire pool of diesel fuel to be subject to 

uniform standards. ESPA, PMAA, SBA, Gresham Petroleum Co., 

SIGMA, and the Delta Council all would like to see a 

uniform standard because of the benefits small marketers 

would derive. Since the majority of the potential small 

marketer impacts result from the need to handle two 

segregated diesel fuels, the adoption of uniform standards 

was seen as desirable since it avoids the need to segregate 

diesel fuels. ATA and a private citizen both expressed 

concern about intentional misfueling as a means of gaining 

competitive advantages and wanted uniform standards to 

prevent this. ATA also expressed concern that the creation 

of a price differential between on-highway and off-highway 

fuels would upset the current competitive balance between 

truck transportation and rail and ship transportation. 

Finally, many commenters expressed a desire to have the new 

standards extended to off-highway fuels so that further 

environmental and other benefits can be captured. ESPA 

cited a letter from a manufacturer of heating equipment 

which stated that reducing the sulfur content of the fuel 

would not only reduce emissions but also greatly extend the 

useful life of heating equipment. PMAA, SBA, the City of 

New York, the State of New York and the State of Colorado 

all argued that the opportunity to gain further 

environmental benefits by extending the regulations should 

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be pursued. New York and Colorado even went so far as to 

argue that the rule should be phased in early as low-sulfur 

fuel becomes available. On the other hand, NEFI felt that 

the extension of fuel sulfur regulations to the entire pool 

could push up the price of heating oil to a point where it 

would be less competitive with other heating fuels and 

therefore opposed a uniform fuel standard. 

The comments on the issue of supply shortages were 

wide-ranging. PMAA noted several ways in which supply 

could be affected. First, they- stated that larger working 

inventories will be needed since shifting heating oil to 

on-highway use will no longer be possible, and shifting 

low-sulfur fuel to home heating will probably not be 

economical. Second, they suggested that, due to capital 

constraints, many refiners may choose to not produce 

on-highway fuel; and that many of these refiners may be 

concentrated in a single region of the country, resulting 

in regional shortages. Finally, PMAA stated that many 

marketers will discontinue sales of one or the other grades 

of diesel. This could be regionally problematic, they 

suggest. For example, they noted that, in the Northeast, 

on-highway diesel fuel comprises a relatively small 

fraction of both the total distillate sales and the 

distillate sales of many individual marketers. Thus, PMAA 

believes that many of these marketers may discontinue sales 

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of on-highway fuel, which PMAA argues would result in 

shortages. Furthermore, ESPA argued that EPA had not 

evaluated the capabilities of lateral pipelines to handle 

segregated fuels and that the smaller lateral pipelines may 

not be able to handle two grades of diesel fuel, which 

would create supply shortages of one or the other grade of 

fuel. 

Analysis of Comments 

Given the potential for impacts on the distribution 

system identified by commenters and the general lack of 

solid information with which to make sound analyses, EPA 

decided to fund a contractor study of the potential affects 

of the rule on small marketers. [2] The study used a "model 

plant" approach to analyze the potential impacts of the 

rule on small marketers. Using this approach, data was 

gathered on the characteristics of small marketers, key 

attributes of the marketers were identified, the industry 

was grouped into a number of model plants according to 

trends in the key traits, and the potential impact of the 

rule was analyzed for each model plant under various likely 

marketing scenarios. Overall, the study concluded that the 

[2] Impacts of Fuel Desulfurization on Distillate 

Marketers, March 13, 1990, ICF Incorporated. 

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impacts on small marketers would be low. The following 

paragraphs briefly describe the ICF study and its results. 

The contractor first gathered data on the size and 

operating characteristics of petroleum marketing firms as 

well as the overall attributes of the market. In addition, 

information was gathered on the various costs associated 

with purchasing new equipment and carrying on operations 

with segregated fuel. Based on the data gathered, several 

key attributes of the marketers were identified. One of 

the most important was the marketer's size. To gauge the 

effects of firm size, four different size classifications 

were developed. Marketers were modeled as having annual 

distillate sales of $400,000, $1 million, $2.5 million, or 

$5 million. Given that the annual distillate sales of some 

marketers can be as high as $20 million, it can be seen 

that the study was focused on smaller firms more likely to 

be adversely impacted by the new rule. In addition, firms 

were classified as being in either a strong or weak 

financial position. "Strong" firms were modeled using 

median financial data for each group while "weak" firms 

represent the lowest quartile data. Other characteristic 

variables which were used in the modeling included existing 

eguipment (single or multiple distillate storage tanks, 

possession or nonpossession of compartmentalized delivery 

trucks), degree of fit between the sizes of any existing 

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multiple tanks and the sales distribution of the fuels, and 

the proportion of distillate sales coming from on-highway 

fuel. 

In terms of the marketing environment, it was decided 

that there were two main market characteristics which 

needed to be modeled. These two characteristics were the 

density of marketers in the given market area and the 

relative sales of on- and off-highway fuels in the region. 

Markets were described as having either a high density of 

marketers (typical of urban areas) or a low density of 

marketers (i.e., rural areas). This parameter affected the 

competitive environment faced by individual firms and was 

also associated with such things as the ability of a 

marketer to find alternative customers should it wish to 

specialize in only one type of fuel. As for the sales 

split between on- and off-highway fuel, ICF identified two 

characteristic markets. One was the New England area, 

where widespread use of home heating oil results in 

on-highway fuel being a relatively small portion of total 

sales. For other areas of the country, sales are more 

nearly balanced, although off-highway use still has a small 

edge for the customers serviced by small marketers. Based 

on the collected data, ICF identified sales splits of 80 

percent off-highway/20 percent on-highway and 60 percent 

off-highway/40 percent on-highway as being appropriate for 

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modeling the relative sales. Therefore, the four 

characteristic markets used in the analysis consist of 

markets with a high concentration of marketers with either 

predominantly off-highway sales or relatively even sales 

splits and markets with a low concentration of marketers 

with either of the two splits between on- and off-highway 

sales. 

Cost estimates were developed for a number of factors 

necessary to analyze the possible responses of marketers. 

These included costs of adding new tanks, costs of 

modifying piping so that existing multiple tanks could 

handle segregated fuels, costs of compartmentalizing 

delivery trucks, additional costs of operating 

compartmentalized trucks, and costs of finding and 

servicing new customers over a wider area. These cost 

estimates were combined with the various market 

characteristics to calculate the incremental cost in cents 

per gallon of fuel handled to maintain sales of an equal 

amount of fuel using three possible responses to the 

introduction of low-sulfur fuel. These responses were: 

specializing in only one fuel, segregating products by 

adding piping to demanifold existing multiple tanks, or 

segregating by adding a new tank. In each of the four 

market scenarios, the most prevalent groupings of marketer 

characteristics were analyzed for costs of responses. 

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In general, the study found that in areas with a high 

density of marketers and predominantly off-highway sales, 

most marketers would find specializing in off-highway fuel 

and expanding delivery areas to make up for lost customers 

to be the least cost option. This approach was found to 

add about one tenth of a cent per gallon to the fuel cost. 

However, there would be insufficient demand for off-highway 

fuel for all marketers to select this option. Segregating 

was also a fairly inexpensive option with costs of as low 

as one fourth of a cent per gallon, so that a premium for 

on-highway fuel of as little as one third of a cent per 

gallon above any differences in base fuel costs would be 

sufficient to entice many marketers to segregate or to 

specialize in on-highway fuels. Marketers in urban areas 

with relatively even demand for both on- and off-highway 

fuels would generally find specializing in either on- or 

off-highway fuels to be the lowest cost option at about one 

fourth of a cent per gallon, although larger marketers 

would find segregating to be a cost competitive option. 

Marketers in rural and predominantly off-highway sales 

areas would face costs ranging from fifteen hundredths of a 

cent per gallon to four tenths of a cent per gallon. Some 

marketers would find specializing in off-highway sales to 

be the lowest cost option while others would find 

segregating to be the cheapest response. In areas with a 

low density of marketers and relatively even sales of on-

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and off-highway fuels, most marketers would find 

segregating to be the least costly option with costs 

ranging from two to four tenths of a cent per gallon. 

Thus, in all cases the costs were relatively small. 

ICF's analysis of the market conditions showed that 

most of the cost increases should pass through to consumers 

without significant decreases in the demand for fuel. 

Consequently, most marketers should be able to cope with 

the additional costs without significant impacts on their 

businesses, although some of the weaker firms may 

experience some difficulties. It should also be noted that 

there were two possible market responses not specifically 

analyzed by ICF which would represent lower cost solutions 

for marketers in some cases. First, marketers located near 

terminals could increase the amount of deliveries made 

directly from terminals, thus bypassing some of the need 

for investments in capital equipment and possibly reducing 

handling costs for the fuel. Second, depending on the 

responses of refiners and pipeline/terminal operators, it 

is possible that some markets or even regions of the 

country will switch exclusively to using low-sulfur fuel, 

thereby completely eliminating the need for marketers to 

change the way distillate fuels are handled. The extent to 

which these two options will occur is difficult to 

predict. Further, at least for increasing deliveries 

-27-
P.29 

direct from terminals, it is difficult to estimate their 

cost impact. Therefore, these two options were not 

included in the analysis done by ICF. However, it should 

be noted that, due to their omission from the study, the 

results of the study may overstate the potential impacts of 

the rule on small marketers. 

To summarize the results of the study, costs to small 

marketers associated with the introduction of low-sulfur 

on-highway fuel should be fairly low, generally in the 

range of a few tenths of a cent per gallon even when 

installing new storage tanks. For the most part, 

additional costs to the marketers will pass through to the 

consumers. Therefore, most marketers will see very little 

impact from this rule. These conclusions were reached even 

though, as noted earlier, the analysis focused on the small 

end of the market where the changes would have the greatest 

potential for adverse impacts. 

As discussed later in this Preamble, today's action 

contains a two-year extension for qualifying small 

refiners. This small refiner extension is not expected to 

adversely affect small marketers. Although a third class 

of diesel fuel will be created, marketers will not be 

required to carry this fuel, so they will only do so if it 

is to their advantage. Furthermore, the volume of this 

-28-
P.30 

third class of fuel sold during the short period of the 

exemption is not expected to be great enough to 

disadvantage marketers choosing to not carry the fuel. 

Regarding the possibility for competitive 

disadvantages with larger marketers and terminals, results 

of the ICF study show that the competitive position of 

small marketers is not likely to be degraded compared to 

larger marketers as a result of this rule. ICF found that 

these two groups serve characteristically different 

portions of the diesel fuel market. Larger marketers and 

terminal operators serve mainly large accounts capable of 

receiving full tank truck loads of 3,000 to 7,000 gallons 

on a regular basis. On the other hand, small marketers 

primarily serve smaller accounts receiving partial truck 

loads of as little as 200 gallons. Furthermore, larger 

marketers have historically shown little interest in 

expanding their operation into markets currently served by 

smaller marketers. Even if they were so inclined, the ICF 

study found that larger marketers appear to be at least as 

ill-equipped to handle segregated fuels as small 

marketers. Therefore, the study concludes that no 

significant shift in the competitive environment should 

result from this rule. 

-29-
P.31 

Concerning the issue of establishing a uniform 

standard for the entire pool of diesel fuel, EPA does not 

find this to be a feasible option at present. First of 

all, while EPA has authority to regulate emissions from 

stationary sources under certain circumstances, EPA 

currently lacks direct authority to set national standards 

with respect to the content of fuel not used for highway 

purposes. Furthermore, the available leadtime between now 

and 1994 is probably insufficient for refiners to make the 

reguired capital investments to desulfurize the entire fuel 

pool. Finally, no assessment has been done of the 

appropriate control to implement for the off-highway 

market. This would involve the development of additional 

cost and benefit information for dealing with off-highway 

fuels. In addition, since no such action has been 

proposed, it would involve developing a new rulemaking 

proposal. This is a lengthy process, and it would clearly 

not be possible to regulate the sulfur content of these 

fuels by 1994. Nor could the Agency delay implementation 

of on- highway fuel control beyond 1994. Implementation of 

control by 1994 is necessary because of the expected 

introduction in that year of control hardware on heavy-duty 

diesel engines which will require low-sulfur fuel for 

proper functioning. 

-30-
P.32 

While it is not feasible to reguire the entire pool to 

be desulfurized, it should be pointed out that there is no 

prohibition against the off-highway use of low-sulfur 

fuel. Low- sulfur fuel can be used for any desired 

application. Indeed, if the market forces are such that it 

is more economical for much of the fuel pool to meet the 

standards for on-highway fuel, then that is what will 

likely happen. The rule as proposed provides the maximum 

flexibility for. the handling of off-highway fuels and 

heating oils. 

Concerning the possible upsetting of the competitive 

balance between on-highway truck transportation and rail 

and ship transportation, EPA does not believe that the rule 

will have a significant effect on this balance. EPA has 

seen no evidence -that a small difference in fuel prices 

would lead to truck transportation being noncompetitive 

with other means of transportation. More importantly, in 

many instances, rail or ship transportation would not be 

able to replace truck transportation. 

Regarding the issue of misfueling, EPA agrees that 

having a uniform standard would greatly simplify the 

prevention of misfueling. However, as has already been 

explained, it is not possible to mandate a uniform standard 

at this time. Therefore, EPA has constructed an 

-31-
P.33 

enforcement scheme (described later in this preamble) which 

should minimize the potential for misfueling. 

Marketers have argued that setting-up a segregated 

fuel system would involve an increase in inventory since 

the two products would not be readily interchangeable. No 

quantitative estimates of the need for increased inventory 

were made by marketers, nor was the claim of resultant 

shortages substantiated. EPA believes that the factors 

affecting the amount of inventory kept by marketers are 

complex and that increases in inventory are not an 

inevitable outcome of this rule. However, assuming that 

increases in inventory might occur, the Agency has 

attempted to estimate their potential impacts. According 

to the ICF small marketers study, marketers presently keep 

an average inventory of approximately a two week supply (or 

about 3.8 percent of the annual volume sold). For the 

worst case, the Agency assumed that all marketers would add 

the same type of fuel (i.e., on-highway) as a new 

segregated fuel without decreasing inventories of 

off-highway distillate. The Agency further assumed that 

inventories of on-highway fuel would be established over 

approximately a three month period as tanks were 

constructed and the new fuel became available. For this 

case, demand for on-highway fuel would not increase more 

than fifteen percent above the normal baseline for that 

-32-
P.34 

period. Such an increase in demand should be readily 

manageable for the short time before inventories were 

established and demand returned to normal levels. 

With respect to regional production, the only area 

which has been identified that appears to be potentially 

affected is the Rocky Mountain region. This area, unlike 

the rest of the country, is fairly reliant on fuel produced 

by small independent refiners, which may have some 

difficulty meeting the sulfur requirement by October 1993. 

However, the extension being provided for small refineries 

to alleviate leadtime constraints should also mitigate 

shortages in the Rocky Mountains. (See discussion in 

separate section.) For other regions, API comments 

indicate that the producers of the fuel will be able to 

supply- sufficient amounts of low-sulfur fuel. _ In fact, 

according to API, in its July 19, 1988 statement, many 

refiners will produce only low-sulfur fuel (which can be 

used in all applications) to avoid the burdens of 

segregation. Thus, EPA is convinced that refiners will be 

able to produce enough on-highway fuel for all regions of 

the country. 

According to PMAA, many small marketers would 

discontinue sale of one product if faced with segregated 

products, leading to shortages of on-highway fuel due to 

-33-
P.35 

too many marketers specializing in off-highway fuel. 

However, results of the ICF small marketer study do not 

support this contention. According to the ICF study, the 

costs of either segregation or specialization should be 

small. Thus, even in those areas where many marketers 

might favor specialization, only a small increase in the 

price of on-highway fuel should be sufficient to ensure 

that marketers will continue to supply both types of 

fuels. It is also worth noting that ICF found that in 

areas with low competition, segregation to supply both 

types of fuels was often the lowest cost option. 

Additionally, the urbanized areas where specialization is 

most likely to occur are characterized by nearness to 

terminals and the presence of major marketers. Both of 

these elements should act as stabilizing forces since 

on-highway fuel sales could be made directly from the 

terminal or through marketing outlets of the major oil 

companies. 

The last issue raised concerned the effect of this 

rule on small lateral pipelines. Contrary to ESPA's 

claims, the report done by SCI examining the effect of 

EPA's proposal on the product distribution network did look 

at the ability of lateral pipelines to handle segregated 

[3] Effects of Diesel Fuel Standards on Transportation and 

Bulk Terminal Storage of Distillate Fuels, SCI, 

December 17, 1987. 

-34-
P.36 

fuels.[3] SCI indicated that if these entities were to 

have a problem with compliance, it would be in storing the 

segregated products at the end of the pipeline, a problem 

similar to that faced by small marketers. However, SCI 

found that segregation of high- and low-sulfur distillate 

throughout the product distribution and storage chain of 

pipelines and terminals was feasible at low cost. 

Furthermore, pipeline companies are also generally larger 

entities than the small marketers described earlier. Thus, 

the conclusion of the small marketer study that small 

marketers should be able to handle products with little 

impact should also be valid for lateral pipelines. 

Therefore, no problems with the capability of lateral 

pipelines to handle segregated products is anticipated. 

Issue: Small Refiner Impacts 

Prior to issuing the notice of proposed rulemaking, 

EPA contracted with Sobotka Consultants Inc. (SCI) to 

evaluate the impacts of sulfur control on small refiners. 

Using an aggregate refining model, this study concluded 

that, for those small refineries capable of financing the 

necessary eguipment, costs to produce low-sulfur fuel 

should be comparable to those of the rest of the U.S. 

refining industry. However, this same report also 

acknowledged that some segments of the industry would be 

-35-
P.37 

economically unable to comply or could be somewhat 

economically disadvantaged. in any case, it was reasoned 

that refiners unable to comply with the rule would still be 

able to continue production by selling the fuel produced 

into the off-highway market. Comments on the proposal 

argued strongly that the small refiners impacts would be 

much worse than projected by EPA, and that adequate 

off-highway markets would not exist. 

Summary of Comments 

Many commenters, all of whom either were or 

represented small refiners, took issue with the SCI 

analysis of the situation of small refiners. A total of 

eleven commenters claimed the SCI study had significantly 

underestimated the costs for small refiners to produce 

low-sulfur fuel. For example, Frontier Refining estimated 

its cost to produce low-sulfur fuel at four cents per 

gallon rather than the 1.8 cents per gallon estimated for 

the controlled fuel under 100 percent segregation estimated 

in the NPRM. The Sunbelt/Huntway Refining Company further 

claimed that capital costs would be $4,000 per barrel of 

capacity for small refiners compared to $650 per barrel of 

capacity for larger refineries based on survey data from 

NPRA. 

-36-
P.38 

Small refiners commenting on the NPRM also indicated 

that many of the small refiners desiring to comply with the 

rule would not be able to do so by October 1, 1993. Most 

notably, small refiners complained that they would have 

difficulty getting permits and arranging financing. 

According to the American Independent Refiners Association 

(AIRA), small refiners are at a disadvantage in generating 

capital or arranging financing to purchase needed 

eguipment. Frontier Refining argued that it could finance 

the equipment but that its capital budget was already under 

strain from gasoline volatility (RVP) and RCRA 

reguirements. Frontier argued that EPA's own leadtime 

analysis indicated that small refiners would find it more 

difficult than large refiners to comply with both RVP and 

sulfur control in the same time period. Witco further 

requested that EPA allow extensions for cases in which 

delays are caused by difficulties in obtaining necessary 

construction permits. 

Reflecting an overall concern with leadtime, small 

refiners as a group seemed to believe that an extension or 

exemption would be the most appropriate form of relief. 

Fifteen commenters asked for either an extension or an 

exemption. Requests for extensions argued for as much as 

five additional years (Frontier Refining). The AIRA 

-37-
P.39 

submitted a proposal for a three year extension for small 

refineries and indicated a willingness to segregate fuels 

and allow sales to be limited to 1993 model year and 

earlier vehicles. Sinclair Oil Co., representing a group 

of Rocky Mountain refiners consisting of Crysen Refining 

Inc., Flying J Petroleum Inc., Frontier Refining, and 

Sinclair Oil, submitted a proposal for a three year 

extension which included caps on the allowable sulfur 

levels starting at 0.15 weight percent in the first year 

and declining to 0.10 weight percent in the third year. 

This proposal, however, did not reguire the fuels to be 

segregated. 

In addition to commenters requesting some form of 

extension or exemption, four refiners expressed an interest 

in banking, trading, and/or averaging of sulfur credits, 

while the API and the Engine Manufacturers Association 

(EMA) opposed any banking and trading programs. Sinclair 

Oil Co. proposed a detailed sulfur banking and trading 

program to be applied to small refiners as an alternate 

form of relief. On the other hand, API opposed any such 

plan as being too difficult to put into place and as being 

open for abuse, while EMA objected to banking and trading 

programs on the grounds that such programs would allow 

fuels with potentially damaging levels of sulfur to be sold 

to 1994 and later vehicles. Furthermore, API and NPRA both 

-38-
P.40 

objected to extension of any form of relief to small 

refiners on the basis that these refiners were participants 

in developing the original agreement and were sufficiently 

protected by its provisions leaving the off-highway market 

unregulated. 

Furthermore, commenters argued that some regions of 

the country do not have significant off-highway markets for 

diesel fuel and that the off-highway market is likely to 

become depressed in price due to a projected increase in 

competition for off-highway markets. For instance, AIRA 

claimed that many of its members would find it very 

difficult to find off-highway markets. Also, 

Sunbelt/Huntway Refining Co, stated that off-highway 

markets are very limited in Arizona. Witco, on the other 

hand, already serves a large off-highway market but is 

hoping to be able to switch to the on-highway market 

because of a belief that the off-highway market will become 

uneconomical. 

Analysis of Comments 

The SCI study indicated that it was possible that the 

ability of small refiners to remove sulfur from the fuel at 

costs comparable to the rest of the industry may have been 

overstated. On the other hand, API as well as some major 

-39-
P.41 

refiners argued that the costs for major refiners to remove 

sulfur from the fuel may have been underestimated also. 

EPA has not undertaken new analyses to confirm or deny any 

of the cost estimates presented. However, it is apparent 

that even" if the fuel costs were substantially higher, the 

rule would still be quite cost effective. 

Regardless of uncertainties on costs, EPA concurs with 

small refiner groups arguing that small refiners may need 

more leadtime beyond 1994 to comply* with the rule. Even 

for major refineries, the leadtime is already short. API, 

Chevron, and Phillips all indicated in comments submitted 

to the docket that the failure to finalize the rule prior 

to 1990 has already made it difficult for larger refineries 

to purchase and install the necessary capital equipment in 

time to meet the requirements of the rule. In fact, in a 

January 10, 1990 letter to EPA, Phillips further indicated 

its belief that continuing delays will force refiners to 

purchase foreign-made equipment. According to Phillips, 

"US engineers, shop fabricators and constructors will be 

strained to simultaneously fill all orders resulting from 

EPA's final rule." 

EPA believes that in such an environment small 

refiners would be at a definite disadvantage and may indeed 

face greater delays in arranging for construction and 

-40-
P.42 

engineering expertise and in getting permits than larger 

refiners. The EPA leadtime analysis pointed to 

construction and engineering availability constraints as 

being a possible bottleneck in the procurement of equipment 

to comply with the rule, especially with simultaneous 

demands from RVP requirements. This indication that 

construction and engineering resources are likely to be 

taxed supports the argument that small refiners would have 

difficulty arranging for these services in time to comply 

with the rule. Again, the comments from Phillips would 

indicate that the construction and engineering industry is 

going to be strained to meet the demands of the major 

refiners for new eguipment prior to October l, 1993. 

Furthermore, many small refiners may not have been aware of 

the agreement being developed by the engine manufacturers 

and the oil industry and therefore were unable to begin 

advanced planning and design until quite recently. 

Finally, smaller refiners are more likely to face 

delays in raising capital or arranging financing for the 

necessary engineering and construction of the desulfurizing 

eguipment than are major refiners. The EPA leadtime 

analysis was based on the assumption that raising capital 

would not be a constraint because it presumed integrated 

companies where capital spending for refinery upgrades is 

only a portion of the total capital budget. However, this 

-41-
P.43 

assumption is less applicable to small refiners than it is 

to major oil companies. Indeed, the EPA leadtime analysis 

acknowledged that firms that operate purely or principally 

in refining would tend to have the greatest difficulty in 

raising the capital required by environmental regulations. 

Furthermore, smaller refineries are less likely to have any 

existing desulfurization capacity and therefore are faced 

with a proportionately bigger task at proportionately 

greater expense than major refiners. 

Given these facts, the Agency believes it would be 

appropriate to provide small refiners a limited extension 

before requiring full compliance with the rule. However, 

EPA believes that the amount of time requested by small 

refiners is excessive and that the situation does not 

justify an extension of more than two years. For example, 

actions taken by the California Air Resources Board (CARB) 

indicate that small refiners in California are expected to 

need only a one year extension to meet the same sulfur 

standard in that State. In the 1989 rulemaking in which 

CARB established a diesel fuel sulfur standard of 0.05 

weight percent scheduled to go into effect at the same time 

as this rule, small refiners were allowed a one year 

extension for meeting the sulfur specification. However, 

it should be noted that, in the case of California, small 

refiners not able to comply by the end of the extension 

-42-
P.44 

period could still sell into the on-highway markets in 

neighboring states. Thus, some time beyond that provided 

by California may be appropriate for the case of a 

Nationwide standard. 

On the other hand, two additional years should be 

fully adeguate to meet the needs of small refiners. A two 

year extension would provide a total of five years of 

leadtime, which the SCI report indicated would be 

sufficient to allow enough facilities to be built to 

desulfurize the entire fuel pool. The rule, therefore, 

allows up to a two year extension, although it seeks to 

provide significant incentives, in the form of interim caps 

on the sulfur content, for refiners to comply as quickly as 

possible.[4] 

In addition to requiring small refiners to meet some 

interim levels of control, either through use of existing 

desulfurization capacity or through fuel blending with 

low-sulfur blendstock, EPA believes it is necessary to 

prevent the use of this fuel in vehicles equipped with 1994 

or later model year diesel engines. Many of these engines 

are expected to employ advanced emissions control 

[4] It should be clear from this discussion that EPA is 

not taking the position that small refiners are 

regularly entitled to extra leadtime. EPA's decision 

is a narrow one, based solely on consideration of the 

merits of this particular situation. 

-43-
P.45 

technology which is sensitive to excess sulfur in the 

fuel. The use of fuel with sulfur levels above 0.05 weight 

percent could seriously impair the functioning of these 

devices and must, therefore, be prevented. It is also 

important - to limit the extension to those small refiners 

who will actually use it to aid in complying with the 

rule. That is, refiners who plan to eventually discontinue 

sale of on-highway fuel rather than install new equipment 

should not be eligible for an extension. Finally, any 

extension should be structured to prevent small refiners 

from selling more on-highway fuel under the terms of the 

extension than they sold in prior years. This is needed 

both to limit the excess emissions from the use of higher 

sulfur fuel and to guard against any incentive for small 

refiners to increase sales and profits because of possibly 

favorable market positions created by the extension. With 

these goals in mind, EPA has developed a limited small 

refinery extension. The details of the extension follow. 

Fuel with a sulfur content greater than 0.05 weight 

percent but which meets the appropriate sulfur limit 

described in Table 3 and meets the other specifications for 

on-highway diesel fuel described in this rule, may be 

produced by small refiners according to the eligibility 

requirements described below. Such fuel will be referred 

to as exempted on-highway diesel fuel. 

-44-
P.46 

Table 3 

Sulfur Limits For Small Refiners 

Date Sulfur Limit 

October 1, 1993 0.25 weight percent 

October 1, 1994 0.10 weight percent 

October 1, 1995 0.05 weight percent 

-45-
P.47 

The sulfur levels specified in Table 3 actually 

represent significant reductions from the current sulfur 

levels of small refiners. Current sulfur levels of diesel 

fuels produced by small refiners average more than 0.25 

weight percent and in many cases approach 0.5 weight 

percent, so these levels will force small refiners to make 

interim reductions in the sulfur content of their fuels. 

Small refiners will be forced to either make better use of 

existing desulfurization equipment or blend their output 

with low-sulfur diesel stock in order to comply with the 

interim sulfur standards. Thus,, although the full benefit 

of the 0.05 weight percent standard will not be realized 

for small refiners during the extension period, there will 

be significant reductions from current levels. 

Small refineries will be defined according to the size 

criteria established for small refiners in the lead 

phase-down provisions of the Clean Air Act Amendments of 

1977. This definition is spelled out in Section 211 (g) of 

the Act and requires that: 

a. the total crude oil or bonafide feedstock 

capacity of the refiner be 137,500 barrels per 

day or less, and 

b. the crude oil or bonafide feedstock capacity of 

individual qualifying refineries be 50,000 

barrels per day or less. 

-46-
P.48 

The above capacities shall be measured in terms of the 

average of the actual daily feedstock use of the affected 

refiners or refineries during the period January 1, 1988 to 

December 31, 1989. These averages will be calculated as 

barrels per calendar day. 

The extension will be limited to qualifying U.S. 

domestic small refineries. In order to qualify, a small 

refiner must also demonstrate a commitment to produce 

diesel fuel with a maximum sulfur content of 0.05 weight 

percent by October 1, 1995, as .follows. By July 1, 1993, 

the refiner must show that capital commitments to make the 

necessary modifications to supply low sulfur fuel have been 

made. Evidence of capital commitments to make 

modifications shall include copies of executed and binding 

contracts for design and construction, and copies of 

approved permits for construction of the equipment. In 

addition, to qualify for the second year of the extension, 

the small refiner must provide evidence by July 1, 1994 

that on-site construction has begun. These provisions will 

ensure that only refiners intending to make modifications 

allowing them to produce complying fuel at the end of the 

extension period will be allowed to make use of the 

extension period. 

To ensure that the volume of on-highway fuel sold does 

not increase under the terms of the extension, the exempted 

-47-
P.49 

volume sold by a refinery during either of the two years of 

the exemption will be limited to the average of the annual 

amount of on-highway fuel produced at the refinery during 

the period October 1, 1989 to September 30, 1990. 

On-highway fuel production will be estimated from amounts 

reported as on-highway diesel fuel for Federal excise tax 

purposes. This amount can include fuels for which the 

refinery reported the sales as well as a portion of the 

fuel sold through licensed re-sellers. The on-highway 

portion of the fuels sold through licensed re-sellers may 

be assumed to be the same as the average on-highway 

fraction of sales reported by that customer, unless 

suitable evidence, acceptable to the Administrator, 

indicates otherwise. 

In addition, to prevent the use of fuels with sulfur 

contents of more than 0.05 weight percent in 1994 and later 

model year vehicles, any exempted fuel produced for 

on-highway consumption which has a sulfur content of 

greater than 0.05 weight percent will be segregated from 

fuel of sulfur content of less than 0.05 weight percent. 

The segregation program will contain the following 

provisions: 

1. The fuel must be dyed to distinguish it from 

both fuel intended for off-highway use and fuel 

-48-
P.50 

intended for general on-highway use; the dye for 

this purpose is a purple dye mixture of 

Approximately 38 percent by volume xylene, 50 

percent by volume Color Index (CI) solvent blue 

99 and 12 percent by volume CI solvent red 166 

at a minimum concentration of 20 parts per 

million by volume. 

2. Any wholesaler or retailer who sells exempted 

on-highway fuel must also offer for sale fuel 

with a sulfur content of less than 0.05 weight 

percent. 

3. In addition, retailers carrying exempted fuel 

must meet the following requirements: 

- prominently label diesel fuel pumps as to 

the type of fuel dispensed from each, 

place low and high sulfur fuel pumps on 

separate fuel dispensing islands at 

facilities which dispense diesel fuel at 

more than one fuel dispensing island. In 

this case, retailers must also prominently 

label the islands as to the type of diesel 

fuel at the given island. 

4. It should also be noted that no marketer or 

retailer is required to carry exempted 

on-highway diesel fuel under these regulations. 

-49-
P.51 

EPA believes that the proposed extension for small 

refineries provides relief that is fair and equitable while 

still recognizing manufacturer concerns regarding recall 

liability. This extension should permit small refiners who 

intend to' comply with the rule but who may need additional 

time to comply to do so without seriously disrupting their 

operations. On the other hand, small refiners would not 

gain a windfall in profits from expanding sales or by 

selling lower grade products into a premium market on an 

equal footing. 

At the same time, EPA recognizes that there may be 

some increase in the possibility of misfueling in the short 

term. However, the Agency believes that the segregation 

provisions, the limits on sulfur content and the vehicle 

labeling provisions will minimize both the likelihood and 

the impacts of misfueling. It is plausible that recall 

actions where possible sulfur contamination is an issue 

could be complicated because it could be difficult for 

manufacturers to determine whether or not a vehicle had 

been misfueled. EPA will consider this factor in working 

with manufacturers in resolving such implementation issues. 

In an analogous setting, EPA exempted small refineries 

from the lead content rules for a limited time, in 

regulations issued under CAA §211, "in recognition of the 

-50-
P.52 

special leadtime problems faced by this.-group." 38 Federal 

Register 33740 (1976), see 40 CFR §80.-20(b)(1976). The 

lead regulation was upheld with respect to several other 

issues in Ethyl Corp. v. EPA, 541 F.2d (D.C. Cir)(en banc), 

cert. denied, 426 U.S. 941 (1976). Congress later 

specifically provided by statute for a limited exemption 

for small refiners from the lead content requirements under 

CAA §211 (g), see Small Ref. Lead Phase-Down Task Force v. 

EPA, 705 F.2d 506 (D.C. Cir. 1983). 

In connection with the lead content regulations, the 

Agency required retailers to sell unleaded fuel and also 

issued other provisions applicable to the retailer. See 40 

CFR 80.22 (1989). This affirmative sale requirement was 

upheld in Amoco Oil Co. v. EPA, 501 F.2d 722 (D.C. Cir. 

1974). In the present case, the- retailer has the option 

whether or not to sell exempted fuel, but if exempted fuel 

is sold both types of fuel must be sold and be properly 

labeled for the reasons discussed above. These and the 

other requirements applicable to retailers already in the 

rule as proposed are needed to promote the aim of §211 (c) 

of preventing impairment of the emission control systems 

from the sulfur content of diesel fuel. Thus, as these 

regulatory examples indicate, Section 211(c) of the CAA 

provides clear authority for the small refiner exemption 

and the reguirements governing retailers who sell fuel 

-51-
P.53 

covered by the exemption, as- well as for the other 

provisions included in this Final Rule. 

The above extension to the rule should provide small 

refiners with sufficient additional leadtime so that those 

refiners actually intending to comply with the rule will be 

able to do so. Therefore, a sulfur banking and trading 

program is not necessary to assist small refiners in 

complying with the rule. Such a program is also 

undesirable from the standpoint that it would be difficult 

to implement and enforce in this setting where different 

types of fuel are available at the same time. 

The proposed extension should also alleviate some of 

the problems faced by refiners located in regions with 

limited off-highway markets. However, it should also be 

pointed out that lack of a local market for off-highway 

fuel would not necessarily preclude a refiner from selling 

fuel intended for off-highway uses. As ESPA and IFTOA have 

pointed out, regions with large demands for off-highway 

fuel also tend to import large amounts of such fuel over 

great distances. With the conversion of many of the larger 

refineries to production of low-sulfur fuel, it should be 

possible for small refiners to ship off-highway fuels to 

these regions and still be able to recapture the increased 

shipping costs. 

-52-
P.54 

Issue: Levels of the Standards 

In the notice of proposed rulemaking, EPA presented 

justifications for the levels of control selected for both 

sulfur and aromatics. Some commenters, however, expressed 

the opinion that the levels of control selected may not 

have been the optimal ones. 

Summary of the Comments 

Most commenters believed that the levels of control 

selected for both sulfur and aromatics were appropriate. 

EMA, API, most manufacturers and most refiners supported 

both the 0.05 weight percent limit for sulfur and the 40 

cetane index cap for aromatics. However, there were a few 

commenters who would have liked to have seen a higher limit 

on sulfur content as well as a few government agencies who 

requested tighter controls on aromatics. 

IFTOA, ESPA, NEFI, and Frontier Refining all 

questioned whether or not the sulfur level of 0.05 weight 

percent was optimized. IFTOA and NEFI both claimed that 

having a uniform sulfur level for the entire pool would be 

desirable but only if the allowable sulfur level was higher 

than 0.05 weight percent. Both organizations indicated 

that requiring heating oil to meet a sulfur standard of 

-53-
P.55 

0.05 weight percent would increase the cost of heating oil 

too much to be tolerable. ESPA claimed that EPA had failed 

to live up to its obligation to find the optimal sulfur 

level citing the Energy and Resources Consultants and 

Sabotka Consultants Inc. report stating that the sulfur 

level of 0.05 weight percent was not optimized. Frontier 

Refining (referring to the difficulties faced by small 

refiners in complying with the rule) asked EPA to evaluate 

the feasibility of a higher limit for sulfur claiming that 

any loosening of the sulfur requirements would ease the 

burdens on small refiners. 

The States of Colorado and California as well as the 

City of Denver requested that tighter controls be placed on 

aromatics (in addition to asking for direct measurement of 

aromatics levels.as the means of -control). California 

would like to see consistency with its own rules for diesel 

fuel quality which specify a maximum aromatics content of 

10 volume percent. Denver and the State of Colorado are 

attempting to gain the emissions benefits of reduced 

aromatics contents as a means of combating their serious 

air pollution problems. 

Analysis of Comments 

EPA believes that, from a national perspective, the 

sulfur level of 0.05 weight percent is indeed the best 

-54-
P.56 

level of sulfur control which can be selected with 

currently available knowledge. A primary driving force for 

the proposal of this rule was to enable engine 

manufacturers to use aftertreatment technology which is 

crucial to meeting the stringent particulate emissions 

standards which will go into effect in 1994. Currently, 

there is insufficient knowledge of the workings of these 

devices to know precisely what sulfur level will be 

tolerable in the long term. However, EMA, in supporting 

this rule, indicates its belief that a 0.05 weight percent 

standard is sufficiently low to provide the necessary 

protection. EMA also believes that higher levels would not 

be acceptable. From the refiners' perspective, API has 

supported the proposed standard as reasonable and cost 

effective. Nor does EPA believe it is appropriate to raise 

the sulfur level in order to ease compliance by small 

refiners (see separate discussion of the small refiner 

issue). Finally, with respect to establishing a single 

standard for all middle distillate, as has previously been 

discussed, EPA would not be able to rely on the authority 

it has used for this rule and it would need to institute a 

new proceeding if any such effort were to be undertaken. 

Therefore, this final rule retains the sulfur standard as 

proposed. 

-55-
P.57 

Regarding the selection of a more stringent standard 

for aromatics control, as indicated in the proposal, EPA 

believes that, on a national basis, the costs of reducing 

the aromatics level are not currently justified by the 

concomitant reduction in particulate emissions. EPA 

concluded that reducing the aromatics level to 20 volume 

percent would cost an incremental 3.24 cents per gallon. 

At the same time, the additional reductions in particulate 

matter emissions would be only marginal. EPA calculated 

the cost effectiveness of reducing the aromatics level to 

20 volume percent to be between $310,751 and $560,378 per 

ton of particulate matter compared to a maximum of $6,773 

per ton of particulate matter for sulfur control. In 1995, 

for instance, control of sulfur content to 0.05 weight 

percent is expected to result in a net reduction of 19 

percent of the particulate attributable to the on-highway 

use of diesel fuel while control of aromatics content to 20 

volume percent would result in' a reduction of only two 

percent. However, this analysis does not include an 

assessment of the potential impact on cancer risk, which is 

an issue that, as noted earlier, will be addressed by EPA 

in a separate action. Therefore, EPA is not attempting to 

reduce aromatics content in diesel fuel with this action. 

Furthermore, additional leadtime would be reguired if such 

a reguirement were to be imposed, which would further delay 

the effective date of this rule. 

-56-
P.58 

Issue: Winter-time blending of jet-A, kerosene, or 

number one fuel oil to reduce the cloud point and 

pour point of number two diesel fuel 

During winter months, diesel fuel is typically blended 

with jet-A, kerosene, or number one fuel oil to lower the 

cloud point in cold climate regions. Undiluted number two 

diesel fuel typically has a cloud point (the temperature at 

which a cloud of wax crystals first appears) of around 

12°F. Since the consequences of such solids plugging fuel 

lines or other engine parts are catastrophic, operators and 

fuel suppliers take the precaution of blending number two 

diesel fuel with lighter fuels "to ensure that the mixture 

will not reach its cloud point. In the notice of proposed 

rulemaking, EPA required that all fuels used as on-highway 

diesel fuel meet the sulfur and aromatics specifications, 

regardless of the time of year, without specifically 

stating how fuels blended with on-highway diesel fuels 

would be handled. 

Summary of the Comments 

The Empire State Petroleum Association (ESPA) and the 

Petroleum Marketers Association of America (PMAA) expressed 

concern about the availability of a sufficient supply of 

low-sulfur kerosene, jet-A, and number one diesel for 

-57-
P.59 

blending into on-highway diesel fuel. PMAA points out that 

the amount of fuel blended can be quite substantial, 

reaching 30 percent blendstock in New Jersey and 40 percent 

blendstock in Minnesota. 

Phillips Petroleum, the Tosco Corporation, Chevron, 

and the Rocky Mountain Oil and Gas Association all 

submitted comments requesting a winter-time exemption to 

allow the blending of kerosene-type fuels, which may have a 

sulfur content of greater than 0.05 weight percent, into 

the on-highway diesel fuel market. Chevron pointed out 

that, while the ASTM sulfur specification for jet-A fuel is 

0.3 weight percent, the national average for sulfur content 

of this common blending fuel has remained nearly constant 

averaging between 0.05 and 0.06 weight percent for the past 

ten years. Chevron proposed that EPA finalize the rule 

with a winter-time blending exemption for blended 

on-highway fuels. The exemption would be in effect from 

November 1 to March 31 with a maximum sulfur content for 

the blended fuel to be set by a cooperative testing program 

with EMA to determine the maximum fuel sulfur content which 

1994 and later engines and aftertreatment devices can 

tolerate without permanent damage. The California Air 

Resources Board, on the other hand, commented that there 

was no technical need for winter exemptions for blended 

fuels. 

-58-
P.60 

The American Petroleum Institute included a discussion 

of the handling of winter-time blending of kerosene-type 

fuels into number two diesel fuel in its comments. API 

addressed the possibility of the dyeing requirement for 

fuels not meeting the 0.05 weight percent sulfur standard 

including the pool of fuels used for winter-time blending. 

API urged that the dyeing requirement not be extended to 

this pool pointing out that the blended fuel would still be 

required to meet the sulfur limit of 0.05 weight percent. 

Analysis of Comments 

EPA believes that it is necessary for all on-highway 

diesel fuels to meet the 0.05 weight percent sulfur limit 

at all times. First of all, to relax this reguirement for 

part of the year would jeopardize many of the environmental 

benefits of this rule. More importantly, though, the use 

of on-highway diesel fuel with a sulfur content of more 

than 0.05 weight percent could damage the emissions control 

technology of 1994 and later model year vehicles. 

Therefore, EPA will not allow any seasonal exemptions from 

the sulfur levels. 

Concerning the handling of kerosene and jet-A, EPA 

generally agrees with the position put forth by API. The 

ASTM specifications and average properties of jet-A, 

-59-
P.61 

kerosene, and number one diesel tend to group these fuels 

into a separate classification from number two diesel 

fuel. Since the proposed regulations only include fuels 

intended for use as an on-highway motor fuel, jet-A and 

kerosene will not be covered by the regulations unless they 

have been designated as being intended for use as a diesel 

fuel. The dyeing reguirement is to distinguish diesel fuel 

which, but for the sulfur content or cetane index/aromatics 

level not meeting the specifications for on-highway fuel, 

would be indistinguishable from on-highway diesel fuel. 

Since the jet-A and kerosene .blendstocks have physical 

properties which naturally distinguish them from number two 

diesel fuel, and as such inherently require them to be 

segregated from number two diesel fuel, they would not need 

to be dyed to distinguish them from on-highway diesel 

fuel. In addition, since kerosene and jet-A type fuels 

cost about five cents per gallon more than number two 

diesel fuel, dyeing should not be needed as an incentive 

for keeping these fuels segregated from the on-highway 

diesel fuel market. Number one diesel fuel, however, would 

be covered by the dyeing requirements due to its 

designation as a diesel fuel. 

EPA also believes that there will be sufficient stocks 

of fuels for blending which have a low enough sulfur level 

to be blended into the on-highway market. Surveys taken by 

-60-
P.62 

the National Institute for Petroleum and Energy Research 

(NIPER) indicate that the average sulfur contents of jet-A 

and number one diesel are fairly close to 0.05 weight 

percent, which would indicate that there is a sufficient 

supply of these fuels with a sulfur content of less than 

0.05 weight percent to cover the needs for winter blending 

with on-highway diesel fuel. The national average for 

sulfur content in jet-A fuel in 1988 was 0.054 weight 

percent and, as. API pointed out, this sulfur content has 

been fairly consistent over the past decade. For number 

one diesel, which has an ASTM specification for sulfur 

content of 0.5 weight percent, the national average for 

sulfur content in 1989 was 0.064 weight percent. However, 

only the area designate by NIPER as the central region had 

an average sulfur - content of greater than 0.06 weight 

percent. Given the broad national distribution of fuels 

suitable for blending with number two diesel fuel, EPA 

believes that the market will be able to supply sufficient 

quantities of blending fuels with low sulfur contents to 

meet the needs of the on-highway market. Therefore, 

winter-time exemptions of blended fuels from the sulfur 

requirements do not appear to be necessary and all 

on-highway diesel fuel, blended or not, will be required to 

meet the 0.05 weight percent sulfur standard. 

-61-
P.63 

Issue: Testing of Fuel Sulfur Levels 

EPA proposed using ASTM standard test method D-2622 

for its own determination of sulfur levels in diesel fuel. 

It was also specified as the appropriate method for 

establishing a defense to an alleged violation. However, 

other test methods not specifically mentioned, with varying 

complexity and accuracy, are available. 

Summary of the Comments 

Navistar supported the Agency's selection of D-2622, 

saying it was the "best method" for these regulations. 

Amoco also supported this selection. Penzoil and Princeton 

Gamma-Tech (PGT), however, suggested that EPA allow the use 

of ASTM- D-4294, which is an energy dispersive x-ray 

technique. They claimed that it is less expensive and 

provides equivalent accuracy. Chevron also suggested that 

D-4294 is acceptable for use with careful quality control. 

PGT also suggested that round robin testing of such 

alternative test procedures be performed to establish 

equivalency to ASTM D-2622. Chevron, Conoco and PGT 

recommended that EPA use the ASTM D-2622 test as the 

reference test. Amoco and Phillips also suggested that the 

Agency allow the use of other methods. 

-62-
P.64 

Analysis of the Comments 

The test method proposed by EPA represents the method 

which will be used by the Agency for enforcement compliance 

purposes. Defenses contained in the proposed regulations 

reguired that sulfur testing according to ASTM D-2622 be 

completed by refiners or importers to establish a defense 

to an alleged violation of the rule. No specific test 

method requirements were proposed for other affected 

parties. As noted by the commenters, the equipment 

necessary to complete ASTM .D-2622 is costly. The 

alternative test method recommended by Penzoil and 

Princeton Gamma-Tech, ASTM D-4294, may be essentially as 

accurate as ASTM D-2622, yet costs are significantly less. 

The Agency recognizes that it may be desirable for many of 

the regulated parties to be able to procure the ASTM D-4294 

eguipment for oversight testing. Therefore, EPA has 

decided that for purposes of establishing a defense to an 

alleged violation of the sulfur percentage, a regulated 

party may use the ASTM standard test method D-4294. The 

defendant will be responsible to support its data with a 

quality control plan and demonstrate the ability to 

accurately perform this test method. Furthermore, parties 

using this test method for defense purposes must have 

evidence from the manufacturer or others that it reliably 

produces results substantially equivalent to the test 

-63-
P.65 

method specified by EPA. EPA will continue to use the ASTM 

D-2622 test for enforcement purposes and will rely on those 

test results in any enforcement action. 

All "regulated parties are free to use any test 

procedure for determining, to their own satisfaction, 

compliance with the regulation. Only the ASTM D-2622 

method will be used by EPA for enforcement purposes and the 

ASTM D-4294 test method will be considered as a defense 

only if it can be properly qualified with supporting 

documentation. 

Issue: Use of Cetane Index to Cap Aromatics Levels 

In its proposal, the Agency cited evidence that higher 

aromatics levels in diesel fuel could potentially 

contribute to higher emissions. The Agency thus saw it as 

desirable to prevent the aromatics levels of diesel fuels 

from increasing in the future. However, since direct 

measurement of aromatics is a somewhat complicated 

procedure, EPA chose to use a minimum cetane index of 40 as 

a surrogate for capping aromatics. 

Summary of the Comments 

Witco Corporation suggested that the minimum cetane 

index would be inappropriate for its on-highway diesel fuel 

-64-
P.66 

because it uses a highly napthenic San Joaquin crude as a 

feedstock. Diesel fuels distilled from this crude, it was 

argued, have naturally low cetane indices, and require 

cetane improvers to be marketable; and that lowering 

aromatics - would do nothing to increase the cetane index 

above the minimum value of 40. Witco, therefore, requested 

that a maximum aromatics level of 45 percent be established 

as an alternative to the minimum cetane index of 40. 

Phillips Petroleum was also concerned about the use of 

the cetane index; arguing that when sulfur is removed from 

diesel fuel, the cetane index may be a very poor estimate 

of the actual cetane rating of the fuel. (The cetane 

rating, or cetane number, of a fuel is a measure of engine 

performance using the fuel and is taken directly from 

engine tests, while the cetane index is an estimate of the 

cetane rating that is calculated from fuel properties.) To 

prevent the occurrence of in-use fuels with low cetane 

ratings, Phillips suggested that EPA might raise its 

minimum cetane index. Mobil also stated that the cetane 

index is not the best indicator of engine combustion 

performance, and that EPA should establish an optional 

minimum cetane number specification of 40. Under this 

option, Mobil added that cetane improver additives should 

be allowed. Volkswagen of America also reguested the 

addition of a cetane number specification, although 

-65-
P.67 

Volkswagen suggested that the appropriate cetane number 

should be 45. 

Navistar supported the minimum cetane index standard, 

and the use of ASTM-D976 for its determination. It went 

further, however, to suggest that, because of the minimum 

cetane index (which was established to cap aromatics 

levels), the Agency should also include a maximum aromatics 

level of 43% for its diesel test fuels. 

Analysis of the Comments 

The Agency's goal in establishing a minimum cetane 

index of 40 for on-highway diesel fuel was to control the 

aromatics content of the fuel at approximately current 

levels. The cetane index, as measured by ASTM test method 

D 976, was selected because of its simplicity in use, 

acceptance by the industry, and the fact that it is most 

directly controlled by the density of the fuel which is 

strongly influenced by the aromatics content of the fuel. 

However, there is nothing unique about the cetane index 

which would preclude the alternative use of other methods 

of controlling the aromatics content of diesel fuel. Thus, 

in response to Witco's comment, EPA has no objections to 

the establishment of an optional maximum aromatics 

specification. The Agency cannot, however, establish the 

-66-
P.68 

maximum as 45 percent since this is well above current 

average levels. The results of MVMA's surveys of diesel 

fuel show that the average aromatics levels in recent years 

have been in the 30 to 35 percent range. Therefore, this 

final rule provides an optional standard for the maximum 

aromatics content of on-highway fuel of 35 percent as an 

alternative to meeting the cetane index specification. The 

aromatics content shall be determined using ASTM test 

method D-1319, as is currently used for EPA test fuel 

specification. 

Concerning the comments by Phillips, Mobil and 

Volkswagen, EPA notes that the purpose of the cetane index 

specification established here is to cap aromatics at 

approximately current levels. The Agency, therefore, sees 

no reason for it- to establish a. performance-based 

specification; either a higher cetane index, or a cetane 

number specification. These concerns have, in the past, 

been addressed by the market, and EPA sees no reason that 

this should be changed by this rule. 

Finally, EPA disagrees with Navistar who argued that 

it is appropriate to include a maximum aromatics level of 

43 percent for certification fuels to maintain consistency 

with the minimum cetane index of 40 which was proposed. 

The Agency's goal for test fuels is that they be 

-67-
P.69 

representative of in—use fuels. Thus, since the only limit 

on the aromatics content of in-use fuels is that imposed by 

the minimum cetane index specification, the Agency will 

establish no other limit for its certification test fuels. 

Issue: Dyeing of Off-Highway Fuel 

The Agency proposed that any diesel fuel which does 

not show visible evidence of being dyed shall be considered 

to be available for use in diesel motor vehicles and motor 

vehicle engines. Since the diesel fuel standards are 

proposed to be applicable at all sites in the distribution 

network, this implies that the dye must be added at the 

refiner or importer facility to avoid noncompliance by 

undyed product which may be used for other purposes. 

Summary of the Comments 

The Mobil Corporation stated that they "fully support" 

the dyeing proposal. Amoco, Phillips Petroleum, the Rocky 

Mountain Oil and Gas Association, and the Petroleum 

Marketers Association of America (PMAA) all expressed 

support for dyeing of off-highway diesel fuel at the 

refinery. The American Independent Refiners Association 

believed that dyeing at the refinery level would be 

difficult whereas the Independent Fuel Terminal Operators 

-68-
P.70 

Association (IFTOA) recommended that dyeing be done at the 

terminal level to prevent supply problems. The New England 

Fuel Institute (NEFI) was concerned about the point of 

dyeing. The IFTOA and Amoco recommended that the Agency 

specify required dye concentrations. 

IFTOA and Amoco believed the dye named in the proposal 

is an appropriate dye. Amoco stated that no adverse health 

effects are known for the proposed dye while NEFI expressed 

concern over the potential cost and health effects of the 

dye but cited no specific information to show there were 

adverse health effects. The American Trucking Association 

believed the dye chosen may not be a good one since it 

believes the dye is expensive. The Indiana Farm Bureau 

Cooperative Association (IFBCA) and Amoco both pointed out 

that the specified dye will appear green when mixed with 

diesel fuel and not blue as stated in the proposal. Both 

the IFBCA and the IFTOA indicated that current premium 

diesel fuel is dyed red or purple to distinguish it as a 

premium product to their customers. The Empire State 

Petroleum Association (ESPA) and PMAA questioned possible 

contamination of low sulfur fuel with either sulfur or dye 

from residual amounts of off-highway fuel left in trucks 

and lines following deliveries. 

-69-
P.71 

Phillips Petroleum recommended that the specified dye 

comply with pipeline standards for water haze in diesel 

fuel. 

PMAA and NEFI both expressed concern that the use of 

dye for off-highway diesel fuel is being done for tax 

purposes. PMAA suggested that the regulation state that 

dye not be indicative for tax purposes as undyed fuel is 

not exclusively for on-highway uses. 

Analysis of the Comments 

EPA proposed the dyeing of off-highway diesel fuel as 

a means to visually determine if diesel fuel was intended 

for off-highway use and not in compliance with the sulfur 

percentage and minimum cetane index standards. The intent 

was for the dye to be added at the earliest point in the 

distribution network, namely by the refiner or importer, so 

that this visual clue would facilitate detection of 

misfueling or blending of noncomplying diesel fuels at all 

points. Although the presence of dyed fuel will be an 

indicator of off-highway, or potentially noncomplying, 

diesel fuel, it will not be the basis for enforcement 

action. Enforcement will be based on actual analysis of 

diesel fuel samples according to the ASTM test methods 

specified in this regulation. 

-70-
P.72 

Support by Mobil, Phillips, and Amoco clearly 

indicates that the refining industry supports the dyeing 

concept. This approach has been widely used in Europe and 

Canada, although for other reasons, for many years. 

Available information shows no adverse health effects or 

mechanical problems attributable to the specific dye 

required by the regulations. Cost of the dye and dyeing 

equipment is kept minimal if it is added at the refinery or 

importer facility. This will reduce the potential cost 

burden at the terminal or distributor level. Supply 

problems or shortages should also not occur as the clear 

diesel fuel may also be sold for off-highway use if a 

temporary shortage of dyed fuel occurs. 

EPA is aware that the specific dye required by the 

regulations will not normally be blue when added to diesel 

fuel. Due to the characteristic yellowish color of diesel 

fuel, upon dyeing the fuel will appear green. This is 

satisfactory, as it will indicate that the reguired dye has 

been added and will be the color which field personnel will 

be looking for. The Agency will not recommend specific dye 

concentrations to be used, as the regulation requires 

visible evidence of the dye being added. Liable parties 

bear the burden of adding sufficient dye to accomplish the 

goal of the dyeing program or risk fuel being tested as 

on-highway fuel. As several commenters pointed out, red or 

-71-
P.73 

purple dye is currently added to their premium diesel fuel 

for customer recognition. Assuming that these fuels comply 

with the sulfur percentage and cetane index requirements, 

the practice will not be prohibited. These colors will 

clearly hot be confused with blue or green and alleged 

violations will, in any case, be based on analysis and not 

colors. 

Several parties pointed out that the possibility 

exists that residual dye may be present from deliveries of 

off-highway fuel when a truck . is subsequently used for 

on-highway fuel. However, based upon typical dye 

concentrations used, the presence of the dye will not be a 

problem as a small amount diluted in a subsequent truck 

load would not generally be visible. In fact, again based 

upon typical dye concentrations and sulfur levels, if 

enough residual fuel were present to cause visible 

coloration, the 0.05 weight percent sulfur standard would 

also be exceeded. In any event, for enforcement purposes, 

color alone would not be used to establish a violation. A 

fuel sample would be analyzed and if the sulfur or cetane 

standards were exceeded, then a violation would have 

occurred. If residual sulfur content is high enough to 

raise the level of the on-highway shipment above the 

standard, then a violation has occurred. 

-72-
P.74 

Phillips Petroleum's concern regarding water haze in 

diesel fuel caused by the dye was not raised by any other 

commenters. Furthermore, Phillips failed to supply any 

data to support its concerns. There is no information 

available* to the Agency which indicates that this is a 

significant problem and therefore, unless specific data is 

provided by Phillips or other parties to support this issue 

in the future, it will not be considered further. 

Although the addition of dye to diesel fuels is used 

by other countries as a means to discourage tax evaders, it 

is not EPA's function to initiate such a program here. 

EPA agrees with the commenters pointing out that undyed 

fuel will in many cases be used for off-highway 

applications as well as on-highway. Therefore, it would 

not be accurate to consider all undyed fuel to be 

on-highway fuel for tax purposes. 

Issue: Enforcement Liability Scheme 

EPA proposed an option for the presumption of legal 

liability for diesel fuel standards violations which 

covered all parties in the distribution chain. The scheme 

also included a vicarious liability provision whereby 

parties upstream in the distribution chain can be held 

responsible for violations which are found at downstream 

-73-
P.75 

prove compliance with the- standards and create an unfair 

economic burden. Both SIGMA and PMAA believed that 

spurious claims will take enormous amounts of time and 

money to defend against claims of contamination or 

marketing noncomplying diesel fuel. SIGMA specifically 

opposed an oversight program as part of a defense to a 

violation and PMAA concurred that this oversight program to 

test each incoming and outgoing load will be an enormous 

cost burden. 

ARCO Transportation Company was concerned that testing 

reguirements will cause delays while waiting for test 

results. They recommended that liability be only on the 

party which originally introduced the noncomplying 

product. If needed, additional testing and sampling at 

retail distributor terminals.and pumps could be done. The 

Small Business Administration (SBA) recommended that the 

proposed testing requirements be shifted from the retail 

station to the terminal or pipeline to alleviate an 

unreasonable cost burden on the retailers. This would 

reduce the number of tests required from what would occur 

if SBA's perceived EPA requirement that every shipment be 

tested were enacted. Likewise, the National Automobile 

Dealers Association (NADA) did not want liability on 

wholesale purchaser-consumers as improvements to engine 

life and performance outweigh, in NADA's opinion, any 

-75-
P.76 

facilities over which they could exercise some control. 

Specific defenses were outlined in the proposal to rebutt 

the presumption of liability, including sampling and 

testing of product. 

Summary of the Comments 

The Mobil Corporation and Phillips 66 Company opposed 

the vicarious liability provision where upstream parties 

could be held responsible for violations at downstream 

facilities over which they could exercise some control. 

Phillips stated that these provisions will present a far 

greater burden to industry than similar provisions of the 

RVP and lead phasedown regulations. Phillips had 

additional concerns over the huge paper trail and complex 

certifications program which may be necessary to oversee 

downstream distributors and unbranded dealers to prevent a 

large, uncontrolled liability potential. Buckeye Pipeline 

stated that the accountability of sulfur is easier than 

volatility, so the full enforcement program from the RVP 

program is not needed. 

The Society of Independent Gasoline Marketers of 

American (SIGMA) and the Petroleum Marketers Association of 

America (PMAA) believed that the proposed enforcement 

scheme would require costly oversight testing programs to 

-74-
P.77 

incentive to cheat on fuel use. NADA recommended that the 

distributor should be required to certify that their fuel 

deliveries of on-highway diesel fuel are "on-spec". They 

also supported requiring EPA to detect a violation of the 

regulations and prove that the wholesale purchaser-consumer 

caused the noncompliance. 

Phillips pointed out that enforcement of the proposed 

liability scheme will be a difficult and complex 

challenge. Therefore, they recommended that the proposed 

vicarious liability provisions should be deleted in the 

final rule. 

Analysis of Comments 

The liability provisions proposed by EPA for the 

diesel fuel regulations are basically identical to those 

used in the Agency's lead contamination regulations and 

volatility regulations. They place responsibility for 

complying with the standards for sulfur percentage and 

cetane index at all levels in the distribution chain. This 

includes the vicarious liability of upstream parties for 

violations found at downstream facilities over which they 

can exercise some control. 

-76-
P.78 

Phillips believes that these regulations place a 

heavier burden on the industry than the lead or RVP 

regulations, particularly where the downstream distributors 

or unbranded retailers are concerned. However, these 

industry parties are the identical parties over which the 

RVP regulations currently impose the same scheme. There is 

no evidence that the diesel fuel program will involve any 

different aspects of control which would necessitate the 

Agency to consider a different scheme. The availability of 

an oversight program as part of a defense against 

presumptive and vicarious liability is necessary to 

encourage the industry to ensure that diesel fuel will 

comply at all levels and the consumer will get the fuel 

needed. 

SIGMA, PMAA;--and-- the Small- Business Administration 

believe that EPA's proposal will require the testing of 

each shipment of fuel by carriers or distributors. EPA 

agrees that such testing would impose a significant expense 

and time delay on these parties. However, there is no 

requirement in the regulations which imposes such a testing 

scheme. If a party subject to vicarious liability wishes 

to use a defense to any violation, some oversight program 

will be necessary. However, the specific nature of the 

oversight program or the frequency of any sampling is not 

defined. These parameters are to be determined by the 

-77-
P.79 

party involved, but they should be sufficient to allow true 

quality control. 

Testing as part of an oversight program requires 

refiners and importers to use the ASTM standard test method 

D-2622 in the proposed regulations. As already stated, EPA 

will allow the use of ASTM test method D-4294 results for 

an oversight program defense by all parties covered by 

these regulations. 

As part of an oversight program, these are no 

reguirements that any party hold the product until test 

results are available. If test results revealed the 

presence of noncomplying product it would be necessary to 

attempt to retrieve the fuel or divert it to an off-highway 

use. It is possible that the paperwork and invoices which 

currently are associated with diesel fuel distribution will 

be sufficient to track the flow of fuel through the chain. 

This paperwork trail can also be used by upstream parties 

to specify the fuel guality of deliveries to downstream 

parties. 

EPA believes that there will be economic incentives to 

attempt to use off-highway fuel for on-highway markets. 

Many wholesale purchaser-consumers will be tempted by the 

expected price differential to switch on- and off-highway 

-78-
P.80 

fuel for immediate economic gain. Only the potential of 

enforcement action at all points in the distribution chain 

will provide the necessary deterrence. The Agency expects 

to implement a comprehensive enforcement program similar to 

those currently used in the leaded fuel and RVP programs. 

It is not anticipated that these programs will prove to be 

too complex for effective enforcement action to occur. 

Therefore, the enforcement provisions outlined in the 

proposed rule will be retained for this Final Rule, 

including the presumptive and vicarious liability 

provisions. 

Issue: Dyeing of Imported Canadian Fuel 

EPA proposed that any undyed diesel fuel would be 

considered on-highway fuel while off-highway fuel would be 

dyed with a blue dye. Some independent marketers import 

off-highway diesel fuel from Canada which has already been 

dyed red. 

Summary of the Comments 

The Society of Independent Gasoline Marketers of 

America (SIGMA) was concerned with EPA's requirements that 

off-highway diesel fuel be dyed blue. This concern arose 

from the fact that off-highway diesel fuel imported from 

-79-
P.81 

Canada will be dyed red. Likewise, many independent 

marketers import heating oil which is undyed or clear. The 

undyed fuel could be confused by U.S. Customs Service 

agents as "motor fuel" at a higher duty rate. 

Analysis of the Comments 

Any imported diesel fuel intended for off-highway use 

will have to be dyed with the blue dye specified in today's 

regulations. Apparently, the red dye which is added to 

off-highway diesel fuel in Canada is added at the terminal 

prior to shipping. Therefore, fuel destined for 

importation to the United States can have the red dye 

omitted at the shipping point. Importers of heating oil 

which is undyed will have to add blue dye to the fuel at 

the point and time of importation, regardless of the 

source. Otherwise, the fuel would be considered to be 

on-highway fuel subject to the on-highway fuel standards. 

Issue: Testing Variability for Compliance 

EPA proposed a sulfur standard of 0.05 weight percent 

and proposed ASTM test method D-2622 for enforcement 

testing. Due to test variability and the fact that EPA did 

not identify a test tolerance level against the standard, 

manufacturers will have to produce below the standard. 

-80-
P.82 

Summary of the Comments 

The American Petroleum Institute (API), Phillips, and 

Amoco all raised concerns that the sulfur standard of 0.05 

weight percent does not take test method variability into 

account for compliance purposes. The Rocky Mountain Oil 

and Gas Association (RMOGA) also expressed concern that no 

fuel test tolerance limits are established in the proposed 

regulations. Conoco and Phillips both pointed out that the 

reproducability of the ASTM test method D-2622 is 0.008 

weight percent at the 95 percent confidence limit. This 

fact would effectively require refiners to meet a 0.042 

weight percent standard for sulfur at all times if they 

would expect to always test below 0.05 weight percent. 

API, Amoco and RMOGA agreed that this will require lower 

end "stacking" of margins and will require blending below 

the standard, which could be a serious and costly 

disadvantage to the manufacturer and an additional cost to 

the consumer. RMOGA pointed out that even greater margins 

would be required for downstream compliance due to 

vicarious liability. 

Conoco stated that this would actually result in a 

twenty percent penalty below the standard, which is severe 

and not supported by engine manufacturers' reguirements. 

The resultant 0.04 weight percent sulfur maximum thus 

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P.83 

needed to show compliance is outside the agreement reached 

by the concerned industries. Amoco stated that many 

refiners will use less expensive instruments which will 

have precision and reproducibility inferior to that 

reguired by ASTM test method D-2622. The final regulations 

therefore needed a statement to establish a confidence 

level so refiners could establish quality control 

specifications. API suggested that refiners or suppliers 

substantiate, through record keeping, that each blend 

tested is less than the EPA standard, and in addition, the 

average of all blends was below the standard by the test 

compliance margin. API believed this would be a reasonable 

and effective basis for compliance. 

Analysis of the Comments 

The Agency recognizes that test variability exists 

with the ASTM test method D-2622. The issue of what 

enforcement tolerance should be allowed when using these 

methods will be addressed in a manner consistent with other 

mobile source related standards. The diesel fuel refiners 

and other regulated parties will be expected to meet the 

applicable sulfur and cetane limits as established by the 

regulations. They must take test variability into account 

in producing and marketing diesel fuel and cannot rely on 

the Agency to automatically provide an enforcement 

-82-
P.84 

tolerance in addition to the absolute standards established 

for sulfur or cetane limits. For example, if the sulfur 

content of motor vehicle diesel fuel were found to contain 

0.06 weight percent sulfur, this would be considered a 

violation of the regulatory standard that could subject 

liable parties to enforcement action. 

Issue: Enforcement for Misfueling 

EPA proposed an enforcement scheme which would require 

that all parties in the distribution chain comply with the 

diesel fuel standards for sulfur weight percent and cetane 

index. Not explicitly included were persons who may 

misfuel by using noncomplying fuel in their equipment 

designed to operate on complying fuel. 

Summary of the Comments 

The American Petroleum Institute (API), the Rocky 

Mountain Oil and Gas Association (RMOGA), and the National 

Petroleum Refiners Association (NPRA) all believed that 

enforcement of the fuel standards should focus on potential 

misfuelers. NPRA was disappointed that EPA did not include 

in the proposed rule any enforcement mechanisms for 

reducing intentional misfueling. They pointed out that EPA 

did not address what enforcement action it plans to take 

-83-
P.85 

when a party purposely introduces noncomplying dyed 

material into highway vehicles. 

API, RMOGA and NPRA all believe that dyeing of 

noncomplying material by.fuel suppliers coupled with strict 

enforcement action by EPA against misfuelers would be very 

effective to ensure the benefits of the program are 

realized. NPRA states that strict enforcement against 

end-user misfueling could also reduce the loss of federal 

tax revenues. 

Analysis of the Comments 

The proposed regulations established an enforcement 

scheme which includes all parties in the distribution 

chain. Similar to other fuel regulations enforced by EPA, 

the individual who misfuels their own vehicle is not 

specifically covered by this proposal. The current 

language in the Clean Air Act (Act) does not cover 

individuals as parties to whom these prohibitions apply. 

However, those parties who do their own fueling who are 

fleet operators or persons in the business of servicing or 

leasing motor vehicles or motor vehicle engines (which 

would include nearly all heavy-duty operation) would be 

covered by the tampering prohibition contained in Section 

203(a)(3) of the Act. 

-84-
In the terms of Section 203(a)(3), the introduction of 

noncomplying fuel may render inoperative those specific 

devices or elements of design for which complying fuel is 

reguired. This constitutes tampering and is a violation of 

the Act for which the Agency does pursue enforcement. If 

instances arise where misfueling is occurring where the 

party doing the misfueling is a covered party under Section 

203(a)(3), the Agency may undertake enforcement action. 

Issue: Applicability to Hawaii and Pacific 

Territories 

As proposed, the diesel fuel reguirements would have 

applied to the 50 states, the District of Columbia and U.S 

Territories. No consideration was given to the possibility 

of exempting any regions from the rule in either the NPRM 

or in the draft regulatory impact analysis. The American 

Samoa government and Pacific Resources, Inc. have raised 

the issue of a possible exemption for Hawaii and the 

Pacific territories. 

Summary of Comments 

Pacific Resources, Inc. and the American Samoa 

government have requested that Hawaii and the Pacific 

territories be exempted from the rule. They argue that 

these islands are attainment areas for particulate matter 

-85-
P.87 

and are likely to remain so due to geographic isolation and 

naturally occurring trade winds. Furthermore, the region 

uses very little on-highway diesel fuel, with Hawaii 

consuming only approximately 1,000 barrels per day of 

on-highway diesel fuel (7% of the daily consumption of 

diesel fuel) and about 4,500 barrels per year of on-highway 

diesel fuel being used in American Samoa (0.5% of the 

annual consumption of diesel fuel). The commenters argued 

that exemption of these areas would not impact the 

remainder of the country due to geographic isolation. 

Furthermore, American Samoa has no indigenous production of 

diesel fuel, relying solely on imports for fuel. 

Forty-five percent of the fuel is imported from Pacific 

Resources, Inc. and the remaining fifty-five percent is 

imported from three companies in Singapore. The American 

Samoa government believes availability of low-sulfur fuel 

from Singapore is unlikely and the government, which is the 

sole owner of fuel storing tankage, has facilities for 

storing only one grade of fuel without good prospects for 

being able to add additional storage. 

Analysis of Comments 

While recognizing the attainment status of these areas 

and potential difficulties in complying, the Agency 

believes it is necessary to include them in the Final 

-86-
Rule. A primary reason for promulgating the . rule is to 

provide low-sulfur fuel necessary for the proper operation 

of 1994 and later diesel vehicles. Without low-sulfur 

fuel, emission control equipment on these vehicles could be 

rendered permanently inoperative. Since vehicles with 

advanced technology will be operating, in Hawaii and the 

Pacific territories in the future, low-sulfur fuel must be 

made available. Therefore, the original scope of the 

proposal is retained for this Final Rule. 

III. Description of the Final Rule 

This section summarizes the control measures contained 

in today's final rule. The detailed requirements may be 

found in their entirety in the regulations published with 

today's final rule. 

A. Commercial Fuel Requirements 

1. Standards 

After September 30, 1993, all diesel fuel sold, 

supplied, offered for sale or supply, dispensed, or 

transported in any state for use in on-highway diesel 

vehicles shall contain no more than 0.05 percent sulfur by 

weight, and shall have either a minimum cetane index of 40 

or a maximum aromatics content of 35 percent by volume. 

-87-
P.89 

The only exception to these requirements is a two year 

extension of the effective date, with various interim 

restrictions, applicable to qualifying small domestic 

refiners. Under this extension any fuel produced by small 

refiners for on-highway use is required to have a sulfur 

content of 0.25 weight percent or less after September 30, 

1993, 0.10 weight percent or less after September 30, 1994, 

and 0.05 weight percent or less after September 30, 1995. 

Any fuel of sulfur content greater than 0.05 weight percent 

produced under this extension must be dyed and segregated 

from fuel with a sulfur content of 0.05 weight percent or 

less, as described earlier in Section II - Public 

Participation. 

2. Enforcement Provisions 

a. Overall Enforcement Scheme. All parties in the 

distribution network are covered by these regulations, 

including refiners, importers, distributors, carriers, 

resellers, retail and wholesale purchaser-consumers. Any 

diesel fuel for use in motor vehicles must comply with the 

the applicable standards when introduced into commerce, 

sold, offered for sale, supplied, offered for supply, 

dispensed, or transported. Once diesel fuel has been 

introduced into the distribution network, the fuel must 

comply with these standards at all points up to and 

-88-
P.90 

including the time it leaves the pump. Additionally, under 

EPA's antitampering provisions, any fleet operator or other 

party subject to the requirements of Section 203(a)(3) of 

the Clean- Air Act who misfueled any heavy-duty diesel 

vehicle with non-on-highway diesel fuel, or any heavy-duty 

diesel vehicle equipped with a 1994 or later model year 

diesel engine with fuel produced under the small refiner 

extension, would be liable for prosecution. 

The regulations define cetane, cetane index, diesel 

fuel, sulfur percentage, refinery, retail outlet, 

distributor, reseller, wholesale purchaser-consumer, 

importer, carrier, aromatic content, small refinery, and 

exempted on-highway diesel fuel. They also contain special 

provisions governing the production and sale of fuel under 

the small refiner extension. Reference methods for 

determining cetane index, sulfur percentage and aromatics 

content are also included. 

This Final Rule also sets forth regulations 

establishing presumptions of liability for parties found 

with noncomplying fuel. There is also a presumptive and 

vicarious liability provision which holds certain upstream 

parties in the distribution network responsible for 

violations at downstream facilities over which they could 

have exercised some control. Defenses to presumptive and 

vicarious liability are included in the regulations. 

-89-
P.91 

Finally, this Final ..Rule includes a vehicle labeling 

provision. Under this provision, any diesel vehicle 

produced for on-highway use in model year 1994 or later is 

required to be clearly labeled with nonremovable labels 

bearing the words "low-sulfur diesel fuel only" at both the 

filler pipe area and on the dashboard. 

b. Sampling Methodology. The sampling methodology 

is set forth in Appendix G. The sampling procedures 

include nozzle sampling, bottle sampling, tap sampling, and 

manual line sampling, The purpose of the sampling 

methodology is to assure that the sample taken is true and 

unaltered and is representative of the diesel fuel being 

tested. 

c. Testing Methodologies. Four testing 

methodologies are included in this Final Rule. The first 

one, ASTM standard test method D 2622-87, determines the 

percentage of sulfur in the diesel fuel by means of X-ray 

spectrometry. The second test, ASTM standard test method 

D 4294-83, determines the percentage, of sulfur in the 

diesel fuel by means of nondispersive x-ray fluorescence 

spectrometry. The third test, ASTM standard method 

D 976-80, is a method for estimating the ASTM cetane index 

of the diesel fuel from the API gravity and mid-boiling 

point. Finally, ASTM standard test method D 1319-88 is 

-90-
provided for use in determining fuel aromatic content. 

While the first, third and fourth methods are identified as 

the reference methods to be used by EPA in its enforcement 

testing programs, the regulations provide for use of the 

second test method for sulfur by regulated parties upon 

sufficient showing of equivalence. 

The issue of what enforcement tolerance should be 

allowed when using these test methods will be addressed in 

a manner consistent with other mobile source related 

standards. The diesel fuel refiners and other regulated 

parties will be expected to meet the applicable sulfur and 

cetane limits as established by the regulations. They must 

take test variability into account in producing and 

marketing diesel fuel and cannot rely on the Agency to 

automatically provide an enforcement tolerance in addition 

to the absolute standards established for sulfur or cetane 

limits. For example, if the sulfur content of motor 

vehicle diesel fuel were found to contain 0.06 weight 

percent sulfur, this would be considered a violation of the 

regulatory standard that could subject liable parties to 

enforcement action. 

d. Liability Provisions. The liability provisions 

(40 CFR 80.30) are patterned after the liability scheme 

used in the Agency's lead contamination regulations, at 40 

-91-
CFR 80.23 and are almost identical to the volatility 

regulations, at 40 CFR 80.27. One of the main features of 

these provisions is the presumption of liability where 

regulated parties are found offering for sale, supplying, 

or transporting diesel fuel which fails to meet the 

requirements for sulfur percentage or cetane index. It is 

the responsibility of each regulated party to monitor the 

diesel fuel which is being offered for sale, supplied or 

transported to verify that the fuel complies with standards. 

Another important feature of the diesel fuel 

enforcement provisions is the inclusion of vicarious 

liability provisions, much like those used successfully in 

the lead contamination regulations and recently promulgated 

in the volatility regulations. Vicarious liability means 

that parties upstream from the site of the violation can be 

held responsible for violations found at downstream 

facilities over which they can exercise some control. The 

proposed regulations will also extend vicarious liability 

for violations at nonbranded retail outlets and wholesale 

purchaser-consumers to refiners and importers. This change 

from previous schemes places all parties on the same level 

in terms of oversight for assuring product quality. Years 

of enforcement experience with the gasoline regulations 

have shown that a far larger percentage of violations occur 

at nonbranded facilities. 

-92-
P.94 

Defenses to vicarious liability are set forth in the 

regulations. Basically, an upstream party can avoid 

vicarious liability if that party can show that the 

violation was caused by actions of someone other than that 

party's employees or agents. For the purpose of these 

regulations, carriers will be presumed to be the agents of 

distributors and are also presumptively liable. The 

specific evidence required to support this defense varies 

depending on which party is raising the defense, but in 

general a party must show proof of some kind of oversight 

program, such as records of testing of the diesel fuel or a 

contractual obligation between the upstream and the 

downstream parties involved. 

When this rule was proposed on August 24, 1989, 

carriers, distributors and resellers were required as part 

of the affirmative defense to show bills of lading, 

invoices, delivery tickets, loading tickets or other 

documents from the refiner or importer which represented 

that the fuel was in compliance with on-highway diesel fuel 

standards. This provision has not been included in the 

final rule. In National Tank Truck Carriers Inc. v. United 

States Environmental Protection Agency and William K. 

Reilly, Administrator, (D.C. Cir. June 26, 1990), the U.S. 

Court of Appeals for the District of Columbia Circuit 

struck down an identical provision in the Volatility 

-93-
P.95 

Regulations for Gasoline and Alcohol Blends Sold in 

Calendar Years 1989 and Beyond, 54 Fed. Reg. 11,868 

(1989). The court held that EPA had not adequately 

explained the reason why carriers had "to produce 

documentation from the shippers attesting to the lawfulness 

of each shipment even though the regulations do not impose 

a corresponding obligation on shippers that they provide 

the carriers with such documentation." The court remanded 

the case to EPA to consider further action. The provision 

in the proposed regulation that imposed this requirement 

has been deleted from the final rule. Among the options 

the Agency is considering is adding a new provision to the 

rule which would reguire shippers as well as carriers to 

maintain and provide the necessary documentation. 

3. Small Refiner Provisions 

A two-year extension for small refiners, which 

includes interim sulfur level caps, is included in today's 

Final Rule. Qualifying U.S. domestic small refiners are 

required, for any on-highway diesel fuel they produce, to 

not exceed 0.25 weight percent sulfur beginning 

October 1, 1993, 0.10 weight percent sulfur beginning 

October 1, 1994, and 0.05 weight percent sulfur beginning 

October 1, 1995. In addition, any on-highway diesel fuel 

produced under this extension must be segregated from other 

on-highway diesel fuel. To provide for effective 

-94-
P.96 

segregation, the regulations call for dyeing of the fuel, 

dispensing from separate pumps (and separate islands where 

more than one island is used for diesel fuel) and the 

prominent labeling of pumps and islands. They also require 

any retailer selling fuel under the extension provisions to 

also sell on-highway fuel with a sulfur content of 0.05 

weight percent or less. 

To be eligible for this extension, small refineries 

must meet certain limitations for refiner and refinery 

capacity, must demonstrate a commitment to comply with the 

0.05 weight percent limit by the end of the extension 

period, and will be limited as to the maximum amount of 

on-highway fuel produceable under the extension. 

Small refinery capacity limitations are as follows. 

First, the refinery in question must have a crude oil or 

bona fide feedstock capacity of 50,000 barrels per day or 

less. Second, the refinery must be owned or controlled by 

a refiner with a total combined crude oil or bona fide 

feedstock capacity of 137,500 barrels per day or less. 

These capacities are to be measured in terms of the average 

of the actual daily crude oil or bona fide feedstock use 

during the period January 1, 1988 through December 31, 

1989, calculated as barrels" per calendar day. Furthermore, 

only refineries located in a State, the District of 

-95-
P.97 

Columbia, the Commonwealth of Puerto Rico, the Virgin 

Islands, Guam, American Samoa or the Commonwealth of the 

Northern Mariana Islands are eligible for an extension. 

Refiner capacity relative to the 137,500 barrels per day or 

less limit refers to worldwide capacity owned or controlled 

by that refiner. 

Participating small refiners will also be required to 

demonstrate by July 1, 1993 a commitment to produce diesel 

fuel meeting the 0.05 weight percent limit by October l, 

1995. This demonstration will require copies of contracts 

entered into for design and construction of the necessary 

equipment and copies of approved permits to construct the 

equipment. Additionally, to qualify for the second year of 

the extension, small refiners must submit evidence by July 

1, 1994 demonstrating that on-site construction has begun. 

Lastly, the amount of fuel sold under this extension 

by each qualifying small refiner will be limited to no more 

than the average of its annual production of on-highway 

fuel during the period October 1, 1989 to September 30, 

1990. On-highway fuel production will be estimated from 

amounts reported as on-highway diesel fuel for Federal 

excise tax purposes. This amount can include fuels for 

which the refinery reported the sales as well as a portion 

of the fuel sold through licensed re-sellers. The 

-96-
P.98 

on-highway portion of the fuels sold through licensed 

re-sellers may be assumed to be the same as the average 

on-highway fraction of sales reported by that customer, 

unless suitable evidence, acceptable to the Administrator, 

indicates otherwise. 

B. Fuel Specifications for Vehicle Certification 

and Other Compliance Testing 

Certification fuel used for 1991-1993 model year 

engines shall contain 0.10 sulfur percentage by weight 

(

±

0.02 weight percent). Beginning with the 1994 model 

year, certification fuel shall have a sulfur content 

ranging from 0.03 to 0.05 sulfur percentage by weight and a 

minimum cetane index of 40. All other compliance testing 

(e.g., recall, selective enforcement audits) will be 

conducted using test fuels meeting the same sulfur 

specifications as the test fuel used in certifying the 

particular model year vehicle being tested. That is, 

1991-1993 model year engines would be tested with fuel 

containing 0.10 sulfur percentage by weight ( + 0.02 weight 

percent) and 1994 and later model year engines would be 

tested with fuel having a sulfur content ranging from 0.03 

to 0.05 sulfur percentage by weight and a minimum cetane 

index of 40. 

-97-
P.99 

In general, properties specified for fuels used in 

emissions testing are intended to be representative of the 

properties of fuels commercially available and in-use 

during the time period of the testing. The only exception 

to this is the sulfur level specified for 1991-93 test 

fuels, which is selected to represent the average sulfur 

content of fuels used over the lifetimes of engines 

manufactured during these years. This rule also clarifies 

the fact that the commercial grade of fuel (i.e., "Type 

1-D" or "Type 2-D") used for emissions testing shall be the 

grade which will be the predominant fuel burned in actual 

use of the engine family. The regulations establish a 

presumption that this grade will be Type 2-D diesel fuel. 

Type 1-D diesel fuel may be substituted provided the 

manufacturer has submitted evidence to the Administrator 

sufficient to establish that such fuel will be the 

predominant fuel in-use for that engine family. Evidence 

could include such things as copies of executed contracts 

from customers indicating the intent to purchase and use 

Type l-D diesel fuel as the primary fuel. 

Two other minor changes are included in the test fuel 

specifications to correct errors in the proposal. The 

first adds a minimum cetane index specification of 40 to 

1994 and later service accumulation fuels. This value was 

inadvertently omitted from the proposal. The second change 

-98-
p.1 

corrects the cetane index range for 1994 and later Type 1-D 

diesel test fuel to read 40-54. Due to a typographical 

error the proposed range was listed as 40-42. 

IV. Regulatory Flexibility Analysis 

Section 605 of the Regulatory Flexibility Act requires 

EPA to perform an analysis of the impact of regulations on 

small entities when a significant impact on a substantial 

number of such entities would occur. Based on its analysis 

of the comments received EPA has concluded that, as 

originally proposed, this rule could have had significant 

impacts on small refiners, and thus has included a limited 

two-year extension in the Final Rule to ease the regulatory 

burden on these small entities. EPA believes that with 

this extension the potential adverse impact on small 

refiners is effectively mitigated. A full discussion of 

the small refiner issue is included in the Public 

Participation section of this Preamble. 

In response to comments on its proposal from small 

marketers, EPA has also conducted a Regulatory Flexibility 

Analysis of the potential impacts on small marketers.[5] 

[5] Impacts of Fuel Desulfurization on Distillate 

Marketers, March 13, 1990, ICF Incorporated. 

-99-
P.2 

As discussed in more detail earlier in this Preamble, the 

small marketer Analysis found that the cost and competitive 

impacts of this Action on small marketers would generally 

be small and that all but the financially weakest firms 

would be able to handle the extra grade of fuel resulting 

from this rule. 

V. Administrative Designation and Regulatory Analysis 

The Administrator has determined that this action will 

constitute a major regulation and, therefore, is subject to 

the reguirement that a Regulatory Impact Analysis be 

prepared. In support of the NPRM a Draft Regulatory Impact 

Analysis was prepared which included detailed assessments 

of the estimated economic and environmental impacts of the 

proposed regulations, as well as thorough analyses of the 

technological feasibility of the proposed emission 

standards and other regulatory provisions and the 

alternatives that were considered in the development of the 

NPRM. Since the regulations in today's final rule are 

largely the same as proposed in the NPRM, and since little 

substantive comment was received on the analyses contained 

in the Draft Regulatory Impact Analysis, the Agency has 

conducted no further analyses of the costs and benefits of 

today's Final Rule. The only change for the final 

Regulatory Impact Analysis involves the deletion, noted 

-100-
P.3 

earlier in this preamble, of the cancer risk assessment 

which was found to contain significant errors. 

The Regulatory Impact Analysis has been placed in the 

public docket referenced at the beginning of today's 

notice. In addition, interested parties may obtain single 

copies through a written request to the public contact 

listed previously. 

This regulation was submitted to the Office of 

Management and Budget (OMB) for review as required by 

Executive Order 12291. Any written comments from OMB and 

any EPA response to those comments are in the public docket 

for this rulemaking. 

VI. Reporting and Recordkeeping Requirements 

The information collection requirements contained in 

this final rule have been approved by the Office of 

Management and Budget (OMB) under the Paperwork Reduction 

Act of 1980, 44 U.S.C. 3501 et seq., and have been assigned 

OMB Control Number 2060-0200. The public reporting 

requirements of this rule will affect small refiners 

applying for benefits under the small refiner 

provisions. The public reporting burden for this 

collection is estimated to be 737 hours per response, 

-101-
P.4 

including time for reviewing instructions and completing 

and reviewing the collection of information. 

Send comments regarding the burden estimate or any 

other aspect of this collection of information, including 

suggestions for reducing this burden, to: 

Chief, Information Policy Branch 

PM-223, U.S. Environmental Protection Agency 

401 M Street, S.W.; Washington, D.C. 20460 

and to the: 

Office of Information and Regulatory Affairs 

Office of Management and Budget 

Washington, D.C, 20503 

"Attention Desk Officer for EPA." 

VII. Statutory Authority 

Authority for the actions included in today's final 

rule is granted to EPA by sections 114, 202, 206, 207, 208, 

211, and 301 of the Clean Air Act (42 U.S.C. 7414, 7521, 

7525, 7541, 7542, 7545, and 7601). 

-102-
P.5 

VIII. List of Subjects 

40 CFR Part 80 

Fuel additives, Diesel fuel, Incorporation by 

reference, Motor vehicle pollution, Penalties, Reporting 

and recordkeeping requirements. 

40 CFR Part 86 

Administrative practice and procedures, Air pollution 

control, Diesel fuel, Motor vehicles, Labeling, Motor 

vehicle pollution, Reporting and recordkeeping requirements. 

DATE: 

Administrator 

-103-
P.6 

For the reasons set out in the preamble, Parts 80 and 86 

of Title 40 of the Code of Federal Regulations are amended as 

follows: 

PART 80—REGULATION OF FUELS AND FUEL ADDITIVES 

1. The "Authority" citation for Part 80 continues to 

read as follows: 

Authority: Sections 114, 211 and 301(a) of the Clean Air 

Act as amended, 42-U S.C. 7414, 7545 and 7601(a). 

2. Section 80.2 is aruended by revising paragraphs (h), 

(j)/ (1)» (n), (o), (r), and (t), and by adding new paragraphs 

(w), (x), (y), (z), (aa) and (bb) to read as follows: 

§ 80.2 Definitions 

(h) "Refinery means a plant at which gasoline or diesel 

fuel is produced. 

(j) "Retail outlet" means any establishment at which 

gasoline or diesel fuel is sold or offered for sale for use in 

motor vehicles. 
P.7 

(1) "Distributor" means any person who transports or 

stores or causes the transportation or storage of gasoline or 

diesel fuel at any point between any gasoline or diesel fuel 

refinery or importer's facility and any retail outlet or 

wholesale purchaser-consumer's facility. 

(n) "Reseller" means any person who purchases gasoline 

or diesel fuel identified by the corporate, trade, or brand 

name of a refiner from such refiner or a distributor and 

resells or transfers it to retailers or wholesale 

purchaser-consumers displaying the refiner's brand, and whose 

assets or facilities are not substantially owned, leased, or 

controlled by such refiner. 

(o) "Wholesale purchaser-consumer" means any 

organization that is an ultimate consumer of gasoline or diesel 

fuel and which purchases or obtains gasoline or diesel fuel 

from a supplier for use in motor vehicles and receives delivery 

of that product into a storage tank of at least 550-gallon 

capacity substantially under the control of that organization. 

(r) "Importer" means a person who imports gasoline, 

gasoline blending stocks or components, or diesel fuel from a 

foreign country into the United States (including the 

Commonwealth of Puerto Rico, the Virgin Islands, Guam, American 

Samoa, and the Northern Mariana Islands). 

-2-
P.8 

(t) "Carrier" means any distributor who transports or 

stores or causes the transportation or storage of gasoline or 

diesel fuel without taking title to or otherwise having any 

ownership of the gasoline or diesel fuel, and without altering 

either the quality or quantity of the gasoline or diesel fuel. 

(w) "Cetane index" or "Calculated cetane index" is a 

number representing the ignition properties of diesel fuel oils 

from API gravity and mid-boiling point as decermined by ASTM 

standard method D 976-80, entitled "Standa. d Methods for 

Calculated Cetane Index of Distillate Fuels". ASTM test method 

D 976-80 is incorporated by reference. This incorporation by 

reference was approved by the Director of the Federal Register 

in accordance with 5 U.S.C. 552(a) and 1 CFR Part 51. A copy 

may be obtained from the American Society for Testing and 

Materials, 1916 Race Street, Philadelphia, PA 19103. A copy 

may be inspected at the Air Docket Section (A- 130), Room 

M-1500, U.S. Environmental Protection Agency, Docket No. 

A-86-03, 401 M Street, S.W., Washington, D.C. 20460 or at the 

Office of the Federal Register, 1100 L Street, N.W., Room 8401, 

Washington, D.C. 20005. 

(y) "Sulfur percentage" is the percentage of sulfur as 

determined by ASTM standard test method D 2622-87, entitled 

"Standard Test Method for Sulfur in Petroleum Products by X-Ray 

-3-
P.9 

Spectrometry". ASTM test method D 2622-87 is incorporated by 

reference. This incorporation by reference was approved by the 

Director of the Federal Register in accordance with 5 U.S.C. 

552(a) and 1 CFR Part 51. A copy may be obtained from the 

American Society for Testing and Materials, 1916 Race Street, 

Philadelphia, PA 19103. A copy may be inspected at the Air 

Docket Section (A-130), Room M-1500, U.S. Environmental 

Protection Agency, Docket No. A-86-03, 401 M Street, S.W., 

Washington, D.C. 20460 or at the Office of the Federal 

Register, 1100 L Street, N.W., Room 8401, Washington, D.C. 

20005. 

(z) "Aromatic content" is the aromatic hydrocarbon 

content in volume percent as determined by ASTM standard test 

method D 1319- 88, entitled "Standard Test Method for 

Hydrocarbon Types in Liquid Petroleum Products by Fluorescent 

Indicator Adsorption". ASTM test method D 1319-88 is 

incorporated by reference. This incorporation by reference was 

approved by the Director of the Federal Register in accordance 

with 5 U.S.C. 552(a) and 1 CFR Part 51. A copy may be obtained 

from the American Society for Testing and Materials, 1916 Race 

Street, Philadelphia, PA 19103. A copy may be inspected at 

the Air Docket Section (A-130), Room M-1500, U.S. Environmental 

Protection Agency, Docket No. A-86-03, 401 M Street, S.W., 

Washington, D.C. 20460 or at the Office of the Federal 

Register, 1100 L Street, N.W., Room 8401, Washington, D.C. 

20005. 

-4-
P.10 

(aa) 

refinery 

(D 

"Small refinery" means a domestic diesel fuel 

Which has a crude oil or bonafide feedstock capacity 

of 50,000 barrels per day or less, and 

(2) 

a total 

Which is not owned or controlled by any refiner with 

combined crude oil or bonafide feedstock capacity 

greater than 137,500 barrels per day. 

The 

average 

refiners 

December 

above capacities shall be measured in terms of the 

of the actual daily utilization rates of the affected 

or refineries during the period January 1, 1988 to 

31, 1990. These averages will be calculated as barrels 

per calendar day. 

(bb) 

fuel whii 

"Exempted on-highway diesel fuel" means any diesel 

zh is produced by a small refinery under the provisions 

of sections 80.29(a)(2) and 80.29 (c). 

(x) 

suitable 

vehicle 

sold as < 

"Diesel fuel" means any fuel sold in any State and 

for use in diesel motor vehicles and diesel motor 

engines, and which is commonly or commercially known or 

ftiesei fuel. 

-5-
P.11 

3. New section 80.29 is added, to read as follows: 

§ 80.29 Controls and prohibitions on diesel fuel quality. 

(a) Prohibited activities. 

(1) Except as provided in subparagraph (2), beginning 

October 1, 1993, no refiner, importer, distributor, reseller, 

carrier, retailer or wholesale purchaser-consumer shall 

manufacture, introduce into commerce, sell, offer for sale, 

supply, dispense, offer for supply, or transport any diesel 

fuel for use in motor vehicles unless the diesel fuel is free 

of visible evidence of the dye 1, 4 - dialkylamino 

anthraquinone and has a cetane index of at least 40, or a 

maximum aromatic content of 35 volume percent, and a sulfur 

percentage no greater than 0.05 percent. 

(2) On-highway diesel fuel produced under the small 

refiner provisions of paragraph (c) may exceed the sulfur 

standard of subparagraph (1) during the period from October 1, 

1993 through September 30, 1995 so long as it meets the 

following alternative standards: 0.25 weight percent from 

October 1, 1993 through September 30, 1994, and 0.10 weight 

percent from October 1, 1994, through September 30, 1995. Such 

on-highway diesel fuel shall be produced in conformity with 

all of the provisions of paragraph (c) and shall not be sold, 

supplied or • dispensed to 1994 or later model year motor 

vehicles. 

-6-
(b) Determination of compliance. Any diesel fuel which 

does not show visible evidence of being dyed with 1, 4 -

dialkylamino - anthraquinone (which has a characteristic 

blue-green color in diesel fuel) shall be considered to be 

available for use in diesel motor vehicles and motor vehicle 

engines, and shall be subject to the prohibitions of paragraph 

(a). Compliance with the standards listed in paragraph (a) 

shall be determined by the use of one of the sampling 

methodologies specified in Appendix G to this part. 

(c) Small refinery compliance. 

(1) Where a small refinery intends to use the sulfur 

standard extension in subparagraph (a)(2) of this section, the 

refiner shall submit to the Administrator by July 1, 1993, 

evidence of capital commitments to make the necessary 

modifications to supply low sulfur diesel fuel on or before 

October 1, 1995. Such evidence shall include copies of 

executed and binding contracts for design and construction, and 

copies of approved permits for construction of the equipment. 

In order to qualify for the second year of the extension, the 

refiner shall provide evidence by July 1, 1994, that on-site 

construction has begun. The Administrator shall, upon review 

and acceptance of this evidence, provide a letter to the 

refinery which qualifies it as a small refinery allowed to 

produce and sell exempted on-highway diesel fuel. A separate 

qualification letter shall be obtained for each of the 

following one-year periods: October 1, 1993 to September 30, 

1994; and October 1, 1994 to September 30, 1995. 

-7-
P.13 

(2) The volume of exempted on-highway diesel fuel sold 

by a small refinery during each one-year period October 1, 1993 

to September 30, 1994, and October 1, 1994 to September 30, 

1995, shall be limited to the average of the annual amount of 

on-highway diesel fuel produced at the refinery during the 

period October 1, 1989 to September 30, 1990. On-highway 

diesel fuel production shall be that amount reported as 

on-highway diesel fuel for Federal excise tax purposes. This 

amount can include fuels for which the refinery reported the 

sales as well as a portion of the fuel sold through licensed 

re-sellers. The on-highway portion of the fuels sold through 

licensed re-sellers may be assumed to be the same as the 

average on-highway fraction of sales reported by that customer, 

unless suitable evidence, acceptable to the Administrator, 

indicates otherwise. 

(3) Refiners who produce exempted on-highway diesel fuel 

shall dye it to distinguish it from other diesel fuel. The dye 

for this purpose shall be a purple dye mixture of approximately 

38 percent by volume Xylene, 50 percent by volume Color Index 

(CI) solvent blue 99 and 12 percent by volume CI solvent red 

166. The dye shall be added to exempted on-highway diesel fuel 

at a minimum concentration of 20 parts per million by volume. 

-8-
P.14 

(4) Any retailer who sells or offers for sale exempted 

on-highway diesel fuel shall: 

(A) Also offer for sale diesel fuel meeting the 

standards of paragraph (a)(1); and 

(B) Prominently label with a permanent legible label 

each diesel fuel pump stand as follows: 

(i) For diesel fuel pump stands for introduction of 

exempted on-highway diesel fuel into motor vehicles, the label 

shall state: Exempt High Sulfur Diesel Fuel. Not Legal for use 

in 1994 and Later Diesel Engines. 

(ii) For diesel fuel pump stands for introduction of 

diesel fuel meeting the standards of paragraph (a)(1) into 

motor vehicles, the label shall state: Low Sulfur Diesel 

Fuel. Suitable for Use in Any Diesel Engine. 

(5) Any retailer who sells or offers for sale exempted 

on-highway diesel fuel and who dispenses diesel fuel at more 

than one fuel dispensing island shall: 

(A) Place exempted on-highway diesel fuel and low sulfur 

diesel fuel on separate fuel dispensing islands. 

-9-
(B) Prominently label with a permanent legible label each 

fuel dispensing island as follows: 

(i) For a fuel dispensing island where exempted 

on-highway diesel fuel is dispensed into motor vehicles, the 

sign shall state: Exempt High Sulfur Diesel Fuel. Not Legal for 

use in 1994 and Later Diesel Engines. 

(ii) For a fuel dispensing island where low-sulfur diesel 

fuel meeting the standards of paragraph (a)(1) is dispensed 

into motor vehicles, the sign shall state: Low Sulfur Diesel 

Fuel. Suitable for Use in Any Diesel Engine. 

(6) No retailer shall sell, supply, dispense, introduce 

or allow the introduction of exempted on-highway diesel fuel 

into any motor vehicle which is labeled "low sulfur diesel fuel 

only". 

(7) These regulations do not require any retail outlet, 

distributor, reseller, or carrier to sell, supply, offer for 

sale or supply, or transport exempted on-highway diesel fuel. 

However, any of these entities handling exempted on-highway 

diesel fuel must also handle complying on-highway diesel fuel. 

(d) Liability. Liability for violations of paragraph 

(a) and (c) of this section shall be determined according to 

the provisions of § 80.30. 

(e) Penalties. Penalties for violations of paragraph 

(a) and (c) of this section shall be determined according to 

the provisions of § 80.5. 

-10-
P.16 

4. New Section 80.30 is added, to read as follows: 

§ 80.30 Liability for violations of diesel fuel control and 

prohibitions. 

(a) Violations at refiners or importers facilities. 

Where a violation of a diesel fuel standard set forth in § 

80.29 is detected at a refinery or importer's facility, the 

refiner or importer shall be deemed in violation. 

(b) Violations at carrier facilities. Where a violation 

of a diesel fuel standard set forth in § 80.29 is detected at a 

carrier's facilit:-, whether in a transport vehicle, in a 

storage facility, or elsewhere at the facility, the following 

parties shall be deemed in violation: 

(1) The carrier, except as provided in paragraph (g)(1) 

of this section; and 

(2) The refiner or importer at whose refinery or import 

facility the diesel fuel was produced or imported, except as 

provided in paragraph (g)(2) of this section. 

(c) Violations at branded distributor or reseller 

facilities. Where a violation of a diesel fuel standard set 

forth in § 80.29 is detected at a distributor or reseller's 

facility which is operating under the corporate, trade or brand 

name of a refiner or any of its marketing subsidiaries, the 

following parties shall be deemed in violation: 

(1) The distributor or reseller, except as provided in 

paragraph (g)(3) of this section; 

-11-
P.17 

(2) The carrier (if any), if the carrier caused the 

diesel fuel to violate the standard by fuel switching, 

blending, mislabeling, or any other means; and 

(3) The refiner under whose corporate, trade, or brand 

name (or that of any of its marketing subsidiaries) the 

distributor or reseller is operating, except as provided in 

paragraph (g)(4) of this section. 

(d) Violations at unbranded distributor facilities. 

Where a violation of a diesel fuel standard set forth in § 

80.29 is detected at the facility of a distributor not 

operating under a refiner's corporate, trade, or brand name, or 

that of any of its marketing subsidiaries, the following shall 

be deemed in violation: 

(1) The distributor, except as provided in paragraph 

(g)(3) of this section; 

(2) The carrier (if any), if the carrier caused the 

diesel fuel to violate the standard by fuel switching, 

blending, mislabeling, or any other means; and 

(3) The refiner or importer at whose refinery or import 

facility the diesel fuel was produced or imported, except as 

provided in paragraph (g)(2) of this section. 

(e) Violations at branded retail outlets or wholesale 

purchaser-consumer facilities. Where a violation of a diesel 

fuel standard set forth in § 80.29 is detected at a retail 

outlet or at: a wholesale purchaser-consumer facility displaying 

the corporate, trade, or brand name of a refiner or any of its 

-12-
P.18 

marketing subsidiaries, the following parties shall be deemed 

in violation: 

(1) The retailer or wholesale purchaser-consumer, except 

as provided in paragraph (g)(5) of this section; 

(2) The distributor and/or reseller (if any), except as 

provided in paragraph (g)(3) of this section; 

(3) The carrier (if any), if the carrier caused the 

diesel fuel to violate the standard by fuel switching, 

blending, mislabeling, or any other means; and 

(4) The refiner whose corporate, trade, or brand name, 

or that of any of its marketing subsidiaries, is displayed at 

the retail outlet or wholesale purchaser-consumer facility, 

except as provided in paragraph (g)(4) of this section. 

(f) Violations at unbranded retail outlets or wholesale 

purchaser-consumer facilities. Where a violation of a diesel 

fuel standard set forth in § 80.29 is detected at a retail 

outlet or at a wholesale purchaser-consumer facility not 

displaying the corporate, trade, or brand name of a refiner or 

any of its marketing subsidiaries, the following parties shall 

be deemed in violation: 

(1) The retailer or wholesale purchaser-consumer, except 

as provided in paragraph (g)(5) of this section; 

(2) The distributor (if any), except as provided in 

paragraph (g)(3) of this section; 

(3) The carrier (if any), if the carrier caused the 

diesel fuel to violate the standard by fuel switching, 

blending, mislabeling, or any other mean; and 

-13-
P.19 

(4) The refiner or importer at whose refinery or import 

facility the diesel fuel was produced or imported, except as 

provided in paragraph (g)(2) of this section. 

(g) Defenses. (1) In any case in which a carrier would 

be in violation under paragraph (b)(1) of this section, the 

carrier shall not be deemed in violation if he can demonstrate: 

(i) Evidence of an oversight program conducted by the 

carrier, for monitoring the diesel fuel stored or transported 

by that carrier, such as periodic sampling and testing of the 

cetane index and sulfur percentage of incoming diesel fuel, or 

any other evidence that shows that care was taken to avoid 

blending the diesel fuel with anything which would change its 

cetane index or sulfur percentage; and 

(ii) That the violation was not caused by the carrier or 

his employee or agent. 

(2) In any case in which a refiner or importer would be 

in violation under paragraphs (b)(2), (d)(3), or (f)(4) of this 

section, the refiner or importer shall not be deemed in 

violation if he can demonstrate: 

-14-
P.20 

(i) That the violation was not caused by him or his 

employee or agent; and 

(ii) Test results, performed in accordance with the 

sampling and testing methodologies set forth in Appendix G to 

this part, ASTM standard test method D 2622-87 or ASTM standard 

test method D 4294-83 for sulfur percentage (Entitled "Standard 

Test Method for Sulfur in Petroleum Products by Non-Dispersive 

X-Ray Fluorescence Spectrometry". ASTM standard test method 

D 4294-83 is incorporated by reference. This incorporation by 

reference was approved by the Director of the Federal Register 

in accordance with 5 U.S.C. 552(a) and 1 CFR Part 5... A copy 

may be obtained from the American Society for Testing and 

Materials, 1916 Race Street, Philadelphia, PA 19103. A copy 

may be inspected at the Air Docket Section (A-130), Room 

M-1500, U.S. Environmental Protection Agency, Docket No. 

A-86-03, 401 M Street, S.W., Washington, D.C. 20460 or at the 

Office of the Federal Register, 1100 L Street, N.W., Room 8401, 

Washington, D.C. 20005. Parties using this method must be 

able to support their data with a quality control plan and 

demonstrate the ability to accurately perform this test 

method. They must also have evidence from the manufacturer or 

others that it reliably produces results substantially 

equivalent to those produced by ASTM standard test method 

D 2622-87.), and ASTM standard test method D 1319-88 for 

aromatic content or ASTM standard method D 976-80 for cetane 

index, which evidence that the diesel fuel determined to be in 

violation was in compliance with the diesel fuel standards when 

-15-
P.21 

it was delivered to the next party in the distribution scheme. 

(3) In any case in which a distributor or reseller would 

be in violation under paragraphs (c)(1), (d)(1), (e)(2) or 

(f)(2) of this section, the distributor or reseller shall not 

be deemed in violation if he can demonstrate: 

(i) That the violation was not caused by him or his 

employee or agent; and 

(ii) Evidence of an oversight program conducted by the 

distributor or reseller, such as periodic sampling and testing 

of diesel fuel, for monitoring the sulfur percentage and cetane 

index of the diesel fuel that the distributor or reseller 

sells, supplies, offers for sale or supply, or transports. 

(4) In any case in which a refiner would be in violation 

under paragraphs (c)(3) or (e)(4) of this section, the refiner 

shall not be deemed in violation if he can demonstrate all of 

the following: 

(i) Test results, performed in accordance with the 

sampling and testing methodologies set forth in Appendix G to 

this part, ASTM standard test method D 2622-87 or ASTM standard 

-16-
P.22 

test method D 4294-83 for sulfur percentage (Parties using ASTM 

standard test method D 4294-83 must be able to support their 

data with a quality control plan and demonstrate the ability to 

accurately perform this test method. They must also have 

evidence from the manufacturer or others that it reliably 

produces results substantially equivalent to those produced by 

ASTM standard test method D 2622-87.) and ASTM standard test 

method D 1319-88 for aromatic content or ASTM standard method 

D 976-80 for cetane index at the refinery at which the diesel 

fuel was produced, which evidence that the diasel fuel was in 

compliance with the diesel fuel standards when transported 

from the refinery; 

(ii) That the violation was not caused by him or his 

employee or agent; and 

(iii) That the violation: 

(A) Was caused by an act in violation of law (other than 

the Act or this part), or an act of sabotage or vandalism, 

whether or not such acts are violations of law in the 

jurisdiction where the violation of the requirements of this 

part occurred, or 

(B) Was caused by the action of a reseller or a retailer 

supplied by such reseller, in violation of a contractual 

undertaking imposed by the refiner on such reseller designed to 

prevent such action, and despite reasonable efforts by the 

refiner (such as periodic sampling and testing) to insure 

compliance with such contractual obligation, or 

-17-
P.23 

(C) Was caused by the action of a retailer who is 

supplied directly by the refiner (and not by a reseller), in 

violation of a contractual undertaking imposed by the refiner 

on such retailer designed to prevent such action, and despite 

reasonable efforts by the refiner (such as periodic sampling 

and testing) to insure compliance with such contractual 

obligation, or 

(D) Was caused by the action of a distributor subject to 

a contract with the refiner for transportation of diesel fuel 

from a terminal to a distributor, retailer or wholesale 

purchaser-consumer, in violation of a contractual undertaking 

imposed by the refiner on such distributor designed to prevent 

such action, and despite reasonable efforts by the refiner 

(such as periodic sampling and testing) to ensure compliance 

with such contractual obligation, or 

(E) Was caused by a carrier or other distributor not 

subject to a contract with the refiner but engaged by him for 

transportation of diesel fuel from a terminal to a distributor, 

retailer or wholesale purchaser-consumer, despite reasonable 

efforts by the refiner (such as specification or inspection of 

equipment) to prevent such action, or 

(F) Occurred at a wholesale purchaser-consumer 

facility: Provided, however, that if such wholesale 

purchaser-consumer was supplied by a reseller, the refiner must 

demonstrate that the violation could not have been prevented by 

such reseller's compliance with a contractual undertaking 

imposed by the refiner on such reseller as provided in 

-18-
P.24 

paragraph (g)(4)(iii)(B) of this section. 

(iv) In paragraphs (g)(4)(iii)(A) through (E) of this 

section, the term "was caused" means that the refiner must 

demonstrate by reasonably specific showings, by direct or 

circumstantial evidence, that the violation was caused or must 

have been caused by another. 

(5) In any case in which a retailer or wholesale 

purchaser-consumer would be in violation under paragraphs 

(e)(1) or (f)(1) of this section, the retailer or wholesale 

purchaser-consumer shall not be deemed in violation if he can 

demonstrate that the violation was not caused by him or his 

employee or agent. 

(6) In paragraphs (g)(l)(iii), (g)(2)(i), (g)(3)(i), 

(g)(4)(ii) and (g)(5) of this section, the respective party 

must demonstrate by reasonably specific showings, by direct or 

circumstantial evidence, that it or its employee or agent did 

not cause the violation. 

-19-
P.25 

5. New Section 80.31 is added, to read as follows: 

§ 80.31 Controls applicable to motor vehicle manufacturers. 

The manufacturer of any diesel fueled motor vehicle which 

is equipped with a 1994 or later model year diesel engine shall 

affix two or more permanent legible labels reading "Low Sulfur 

Diesel Fuel Only" to such vehicle at the time of its 

manufacture, as follows: 

(a) One label shall be located on the instrument panel so 

as to be readily visible to the operator of the vehicle. The 

required statement may be incorporated into the design of the 

instrument panel rather than provided on a separate label. 

Such label shall not consist of a decal which can be removed by 

the vehicle operator. 

(b) One label shall be located immediately adjacent to 

each diesel fuel filler tank inlet, outside of any filler inlet 

compartment, and shall be located so as to be readily visible 

to any person introducing diesel fuel into such filler inlet. 

The Administrator may, upon application from a motor vehicle 

manufacturer, approve other label locations that achieve the 

purpose of this paragraph. This label shall not be a decal. 

(c) Such labels shall be in the English language in 

block letters which shall be of a color that contrasts with 

their background. 

-20-
6. New Appendix G is added to read as follows: 

APPENDIX G — SAMPLING PROCEDURES FOR DIESEL FUEL 

1. Scope 

1.1 This method covers procedures for obtaining 

representative samples of diesel fuel for the purpose of 

testing for compliance with the cetane index and sulfur 

percentage standards set forth in § 80.29. 

2. Summary of Method 

2.1 It is necessary that the samples be truly 

representative of the diesel fuel in question. The precautions 

required to ensure the representative character of the samples 

are numerous and depend upon the tank, carrier, container or 

line from which the sample is being obtained, the type and 

cleanliness of the sample container, and the sampling 

procedures that are to be used. A summary of the sampling 

procedures and their application is presented in Table 1. Each 

procedure is suitable for sampling a material under definite 

storage, transportation, or container conditions. The basic 

principle of each procedure is to obtain a sample in such 

manner and from such locations in the tank or other container 

that the sample will be truly representative of the diesel fuel. 

-21-
P.27 

3. Description of Terms 

3.1 "Average sample" is one that consists of 

proportionate parts from all sections of the container. 

3.2 "All-levels sample" is one obtained by submerging a 

stoppered beaker or bottle to a point as near as possible to 

the draw-off level, then opening the sampler and raising it at 

a rate such that it is about 3/4 full (maximum 85 percent) as 

it emerges from the liquid. An all-levels sample is not 

necessarily an average sample because the tank volume may not 

be proportional to the depth and because the operator may not 

be able to raise the sampler at the variable rate required for 

proportionate filling. The rate of filling is proportional to 

the square root of the depth of immersion. 

3.3 "Running sample" is one obtained by lowering an 

unstoppered beaker or bottle from the top of the gasoline to 

the level of the bottom of the outlet connection or swing line, 

and returning it to the top of the top of the diesel fuel at a 

uniform rate of speed such that the beaker or bottle is about 

3/4 full when withdrawn from the diesel fuel. 

3.4 "Spot sample" is one obtained at some specific 

location in the tank by means of a thief bottle, or beaker. 

3.5 "Top sample" is a spot sample obtained 6 inches 

(150mm) below the top surface of the liquid (Figure 1 of 

Appendix D). 

3.6 "Upper sample" is a spot sample taken at the 

mid-point of the upper third of the tank contents (Figure 1 of 

Appendix D). 

-22-
P.28 

3.7 "Middle sample" is a spot sample obtained from the 

middle of the tank contents (Figure 1 of Appendix D). 

3.8 "Lower sample" is a spot sample obtained at the 

level of the fixed tank outlet or the swing line outlet (Figure 

1 of Appendix D). 

3.9 "Clearance sample" is a spot sample taken 4 inches 

(100 mm) below the level of the tank outlet (Figure 1 of 

Appendix D). 

3.10 "Bottom sample" is a spot sample obtained from the 

material on the bottom surface of the tank, container, or line 

at its lowest point. 

3.11 "Drain sample" is a tap sample obtained from the 

draw-off or discharge valve. Occasionally, a drain sample may 

be the same as a bottom sample, as in the case of a tank car. 

3.12 "Continuous sample" is one obtained from a pipeline 

in such manner as to give a representative average of a moving 

stream. 

3.13 "Nozzle sample" is one obtained from a diesel pump 

nozzle which dispenses diesel fuel from a storage tank at a 

retail outlet or a wholesale purchaser-consumer facility. 

4. Sample Containers 

4.1 Sample containers may be clear or brown glass 

bottles, or cans. The clear glass bottle is advantageous 

because it may be examined visually for cleanliness, and also 

allows visual inspection of the sample for free water or solid 

impurities. The brown glass bottle affords some protection 

-23-
P.29 

from light. Cans with the seams soldered on the exterior 

surface with a flux of rosin in a suitable solvent are 

preferred because such a flux is easily removed with diesel 

fuel, whereas many others are very difficult to remove. If 

such cans are not available, other cans made with a welded 

construction that are not affected by, and 

that do not affect, the diesel fuel being sampled are 

acceptable. 

4.2 Container closure. Cork or glass stoppers, or screw 

caps of plastic or metal., may be used for glass bottles; screw 

caps only shall be us-d for cans to provide a vapor-tight 

closure seal. Corks must be of good quality, clean and free 

from holes and loose bits of cork. Never use rubber stoppers. 

Contact of the sample with the cork may be prevented by 

wrapping tin or aluminum foil around the cork before forcing it 

into the bottle. 

Glass stoppers must be a perfect fit. Screw caps must be 

protected by a cork disk faced with tin or aluminum foil, or 

other material that will not affect petroleum or petroleum 

products. In addition, a phenolic cap with a teflon coated 

liner may be used. 

4.3 Cleaning procedure. The method of cleaning all 

sample containers must be consistent with the residual 

materials in the container and must produce sample containers 

that are clean and free of water, dirt, lint, washing 

compounds, naphtha, or other solvents, soldering fluxes or 

acids, corrosion, rust, and oil. 

-24-
P.30 

New sample containers should be inspected and cleaned if 

necessary. Dry the container by either passing a current of 

clean, warm air through the container or by allowing it to air 

dry in a clean area at room temperature. When dry, stopper or 

cap the container immediately. 

5. Sampling Apparatus 

5.1 Sampling apparatus is described in detail under each 

of the specific sampling procedures. Clean, dry, and free all 

sampling apparatus from any substance that might contaminate 

the material, using the procedure described in 4.3. 

6. Time and Place of Sampling 

6.1 When loading or discharging diesel fuel, take 

samples from both shipping and receiving tanks, and from the 

pipeline if required. 

6.2 Ship or barge tanks. Sample each product after the 

vessel is loaded or just before unloading. 

6.3 Tank cars. Sample the product after the car is 

loaded or just before unloading. 

NOTE: When taking samples from tanks suspected of 

containing flammable atmospheres, precautions should be taken 

to guard against ignitions due to static electricity. Metal or 

conductive objects, such as gage tapes, sample containers, and 

thermometers;v should not be lowered into or suspended in a 

compartment or tank which is being filled or immediately after 

cessation of pumping. A waiting period of approximately one 

-25-
P.31 

minute will generally permit a substantial relaxation of the 

electrostatic charge; under certain conditions a longer period 

may be deemed advisable. 

7. Obtaining Samples 

7.1 Directions for sampling cannot be made explicit 

enough to cover all cases. Extreme care and good judgement are 

necessary to ensure samples that represent the general 

character and average condition of the material. Clean hands 

are important. Clean gloves may be worn but only when 

absolutely necessary, such as in cold wea/her, or when handling 

materials at high temperature, or for reasons of safety. 

Select wiping cloths so that lint is not introduced, 

contaminating samples. 

7.2 As many petroleum vapors are toxic and flammable, 

avoid breathing them or igniting them from an open flame or a 

spark produced by static. Follow all safety precautions 

specific to the material being sampled. 

8. Handling Samples 

8.1 Container outage. Never completely fill a sample 

container, but allow adequate room for expansion, taking into 

consideration the temperature of the liquid at the time of 

filling and the probable maximum temperature to which the 

filled container may be subjected. 

-26-
P.32 

9. Shipping Samples 

9.1 To prevent loss of liquid during shipment, and to 

protect against moisture and dust, cover with suitable vapor 

tight caps. The caps of all containers must be screwed down 

tightly and checked for leakage. Postal and express office 

regulations applying to the shipment of flammable liquids must 

be observed. 

10. Labeling Sample Containers 

10.1 Label the container immediately after a sample is 

obtained. Use waterproof and oilproof ink or a pencil hard 

enough to dent the tag, since soft pencil and ordinary ink 

markings are subject to obliteration from moisture, oil 

smearing and handling. An indelible identification symbol, 

such as a bar code, may be used in lieu of a manually addressed 

label. The label shall reference the following information: 

10.1.1 Date and time (the period elapsed during continuous 

sampling); 

10.1.2 Name of the sample; 

10.1.3 Name or number and owner of the vessel, car, or 

container; 

10.1.4 Brand and grade of material; and 

10.1.5 Reference symbol or identification number. 

-27-
P.33 

11. Sampling procedures 

11.1 The standard sampling procedures described in this 

method are summarized in Table 1. Alternative sampling 

procedures may be used if a mutually satisfactory agreement has 

been reached by the party(ies) involved and EPA and such 

agreement has been put in writing and signed by authorized 

officials. 

Table 1 

Summary of Diesel Fuel Sampling 

Procedures and Applicability 

Type of Container Procedure Paragraph 

Storage tanks, ship 

and barge tanks, 

tank cars, tank 

trucks. 

Storage tanks with 

taps 

Pipe and lines 

Retail outlet and 

whole-sale 

purchaserconsumer facility 

storage tanks. 

Bottle 

sampling 

Tap sampling 

Continuous 

line 

sampling 

Nozzle 

sampling 

11.2 

11.3 

11.4 

11.5 

-28-
11.2 Bottle or beaker sampling. The bottle or beaker 

sampling procedure is applicable for sampling liquids of 16 

2 

pounds (1.12 kgf/cm ) RVP or less in tank cars, tank trucks, 

shore tanks, ship tanks, and barge tanks. 

11.2.1 Apparatus. A suitable sampling bottle or beaker as 

shown in Figure 2 of Appendix D is required. 

11.2.2 Procedure. 

11.2.2.1 All-levels sample. Lower the weighted, stoppered 

bottle or beaker as near as possible to the draw-off level, 

pull out the stopper with a sharp jerk of the cord or chain and 

raise the bottle at a uniform rate so that it is about 3/4 full 

as it emerges from the liquid. 

11.2.2.2 Running sample. Lower the unstoppered bottles or 

beaker as near as possible to the . level of the bottom of the 

outlet connection or swing line and then raise the bottle or 

beaker to the top of the gasoline at a uniform rate of speed 

such that it is about 3/4 full when withdrawn from the diesel 

fuel. 

11.2.2.3 Upper, middle, and lower samples. Lower the 

weighted, stoppered bottle to the proper depths (Figure 1 of 

Appendix D) as follows: 

Upper sample middle of upper third of the tank 

contents 

Middle sample.... middle of the tank contents 

Lower sample level of the fixed tank outlet or the 

swing-line outlet 

At the selected level pull out the stopper with a sharp 

-29-
jerk of the cord or chain and allow the bottle or beaker to 

fill completely, as evidenced by the cessation of air bubbles. 

When full, raise the bottle or beaker, pour off a small amount, 

and stopper immediately. 

11.2.2.4 Top sample. Obtain this sample (Figure 1 of 

Appendix D) in the same manner as specified in 11.2.2.3 but at 

six inches (150 mm) below the top surface of the tank contents. 

11.2.2.5 Handling. Stopper and label bottle samples 

immediately after taking them, and deliver to the laboratory in 

the original sampling bottles. 

11.3 Tap sampling. The tap sampling procedure is 

applicable for sampling liquids of twenty-six pounds (1.83 

2 

kgf/cm ) RVP or less in tanks which are equipped with 

suitable sampling taps or lines. The assembly for tap sampling 

is shown in Figure 3 of Appendix D. 

11.3.1 Apparatus 

.11.3.1.1 Tank taps. The tank should be equipped with at 

least three sampling taps placed equidistant throughout the 

tank height and extending at least three feet (0.9 meter) 

inside the tank shell. A standard 1/4 inch pipe with suitable 

valve is satisfactory. 

11.3.1.2 Tube. A delivery tube that will not contaminate the 

product being sampled and long enough to reach to the bottom of 

the sample container is required to allow submerged filling. 

11.3.1.3 Sample containers. Use clean, dry glass bottles of 

convenient size and strength or metal containers to receive the 

samples. 

-30-
11.3.2 Procedure 

11.3.2.1 Before a sample is drawn, flush the tap (or gage 

glass drain cock) and line until they are purged completely. 

Connect the clean delivery tube to the tap. Draw upper, 

middle, or lower samples directly from the respective taps 

after the flushing operation. Stopper and label the sample 

container immediately after filling, and deliver it to the 

laboratory. 

11.4 Continuous sampling. The continuous sampling 

procedure is applicable for sampling liquids of 16 pounds (1.12 

2 

kgf/cm ) RVP or less and semiliquids in pipelines, filling 

lines, and transfer lines. The continuous sampling may be done 

manually or by using automatic devices. 

11.4.1 Apparatus 

11.4.1.1 Sampling probe. The function of the sampling probe 

is to withdraw from the flow stream a portion that will be 

representative of the entire stream. The apparatus assembly 

for continuous sampling is shown in Figure 4 of Appendix D. 

Probe designs that are commonly used are as follows: 

11.4.1.1.1 A tube extending to the center of the line and 

beveled at a 45 degree angle facing upstream (Figure 4(a) of 

Appendix D). 

11.4.1.1.2 A long-radius forged elbow or pipe bend extending to 

the center line of the pipe and facing upstream. The end of 

the probe should be reamed to give a sharp entrance edge 

(Figure 4(b) of Appendix D). 

11.4.1.1.3 A closed-end tube with a round orifice spaced near 

. i 

-31-
the closed end which should be positioned in such a way that 

the orifice is in the center of the pipeline and is facing the 

stream as shown in Figure 4(c) of Appendix D. 

11.4.1.2 Probe location. Since the fluid to be sampled may 

not in all cases be homogeneous, the location, the position and 

the size of the sampling probe should be such as to minimize 

stratification or dropping out of heavier particles within the 

tube or the displacement of the product within the tube as a 

result of variation in gravity of the flowing stream. The 

sampling probe should be located preferably in a vertical run 

of pipe and as near as practicable to the point where the 

product passes to the receiver. The probe should always be in 

a horizontal position. 

11.4.1.2.1 The sampling lines should be as short as practicable 

and should be cleared before any samples are taken. 

11.4.1.2.2 Where adequate flowing velocity is not available, a 

suitable device for mixing the fluid flow to ensure a 

homogeneous mixture at all rates of flow and to eliminate 

stratification should be installed upstream of the sampling 

tap. Some effective devices for obtaining a homogeneous 

mixture are as follows: Reduction in pipe size; a series of 

baffles; orifice or perforated plate; and a combination of any 

of these methods. 

11.4.1.2.3 The design or sizing of these devices is optional 

with the user1, as long as the flow past the sampling point is 

homogeneous and stratification is eliminated. 

-32-
11.4.1.3 To control the rate at which the sample is 

withdrawn, the probe or probes should be fitted with valves or 

plug cocks. 

11.4.1.4 Automatic sampling devices that meet the standards 

set out in 11.4.1.5 may be used in obtaining samples of diesel 

fuel. The quality of sample collected must be of sufficient 

size for analysis, and its composition should be identical with 

the composition of the batch flowing in the line while the 

sample is being taken. An automatic sampler installation 

necessarily includes not only the automatic sampling device 

that extracts thesamples from the line, but also a suitable 

probe, connecting lines, auxiliary equipment, and a container 

in which the sample is collected. Automatic samplers may be 

classified as follows: 

11.4.1.4.1 Continuous sampler, time cycle (nonproportional) 

type. A sampler designed and operated in such a manner that it 

transfers equal increments of liquid from the pipeline to the 

sample container at a uniform rate of one or more increments 

per minute is a continuous sampler. 

11.4.1.4.2 Continuous sampler, flow-responsive (proportional) 

type. A sampler that is designed and operated in such a manner 

that it will automatically adjust the quantity of sample in 

proportion to the rate of flow is a flow-responsive 

(proportional) sampler. Adjustment of the quantity of sample 

may be made either by varying the frequency of transferring 

equal increments of sample to the sample container, or by 

varying the volume of the increments while maintaining a 

-33-
constant frequency of transferring the increments to the sample 

container. The apparatus assembly for continuous sampling is 

shown in Figure 4 of Appendix D. 

11.4.1.4.3 Intermittent sampler. A sampler that is designed 

and operated in such a manner that it transfers equal 

increments of liquid from a pipeline to the sample container at 

a uniform rate of less than one increment per minute is an 

intermittent sampler. 

11.4.1.5 Standards of installation. Automatic sampler 

installations should meet all safety requirements in the plant 

or area where used, and should comply with American National 

Standard Code for Pressure Piping, and other applicable codes 

(ANSI B31.1). The sampler should be so installed as to provide 

ample access space for inspection and maintenance. 

11.4.1.5.1 Small lines connecting various elements of the 

installation should be so arranged that complete purging of the 

automatic sampler and of all lines can be accomplished 

effectively. All fluid remaining in the sampler and the lines 

from the preceding sampling cycle should be purged immediately 

before the start of any given sampling operation. 

11.4.1.5.2 In those cases where the sampler design is such that 

complete purging of the sampling lines and the sampler is not 

possible, a small pump should be installed in order to 

circulate a continuous stream from the sampling tube past or 

through the sampler and back into the line. The automatic 

sampler should then withdraw the sample from the sidestream 

through the shortest possible connection. 

-34-
11.4.1.5.3 Under certain conditions, there may be a tendency 

for water and heavy particles to drop out in the discharge line 

from the sampling device and appear in the sample container 

during some subsequent sampling period. To circumvent this 

possibility, the discharge pipe from the sampling device should 

be free of pockets or enlarged pipe areas, and preferably 

should be pitched downward to the sample container. 

11.4.1.5.4 To ensure clean, free-flowing lines, piping should 

be designed for periodic cleaning. 

11.4.1.6 Field calibration. Composite samples obtained from 

the automatic sampler installation should be verified for 

quantity performance in a manner that meets with the approval 

of all parties concerned (including EPA), at least once a month 

and more often if conditions warrant. In the case of 

time-cycle samplers, deviations in quantity of the sample taken 

should not exceed ± five percent for any given setting. In the 

case of flow-responsive samplers, the deviation in quantity of 

sample taken per 1,000 barrels of flowing stream should not 

exceed ± 5 percent. For the purpose of field-calibrating an 

installation, the composite sample obtained from the automatic 

sampler under test should be verified for quality be comparing 

on the basis of physical and chemical properties, with either a 

properly secured continuous nonautomatic sample or tank 

sample. The tank sample should be taken under the following 

conditions: 

11.4.1.6.1 The batch pumped during the test interval should be 

diverted into a clean tank and a sample taken within one hour 

-35-
P.41 

after cessation of pumping. 

11.4.1.6.2 If the sampling of the delivery tank is to be 

delayed beyond one hour, then the tank selected must be 

equipped with an adequate mixing means. For valid comparison, 

the sampling of the delivery tank must be completed within 

eight hours after cessation of pumping, even though the tank is 

equipped with a motor-driven mixer. 

11.4.1.6.3 When making a normal full-tank delivery from a tank, 

a properly secured sample may be used to check the results of 

the sampler if the paries (including EPA) mutually agree to 

this procedure. 

11.4.1.7 Receiver. The receiver must bu a clean, dry 

container of convenient size to receive the sample. All 

connections from the sample probe to the sample container must 

be tree of lsaks. Two types of container may be used, 

depending upon service requirements. 

11.4.1.7.1 Atmospheric container. The atmospheric container 

shall be constructed in such a way that it retards evaporation 

loss and protects the sample from extraneous material such as 

rain, snow, dust, and trash. The construction should allow 

cleaning, interior inspection, and complete mixing of the 

sample prior to removal. The container should be provided with 

a suitable vent. 

11.4.1.7.2 Closed container. The closed container shall be 

constructed in such a manner that it prevents evaporation 

loss. The construction must allow cleaning, interior 

-36-
inspection and complete mixing of the sample prior to removal. 

The container should be equipped with a pressure-relief valve. 

11.4.2 Procedure. 

11.4.2.1 Nonautomatic sample. Adjust the valve or plug cock 

from the sampling probe so that a steady stream is drawn from 

the probe. Whenever possible, the rate of sample withdrawal 

should be such that the velocity of liquid flowing through the 

probe is approximately equal to the average linear velocity of 

the stream flowing through the pipeline. Measure and record 

the rate of sample withdrawal as gallons per hour. Zivert the 

sample stream to the sampling container continuously or 

intermittently to provide a quantity of sample that will be of 

sufficient size for analysis. 

11.4.2.2 Automatic sampling. Purge the sampler and the 

sampling lines immediately before the start of a sampling 

operation. If the sample design is such that complete purging 

is not possible, circulate a continuous stream from the probe 

past or through the sampler and back into the line. Withdraw 

the sample from the side stream through the automatic sampler 

using the shortest possible connections. Adjust the sampler to 

deliver not less than one and not more than 40 gallons (151 

liters) of sample during the desired sampling period. For 

time-cycle samplers, record the rate at which sample increments 

were taken per minute. For flow-responsive samplers, record 

the proportion of sample to total stream. Label the samples 

and deliver them to the laboratory in the containers in which 

they were collected. 

-37-
P.43 

11.5 Nozzle sampling. The nozzle sampling procedure is 

applicable for sampling diesel fuel from a retail outlet or 

wholesale purchaser-consumer facility storage tank. 

11.5.1 Apparatus. Sample containers conforming with 4.1 

should be used! A spacer, if appropriate (Figure 6 of Appendix 

D ), and a nozzle extension device similar to that shown in 

Figures 7 or 7a of Appendix D shall be used when nozzle 

sampling. The nozzle extension device does not need to be 

identical to that shown in Figure 7 or 7a of Appendix D but it 

should be a device that will bottom fill ;he container. 

11.5.2 Procedure. Immediately after diesel fuel has been 

delivered from the pump and the pump has been reset, deliver a 

small amount of product into the sample container. Rinse 

sample container and dump product into waste container. Insert 

nozzle extension (Figure 7 or 7a of Appendix D) into sample 

container and insert pump nozzle into extension with slot over 

air bleed hole. Fill slowly through nozzle extension to 70-80 

percent full (Figure 8 of Appendix D). Remove nozzle 

extension. Cap sample container at once. Check for leaks. 

12. Special Precautions and Instructions. 

12.1 Precautions. Official samples should be taken by, 

or under the immediate supervision of, a person of judgement, 

skill, and sampling experience. Never prepare composite 

samples for this test. Make certain that containers which are 

to be shipped by common carrier conform to applicable 

Interstate Commerce Commission, state, and local regulations. 

-38-
P.44 

When flushing or purging lines or containers, observe the 

pertinent regulations and precautions against fire, explosion, 

and other hazards. 

12.2 Sample containers. Use containers of not less than 

one quart (0.9 liter) nor more than two gallons (7.6 liters) 

capacity, of sufficient strength to withstand the pressure to 

which they may be subjected. Open-type containers have a 

single opening which permits sampling by immersion. 

Closed-type containers have two openings, one in each end (or 

the equivalent thereof), fitted with valves suitable for 

sampling by water displacement or by purging. 

12.3 Transfer connections. The transfer connection for 

the open-type container consists of an air tube and a liquid 

delivery tube assembled in a cap or stopper. The air tube 

extends to the bottom of the container. One end of the liquid 

delivery tube is long enough to reach the bottom of the diesel 

fuel chamber while the sample is being transferred to the 

chamber. The transfer connection for the closed-type container 

consists of a single tube with a connection suitable for 

attaching it to one of the openings of the sample container. 

The tube is long enough to reach the bottom of the diesel 

chamber while the sample is being transferred. 

12.4 Sampling open tanks. Use clean containers of the 

open type when sampling open tanks and tank cars. An all-level 

sample obtained by the bottle procedure described in 11.2 is 

recommended. Before taking the sample, flush the container by 

immersing it in the product to be sampled. Then obtain the 

-39-
P.45 

sample immediately. Pour off enough so that the container will 

be 70-80 percent full and close it promptly. Label the 

container and deliver it to the laboratory. 

12.5 Sampling closed tanks. Containers of either the 

open or closed type may be used to obtain samples from closed 

or pressure tanks. If the closed type is used, obtain the 

sample using the water displacement procedure described in 12.8 

or the purging procedure described in 12.9. The water 

displacement procedure is preferable because the flow of 

product involved in the purging procedure may be hazardous. 

12.6 Water displacement procedure. Completely fill the 

closed-type container with water and close the valves. While 

permitting a small amount of product to flow through the 

fittings, connect the top or inlet valve of the container to 

the tank sampling tap or valve. Then open all valves on the 

inlet side of the container. Open the bottom or outlet valve 

slightly to allow the water to be displaced slowly by the 

sample entering the container. Regulate the flow so that there 

is no appreciable change in pressure within the container. 

Close the outlet valve as soon as diesel fuel discharges from 

the outlet; then in succession close the inlet valve and the 

sampling valve on the tank. Disconnect the container and 

withdraw enough of the contents so that it will be 70-80 

percent full. If the vapor pressure of the product is not high 

enough to force liquid from the container, open both the upper 

and lower valves slightly to remove the excess. Promptly seal 

and label the container, and deliver it to the laboratory. 

-40-
P.46 

12.7 Purging procedure. Connect the inlet valve of the 

closed-type container to the tank sampling tap or valve. 

Throttle the outlet valve of the container so that the pressure 

in it will be approximately equal to that in the container 

being sampled. Allow a volume of product equal to at least 

twice that of the container to flow through the sampling 

system. Then close all valves, the outlet valve first, the 

inlet valve of the container second, and the tank sampling 

valve last, and disconnect the container immediately. Withdraw 

enough of the contents so that the sample container will be 

70-80 percent full. If the vapor pressure of the product is 

not high enough to force liquid from the container, open both 

the upper and lower valves slightly to remove the excess. 

Promptly seal and label the container, and deliver it to the 

laboratory. 

-41-
P.47 

(Ni t_ soft) twi *t l 

wtttVit 

rafts it Ua 

All Dimensions in inches (fun scale except as noted) 

AU decimal dimensions represent minimum and maximum 

Tolerance for all other dimensions is±»/*_* 

Made of non-ferrous material, uneffected by gasoline 

Rgure 7a. Nozzle Extension for Nozzle Sampling 

(Compatible with narrow neck sample containers) 
P.48 

For the reasons set forth in the Preamble, Part 86 of Title 40 

of the Code of Federal Regulations is revised to, as set forth 

below: 

6. The authority citation for Part 86 continues to read 

as follows: 

Authority: Sees.202, 203, 206, 207, 208, 215, 301(a), of the 

Clean Air Act as Amended; 42 U.S.C. 7521, 7522, 7524, 7525, 

7541, 7542, 7549, 7550 and 7601(a). 

7. A new Section 86.113-91 is proposed to be added to 

Subpart B, to read as follows: 

§86.113-91 Fuel specifications. 

(a) Otto-cycle test fuel. (1) Gasoline having the 

following specifications will be used by the Administrator in 

exhaust and evaporative emission testing of petroleum-fueled 

Otto-cycle vehicles. Gasoline having the following 

specification or substantially equivalent specifications 

approved by the Administrator, shall be used by the 

manufacturer in exhaust and evaporative testing except that 

octane specifications do not apply. 

-42-
P.49 

Item 

Octane, research, 

Sensitivity, 

Lead (organic), 

Distillation Range: 

IBP[2], 

10 pet. point, 

50 pet. point, 

90 pet. point, 

EP, (max.) 

Sulfur, weight pet., 

.. lio-spiorus, max. 

..VP[3,4], 

Hydrocarbon composit 

Olefins, 

Aromatics, 

Saturates 

min. 

min. 

g/U.S. gal 

(g/litter) 

°F 

<°C) 

op 

CC) 

op 

C C) 

op 

CC) 

. °F 

(°C) 

max. 

g/U.S. gal 

• (g/liter) 

psi 

(kPa) 

ion: 

max. pet., 

max. pet., 

ASTM Test 

Method No. 

D2699 

• • • • 

. D3237 

D86 

D86 

D86 

D86 

D86 

D1266 

. D3231 

D323 

D1319 

D1319 

D1319 

Value 

93 

7.5 

0.050[1] 

<0.013)[1] 

75-95 

(23.9-35) 

120-135 

(48.9-57.2) 

200-230 

(93.3-110) 

300-325 

(148.9-162.8) 

415 

(212.8) 

0.10 

0.005 

(0.0013) 

8.7-9,2 

(60.0-63.4) 

10 

35 

[5] 

[1] Maximum. 

[2] For testing at altitudes above 1,219 m (4,000 ft) the 

specified range is 75°-105°F (23.9°-40.6°C). 

[3] For testing which is unrelated to evaporative emission 

control, the specified range is 8.0-9.2 psi (55.2-63.4 

kPa). 

[4] For testing at altitudes above 1,219 m (4,000 ft) the 

specified range is 7.9-9.2 psi (54.5-63.4 kPa). 

[5] Remainder. 

-43-
P.50 

(2) Unleaded gasoline representative of commercial 

gasoline which will be generally available through retail 

outlets shall be used in service accumulation for 

petroleum-fueled Otto-cycle vehicles. Leaded gasoline will not 

be used in service accumulation. 

(i) The octane rating of the gasoline used shall be no 

higher than 1.0 Research octane number above the minimum 

recommended by the manufacturer and have a minimum sensitivity 

of 7 5 octane numbers, where sensitivity is defined as the 

Research icrane number minus the Motor octane number. 

(ii) The Reid Vapor Pressure of the gasoline used shall 

be characteristic of the motor fuel used during the season in 

which the service accumulation takes place. 

(3) Methanol fuel used for exhaust and evaporative 

emission testing and in service accumulation of methanol-fueled 

Otto-cycle vehicles shall be representative of commercially 

available methanol fuel and shall consist of at least 50 

percent methanol by volume. 

(i) Manufacturers shall recommend the methanol fuel to 

be used for testing and service accumulation in accordance with 

paragraph (3).. 

-44-
P.51 

(ii) The Administrator shall determine the methanol fuel 

to be used for testing and service accumulation. 

(4) Other methanol fuels may be used for testing and 

service accumulation provided: 

(i) They are commercially available, and 

(ii) Information, acceptable to the Administrator, is 

provided to show chat only the designated fuel would be used in 

customer service, *°.nd 

(iii) Use of a fuel listed under paragraph (a)(3) of this 

section would have a detrimental effect on emissions or 

durability, and 

(iv) Written approval from the Administrator of the fuel 

specifications must be provided prior to the start of testing. 

(5) The specification range of the fuels to be used 

under paragraphs (a)(2), (a)(3), and (a)(4) of this section 

shall be reported in accordance with §86.090-21(b)(3). 

(b) Diesel test fuel. (1) The petroleum fuels employed 

for testing diesel vehicles shall be clean and bright, with 

pour and cloud points adequate for operability. The petroleum 

fuel may contain nonmetallic additives as follows: cetane 

-45-
P.52 

improver, metal deactivator, antioxidant, dehazer, antirust, 

pour depressant, dye, dispersant and biocide. Except for the 

sulfur content of "Type 2-D" fuel, fuels specified for 

emissions testing are intended to be representative of 

commercially available in-use fuels. 

(2) Petroleum fuel for diesel vehicles meeting the 

following specifications, or substantially equivalent 

specifications approved by the Administrator, shall be used in 

exhaust emission testing. The grade of petroleum fuel 

recommended by the engine manufacturer, commercially designated 

as "Type 2-D" grade diesel, shall be used. 

Icem 

Cetane Number 

Distillation range: 

IBP, 

10 pet. point, 

50 pet. point, 

90 pet. point, 

EP, 

Gravity, 

Total sulfur, 

op 

CC) 

op 

(°c) 

op 

<°c) 

op 

CC) 

op 

CC) 

°API 

pet. 

Hydrocarbon composition 

Aromatics, min. pet. 

Paraffins, naphthenes, 

olefins 

Flashpoint, min. 

Viscosity, centistokes 

op 

CC) 

ASTM Test 

Method No. 

D613 

D86 

D86 

D86 

D86 

D86 

D287 

D2622 

D1319 

D93 

D445 

Type 2-D 

42-50 

340-400 

(171.1-204 

400-460 

(204.4-237 

470-540 

(243.3-282 

560-630 

(293.3-332 

610-690 

(321.1-365 

32-37 

0.08-0.12 

27 

[1] 

130 

(54.4) 

2.2-3.4 

.4) 

•8) 

• 2 ) 

.2) 

.6) 

[1] Remainder. 

-46-
P.53 

(3) Petroleum fuel for diesel vehicles meeting the 

following specifications, or substantially equivalent 

specifications approved by the Administrator, shall be used in 

service accumulation. The grade of petroleum diesel fuel 

recommended by the engine manufacturer, commercially designated 

as "Type 2-D" grade diesel fuel, shall be used. 

Item 

Cetane Number 

Distillation range: 

90 pet. point 

Gravity, 

Total sulfur, 

Flashpoint, min. 

Viscosity, 

op 

(°C) 

°A?I 

pet. 

op 

CC) 

centistokes 

ASTM Test 

Method 

D613 

u86 

-;'287 

D2622 

D93 

D455 

No. TvDe 2-D 

38-58 

540-650 

(282.2-343.3) 

30-39 

0.08-0.12 

130 

(54.4) 

1.5-4.5 

(4) Methanol fuel used for exhaust and evaporative 

emission testing and in service accumulation of 

methanol-fueled diesel vehicles shall be representative of 

commercially available methanol fuel and shall consist of 

at least 50 percent methanol by volume. 

(i) Manufacturers shall recommend the methanol fuel 

to be used for testing and service accumulation in 

accordance with paragraph (4). 

(ii) The> Administrator shall determine the methanol 

fuel to be used for testing and service accumulation. 

-47-
P.54 

(5) Other fuels may be used for testing and service 

accumulation provided: 

(i) They are commercially available, and 

(ii) Information, acceptable to the Administrator, is 

provided to show that only the designated fuel would be used in 

customer service, and 

(iii) Use of a fuel listed under paragraphs (b)(2) and 

(b)(3) or (b)(4) 61 this section would have a detrimental 

effect on emissions or durability, and 

(iv) Written approval from the Administrator of the fuel 

specifications must be provided prior to the start of testing. 

(6) The specification range of the fuels to be used 

under paragraphs (b)(2), (b)(3), (b)(4), and (b)(5) of this 

section shall be reported in accordance with §86.090-21(b)(3). 

(c) Fuels not meeting the specifications set forth in 

this section may be used only with the advance approval of the 

Administrator. 

(d) Mixtures af petroleum and methanol fuels £&£ 

flexible fuel vehicles. (1) Mixtures of petroleum and 

methanol fuels used for exhaust and evaporative emission 

-48-
testing and service accumulation for flexible fuel vehicles 

shall be within the range of fuel mixtures for which the 

vehicle was designed. 

(2) Manufacturer testing and service accumulation may be 

performed using only those mixtures (mixtures may be different 

for exhaust testing, evaporative testing, and service 

accumulation) expected to result in the highest emissions, 

provided: 

(i) The fuels which constitute the mixture will be used 

in customer service, and 

(ii) Information, acceptable to the Administrator, is 

provided by the manufacturer to show that the designated fuel 

mixtures would result in the highest emissions, and 

(iii) Written approval from the Administrator of the fuel 

specifications must be provided prior to the start of testing. 

(3) The specification range of the fuels to be used 

under paragraph (d)(1) of this section shall be reported in 

accordance with §86.090-21(b)(3). 

-49-
P.56 

8. A new Section 86.113-94 is proposed to be added to 

Subpart B, to read as follows: 

§86.113-94 Fuel specifications. 

(a) Otto-cvcle test fuel. (1) Gasoline having the 

following specifications will be used by the Administrator in 

exhaust and evaporative emission testing of petroleum-fueled 

Otto-cycle vehicles. Gasoline having the following 

specification or substantially equivalent specifications 

approved by the Administrator, shall be used by t "<e 

manufacturer in exhaust and evaporative testing except that 

octane specifications do not apply. 

-50-
P.57 

Item 

Octane, research, 

Sensitivity, 

Lead (organic), 

Distillation Range: 

IBP[2], 

10 pet. point, 

50 pet. point, 

90 pet. point, 

EP, (max.) 

Sulfur, weight pet., 

Phosphorus, max. 

RVP[3,4J, 

Hydrocarbon composit 

Olefins, 

Aromatics, 

Saturates 

ASTM Test 

^ 

min. 

min. 

g/U.S. gal. 

(g/litter) 

op 

CC) 

op 

CC) 

op 

CC) 

op 

CC) 

op 

CC) 

max. 

g/U.S. gal. 

(g/liter) 

psi 

(kPa) 

ion: 

max. pet., 

max. pet., 

iPthod No. 

D2699 

• • • • 

D3237 

D86 

D86 

D86 

D86 

D86 

D1266 

D3231 

D323 

D1319 

D1319 

D1319 

Value 

93 

7.5 

0.050[1] 

(0.013)[1] 

75-95 

(23.9-35) 

120-135 

(48.9-57.2) 

200-230 

(93.3-110) 

300-325 

(148.9-162.8) 

415 

(212.8) 

0 10 

0.005 

(0.0013) 

8.7-9 . 2 

(60.0-63.4) 

10 

35 

[5] 

[1] Maximum. 

[2] For testing at altitudes above 1,219 m (4,000 ft) the 

specified range is 75°-105°F (23.9°-40.6°C). 

[3] For testing which is unrelated to evaporative emission 

control, the specified range is 8.0-9.2 psi (55.2-63.4 

kPa). 

[4] For testing at altitudes above 1,219 m (4,000 ft) the 

specified range is 7.9-9.2 psi (54.5-63.4 kPa). 

[5] Remainder. 

-51-
P.58 

(2) Unleaded gasoline representative of commercial 

gasoline which will be generally available through retail 

outlets shall be used in service accumulation for petroleumfueled Otto-cycle vehicles. Leaded gasoline will not be used 

in service accumulation. 

(i) The octane rating of the gasoline used shall be no 

higher than 1.0 Research octane number above the minimum 

recommended by the manufacturer and have a minimum sensitivity 

of 7.5 octane numbers, where sensitivity is defined as the 

Research octane number minus the Motor octane number. 

(ii) The Reid Vapor Pressure of the gasoline used shall 

be characteristic of the motor fuel used during the season in 

which the service accumulation takes place. 

(3) Methanol fuel used for exhaust and evaporative 

emission testing and in service accumulation of methanol-fueled 

Otto-cycle vehicles shall be representative of commercially 

available methanol fuel and shall consist of at least 50 

percent methanol by volume. 

(i) Manufacturers shall recommend the methanol fuel to 

be used for testing and service accumulation in accordance with 

paragraph (3). 

-52-
P.59 

(ii) The Administrator shall determine the methanol fuel 

to be used for testing and service accumulation. 

(4) Other methanol fuels may be used for testing and 

service accumulation provided: 

(i) They are commercially available, and 

(ii) Information, acceptable to the Administrator, is 

provided to show that only the designated fuel would be used in 

customer service, arid 

(iii) Use of a fuel listed under paragraph (a)(3) of this 

section would have a detrimental effect on emissions or 

durability, and 

(iv) Written approval from the Administrator of the fuel 

specifications must be provided prior to the start of testing. 

(5) The specification range of the fuels to be used 

under paragraphs (a)(2), (a)(3), and (a)(4) of this section 

shall be reported in accordance with §86.090-21(b)(3). 

(b) Diesel test fuel. (1) The petroleum fuels employed 

for testing -diesel vehicles shall be clean and bright, with 

pour and cloud points adequate for operability. The petroleum 

fuel may contain nonmetallic additives as follows: cetane 

-53-
P.60 

improver, metal deactivator, antioxidant, dehazer, antirust, 

pour depressant, dye, dispe 

for emissions testing are 

rsant and biocide. 

intended to be 

commercially available in-use fue 

(2) Petroleum fuel 

following specifications, 

specifications approved by 

exhaust emission testing. 

for 

or 

Is. 

diesel vehic 

Fuels specified 

representative of 

les meeting the 

substantially equivalent 

the Administrator, 

The grade of 

recommended by the engine manufac 

as "Type 2-D" grade diesel, 

Item 

Cetane Number 

Cetane Index 

Distillation range: 

IBP, °F 

CC) 

10 pet. point, °F 

CC) 

50 pet. point, °F 

(°C) 

90 pet. point, °F 

CC) 

EP, °F 

CC) 

Gravity, °API 

Total sulfur, pet. 

Hydrocarbon composition 

Aromatics, min. pet. 

Paraffins, naphthenes, 

olefins 

Flashpoint, min. °F 

(°C) 

Viscosity, centistokes 

[1] Remainder. 

shall 

-54-

shall be used in 

petroleum fuel 

turer, commercially designated 

be used. 

ASTM Test 

Method No. 

D613 

D976 

D86 

D86 

D86 

D86 

D86 

D287 

D2622 

D1319 

D93 

D445 

Type 2-D 

40-48 

40-48 

340-400 

(171.1-204.4) 

400-460 

(204.4-237.8) 

470-540 

(243.3-282.2) 

560-630 

(293.3-332.2) 

610-690 

(321.1-365.6) 

32-37 

0.03-0.05 

27 

[1] 

130 

(54.4) 

2.2-3.4 
P.61 

(3) Petroleum fuel for diesel vehicles meeting the 

following specifications, or substantially equivalent 

specifications approved by the Administrator, shall be used in 

service accumulation. The grade of petroleum diesel fuel 

recommended by the engine manufacturer, commercially designated 

as "Type 2-D" grade diesel fuel, shall be used. 

Item 

C^fcane _lunuer 

Caiane Index 

Distil .ation range: 

90 pet. point 

Gravity, 

Total sulfur, 

Flashpoint, min. 

ViwCOoity, 

op 

CC) 

°API 

pet. 

op 

CC) centistokes 

ASTM Test 

Method 

D613 

D976 

D86 

D287 

D2622 

D93 

D455 

No. Type 2-D 

38-58 

min. 40 

540-630 

(282.2-343.3) 

30-39 

0.03-0.05 

130 

(54.4) 

1.5-4.5 

(1) Methanol fuel used for exhaust and evaporative 

emission testing and in service accumulation of 

methanol-fueled diesel vehicles shall be representative of 

commercially available methanol fuel and shall consist of 

at least 50 percent methanol by volume. 

(i) Manufacturers shall recommend the methanol fuel 

to be used for testing and service accumulation in 

accordance with paragraph (4). 

(ii) The Administrator shall determine the methanol 

fuel to be used for testing and service accumulation. 

-55-
P.62 

(5) Other fuels may be used for testing and service 

accumulation provided: 

(i) They are commercially available, and 

(ii) Information, acceptable to the Administrator, is 

provided to show that only the designated fuel would be used in 

customer service, and 

(iii) Use of a fuel listed under paragraphs (b)(2) and 

(b)(3) or (b)(4) of this section would have a detrimental 

effect on emissions or durability, and 

(iv) Written approval from the Administrator of the fuel 

specifications must be provided prior to the start of testing. 

(6) The specification range of the fuels to be used 

under paragraphs (b)(2), (b)(3), (b)(4), and (b)(5) of this 

section shall be reported in accordance with §86.090-21(b)(3). 

(c) Fuels not meeting the specifications set forth in 

this section may be used only with the advance approval of the 

Administrator. 

(d) Mixtures of petroleum and methanol fuels for 

flexible fuel vehicles. (1) Mixtures of petroleum and 

methanol fuels used for exhaust and evaporative emission 

-56-
P.63 

testing and service accumulation for flexible fuel vehicles 

shall be within the range of fuel mixtures for which the 

vehicle was designed. 

(2) Manufacturer testing and service accumulation may be 

performed using only those mixtures (mixtures may be different 

for exhaust testing, evaporative testing, and service 

accumulation) expected to result in the highest emissions, 

provided: 

(i) The fuels which constitute the mixture will be used 

in customer service, and 

(ii) Information, acceptable to the Administrator, is 

provided by the manv.fp-;turer to show that the designated fuel 

mixtures would result in the highest emissions, and 

(iii) Written approval from the Administrator of the fuel 

specifications must be provided prior to the start of testing. 

(3) The specification range of the fuels to be used 

under paragraph (d)(1) of this section shall be reported in 

accordance with §86.090-21(b)(3). 

-57-
P.64 

9. A new Section 86.1313-91 is proposed to be added to 

Subpart N, to read as follows: 

§86.1313-91 Fuel specifications. 

(a) Otto-cycle test fuel. (1) Gasoline having the 

specifications listed in Table N91-1 will be used by the 

Administrator in exhaust emission testing petroleum-fueled 

Otto-cycle engines. Gasoline having these specifications or 

substantially equivalent specifications approved by the 

Administrator, shall be. used b- the manufacturer in exhaust 

emission testing, except that the octane specification does not 

apply. 

-58-
P.65 

Table N91-1 

Item 

Octane, research, min. 

Sensitivity r min. 

Lead (organic), g/U.S. 

(g/i 

Distillation range: 

IBP, 

10 pet. 

50 pet. 

90 pet. 

EP, 

Sulphur, 

Phosphorus, 

RVP, 

Hydrocarbon 

Olefins 

point, 

point, 

point, 

max 

max. wt. 

max., g/U.S. 

(g/i. 

composition: 

, max 

Aromatics, max. 

Saturates 

gal. 

Iter) 

op 

CC) 

op 

CC) 

op 

CC) 

op 

CC) 

. °F, 

(°C) 

pet. 

gal. 

Iter) 

psi 

(kPa) 

. pet. 

pet. 

ASTM 

D2699 

D3237 

D86 

D86 

D86 

D86 

D86 

D126S 

D3231 

D323 

D1319 

D1319 

D1319 

Value 

93 

7.5 

(0.050)[1] 

<0.013)[1] 

75-95 

(23.9-35) 

120-135 

(48.9-57.2) 

200-230 

(93.3-110) 

300-325 

U48.9-162.8) 

415 

(212.8) 

0.10 

0.005 

,0.0013) 

8.0-9.2 

(60.0-63.4) 

10 

35 

[2] 

[1] Maximum. 

[2] Remainder. 

(2) Unleaded gasoline representative of commercial 

gasoline which will be generally available through retail 

outlets shall be used in service accumulation. 

(i) The octane rating of the gasoline used shall be not 

higher than one Research octane number above the minimum 

recommended by the manufacturer and have a minimum sensitivity 

of 7.5 octane numbers, where sensitivity is defined as the 

Research octane number minus the Motor octane number. 

-59-
(ii) The Reid Vapor Pressure of the gasoline used shall 

be characteristic of the motor fuel used during the season in 

which the service accumulation takes place. 

(3) Methanol fuel used for exhaust and evaporative 

emission testing and in service accumulation of methanol-fueled 

Otto-cycle engines shall be representative of commercially 

available methanol fuel and shall consist of at least 50 

percent methanol by volume. 

(i) Manufacturers shall recommend the methanol fuel to 

be used for testing and service accumulation in accordance with 

paragraph (3). 

(ii) The Administrator shall determine i-hs methanol fuel 

to be used for testing and service accumulation. 

(4) Other methanol fuels may be used for testing and 

service accumulation provided: 

(i) They are commercially available, and 

(ii) Information, acceptable to the Administrator, is 

provided to show that only the designated fuel would be used in 

customer service, and 

-60-
P.67 

(iii) Use of a fuel listed under paragraph (a)(3) of this 

section would have a detrimental effect on emissions or 

durability, and 

(iv) Written approval from the Administrator of the fuel 

specifications must be provided prior to the start of testing. 

(5) The specification range of the fuels to be used 

under paragraphs (a)(2), (a)(3), and (a)(4) of this section 

shall be reported in accordance with §86.090-21(b)(3). 

(b) Diesel test fuel. 

(1) The petroleum fuels for testing diesel engines 

employed for testing shall be clean and bright, with pour and 

cloud points adequate for operability. The petroleum fuel may 

contain nonmetallic additives as follows: Cetane improver, 

metal deactivator, antioxidant, dehazer, antirust, pour 

depressant, dye, dispersant, and biocide. Except for the 

sulfur content of "Type 2-D" fuel, fuels specified for 

emissions testing are intended to be representative of 

commercially available in-use fuels. 

(2) Petroleum fuel for diesel engines meeting the 

specifications in Table N91-2, or substantially equivalent 

specifications approved by the Administrator, shall be used in 

exhaust emissions testing. The grade of petroleum fuel used 

-61-
P.68 

shall be commercially designated as "Type 2-D" grade diesel 

fuel except that fuel commercially designated as "Type 1-D" 

grade diesel fuel may be substituted provided that the 

manufacturer has submitted evidence to the Administrator 

demonstrating to the Administrator's satisfaction that this 

fuel will be the predominant in-use fuel. Such evidence could 

include such things as copies of signed contracts from 

customers indicating the intent to purchase and use "Type 1-D" 

grade diesel fuel as the primary fuel for use in the engines or 

other evidence acceptable to the Administrator, which the 

Administrator finds provides equivalent assurance. 

Table N91-2 

Item ASTM Type 1-D Type 2-D 

Cetane D613 48-54 42-50 

Distillation range: 

IBP, °F D86 330-390 340-400 

(°C) (165.6-198.9) (171.1-204.4) 

10 pet. point, °F D86 370-430 400-460 

(°C) (187.8-221.1) (204.4-237.8) 

50 pet. point, °F D86 410-480 470-540 

(°C) (210-248.9) (243.3-282.2) 

90 pet. point, °F D86 460-520 560-630 

(°C) (237.8-271.1) (293.3-332.2) 

EP, °F D86 500-560 610-690 

(°C) (260.0-293.3) (321.1-365.6) 

Gravity, °API D287 40-44 32-37 

Total sulfur, pet. D2622 0.08-0.12 0.08-0.12 

Hydrocarbon composition: 

Aromatics, pet. D1319 8[1] 27[1] 

Paraffins, Naphthenes, 

Olefins D1319 [2] [2] 

Flashpoint, min., °F, D93 120 130 

(°C) (48.9) (54.4) 

Viscosity, centistokes D445 1.6-2.0 2.2-3.4 

[1] Minimum. 

[2] Remainder. 

-62-
P.69 

(3) Petroleum fuel for diesel engines meeting the 

specifications in Table N91-3, or substantially equivalent 

specifications approved by the Administrator, shall be used in 

service accumulation. The grade of petroleum fuel used shall 

be commercially designated as "Type 2-D" grade diesel fuel 

except that fuel commercially designated as "Type 1-D" grade 

diesel fuel may be substituted provided that the manufacturer 

has submitted evidence to the Administrator demonstrating to 

the Administrator's satisfaction that this fuel will be the 

predominant in-use fuel. Such evidence could include such 

things as copies of.signed contracts from customers indicating 

the intent to purchase and use "Type 1-D" grade diesel fuel as 

the primary fuel for use in the engines or other evidence 

acceptable to the Administrator. 

Table N91-3 

ItfilD ASTM Type 1-D Type 2-D 

Cetane Number D613 42-56 30-58 

Distillation range: 

90 pet. point, °F D86 440-530 540-630 

(°C) (226.7-276.7)(282.2-332.2) 

Gravity, °API 

Total sulfur, pet. 

Flashpoint, min., °F, 

CC) 

Viscosity, centistokes 

(4) Methanol fuel used for exhaust and evaporative 

emission testing and in service accumulation of methanol-fueled 

diesel engines shall be representative of commercially 

available methanol fuel and shall consist of at least 50 

percent methanol by volume. 

-63-

D287 

D2622 

D93 

D455 

39-45 

0.08-0.12 

120 

(48.9) 

1.2-2.2 

30-42 

0.08-0.12 

130 

(54.4) 

1.5-4.5 
(i) Manufacturers shall recommend the methanol fuel to 

be used for testing and service accumulation in accordance with 

paragraph (4). 

(ii) The Administrator shall determine the methanol fuel 

to be used for testing and service accumulation. 

(5) Other fuels may be used for testing and service 

accumulation provided: 

P.70 

(i) They are commercially available, and 

(ii) Information, acceptable to the Administrator, is 

provided to show that only the designated fuel would be used in 

customer service, and 

(iii) Use of a fuel listed under paragraphs (b)(2) and 

(b)(3) or (b)(4) of this section would have a detrimental 

effect on emissions or durability, and 

(iv) Written approval from the Administrator of the fuel 

specifications must be provided prior to the start of testing. 

(6) The, specification range, of the fuels to be used 

under paragraphs (b)(2), (b)(3), (b)(4), and (b)(5) of this 

section shall be reported in accordance with §86.090-21(b)(3). 

-64-
(c) Fuels not meeting the specifications set forth in 

this section may be used only with the advance approval of the 

Administrator. 

(d) Mixtures of petroleum and methanol fuels fJ_X 

flexible fuel vehicles. (1) Mixtures of petroleum and 

methanol fuels used for exhaust and evaporative emission 

testing and service accumulation for flexible fuel vehicles 

shall be within the range of fuel mixtures for which the 

vehicle was designed. 

(2) Manufacturer testing and service accumulation may be 

performed using only those mixtures (mixtures may be different 

for exhaust testing, evaporative testing, and service 

accumulation) expected to result in the highest emissions, 

provided: 

(i) The fuels which constitute the mixture will be used 

in customer service, and 

(ii) Information, acceptable to the Administrator, is 

provided by the manufacturer to show that the designated fuel 

mixtures would result in the highest emissions, and 

(iii) Written approval from the Administrator of the fuel 

specifications must be provided prior to the start of testing. 

-65-
P.72 

(3) The specification range of the fuels to be used 

under paragraph (d)(2) of this section shall be reported in 

accordance with §86.090-21(b)(3). 

-66-
P.73 

10. A new Section 86.1313-94 is proposed to be added to 

Subpart N, to read as follows: 

§86.1313-94 Fuel specifications. 

(a) Otto-cvcle test fuel. (1) Gasoline having the 

specifications listed in Table N94-1 will be used by the 

Administrator in exhaust emission testing petroleum-fueled 

Otto-cycle engines. Gasoline having these specifications or 

substantially equivalent specifications approved by the 

Administrator, shall- be used by the manufacturer in exhaust 

emission testing, except that the octane specification does not 

apply. 

-67-
P.74 

Item 

Octane, research, 

Sensitivity, min. 

Lead (organic), 

min. 

g/U.S. 

(g/1 

Distillation range: 

IBP, 

10 pet. point, 

50 pet. point, 

90' pctv. point, 

EP, max 

Sulphur, max. wt. 

Phosphorus, ._ x., 

RVP, 

g/U.S. 

(g/i 

Hydrocarbon composition: 

Olefins, 

Aror. e ...^s, 

Saturates 

max 

max. 

Iaj2l£_ 

gal. 

iter) 

op 

C C) 

op 

C C) 

op 

C C) 

op 

(°C) 

. °F, 

C C) 

pet. 

gal. 

iter) 

psi 

(kPa) 

. pet. 

pet. 

N94-1. 

ASTM 

D2699 

D3237 

D86 

D86 

D86 

D86 

D86 

D1266 

D3231 

D323 

D1319 

D1319 

D1319 

Value 

93 

7.5 

(0.050)[1] 

(0.013)[1] 

75-95 

(23.9-35) 

120-135 

(48.9-57.2) 

200-230 

(93.3-110) 

300-325 

(148.9-162.8) 

415 

(212.8) 

0.10 

0.005 

(0.0013) 

8.0-9.2 

(60.0-63.4) 

10 

35 

[2] 

tl] Maximum. 

[2] Remainder 

(2) Unleaded gasoline representative of commercial 

gasoline which will be generally available through retail 

outlets shall be used in service accumulation. 

(i) The octane rating of the gasoline used shall be not 

higher than one Research octane number above the minimum 

recommended by the manufacturer and have a minimum sensitivity 

of 7.5 octane numbers, where sensitivity is defined as the 

Research octane number minus the Motor octane number. 

-68-
P.75 

(ii) The Reid Vapor Pressure of the gasoline used shall 

be characteristic of the motor fuel used during the season in 

which the service accumulation takes place. 

(3) Methanol fuel used for exhaust and evaporative 

emission testing and in service accumulation of methanol-fueled 

Otto-cycle engines shall be representative of commercially 

available methanol fuel and shall consist of at least 50 

percent methanol by Volume. 

(i) Manufacturers shall recommend the methanol fuel to 

be used for testing and service accumulation in accordance with 

paragraph (3). 

(ii) The Administrator shall determine the methanol fuel 

to be used for testing and service accumulation. 

(4) Other methanol fuels may be used for testing and 

service accumulation provided: 

(i) They are commercially available, and 

(ii) Information, acceptable to the Administrator, is 

provided to show that only the designated fuel would be used in 

customer service, and 

-69-
(iii) Use of a fuel listed under paragraph (a)(3) of this 

section would have a detrimental effect on emissions or 

durability, and 

(iv) Written approval from the Administrator of the fuel 

specifications must be provided prior to the start of testing. 

(5) The specification range of the fuels to be used 

under paragraphs (a)(2), (a)(3), and (a)(4) of this section 

shall he reported in accorajr..... wich §86.090-21(b) (3). 

(b) Diesel test: fua_. 

(1) The petroleum f.-'3ls for testing diesel engines 

employed for testing shaij. 02 clean and bright, with pour and 

cloud points adequate for operability. The petroleum fuel may 

contain nonmetallic additives as follows: Cetane improver, 

metal deactivator, antioxidant, dehazer, antirust, pour 

depressant, dye, dispersant, and biocide. Fuels specified for 

emissions testing are intended to be representative of 

commercially available in-use fuels. 

(2) Petroleum fuel for diesel engines meeting the 

specifications in Table N94-2, or substantially equivalent 

specifications approved by the Administrator, shall be used in 

exhaust emissions testing. The grade of petroleum fuel used 

shall be commercially designated as "Type 2-D" grade diesel 

-70-
P.77 

fuel except that fuel commercially designated as "Type 1-D" 

grade diesel fuel may be substituted provided that the 

manufacturer has submitted evidence to the Administrator 

demonstrating to the Administrator's satisfaction that this 

fuel will be the predominant in-use fuel. Such evidence could 

include such things as copies of signed contracts from 

customers indicating the intent to purchase and use "Type 1-D" 

grade diesel fuel as the primary fuel for use in the engines or 

other evidence acceptable to the Administrator. 

Item 

Cetane Number 

Cetane Index 

Distillation raige 

IBP, 

10 pet. po: 

50 pet. po: 

90 pet. po: 

EP, 

Gravity, 

Total sulfur, 

int 

Lnt 

Lnt 

> • 

op 

CC) 

, °F 

CC) 

, °F 

(°c) 

, °F 

CC) 

op 

CC) 

°API 

pet. 

Hydrocarbon composition: 

Aromatics, 

Paraffins, 

Olefins 

Flashpoint, min 

pet. 

Naphthenes 

• / °F, 

CC) 

Viscosity, centistokes 

Table N94-2 

ASTM 

D613 

D976 

D86 

D86 

D86 

D86 

D86 

D287 

D2622 

D1319 

/ 

D1319 

D93 

D445 

Type 1-D 

40-54 

40-54 

330-390 

(165.6-198.9) 

370-430 

(187.8-221.1) 

410-480 

(210-248.9) 

460-520 

(237.8-271.1) 

500-560 

(260.0-293.3) 

40-44 

0.03-0.05 

8[1] 

[2] 

120 

(48.9) 

1.6-2.0 

Type 2-D 

40-48 

40-48 

340-400 

(171.1-204.4) 

400-460 

(204.4-237.8) 

470-540 

(243.3-282.2) 

560-630 

(293.3-332.2) 

610-690 

(321.1-365.6) 

32-37 

0.03-0.05 

27[1] 

[2] 

130 

(54.4) 

2.0-3.2 

[1] Minimum. 

[2] Remainder. 

-71-
P.78 

(3) Petroleum fuel for diesel engines meeting the 

specifications in Table N94-3, or substantially equivalent 

specifications approved by the Administrator, shall be used in 

service accumulation. The grade of petroleum fuel used shall 

be commercially designated as "Type 2-D" grade diesel fuel 

except that fuel commercially designated as "Type 1-D" grade 

diesel fuel may be substituted provided that the manufacturer 

has submitted evidence to the Administrator demonstrating to 

the Administrator's satisfaction that this fuel will be the 

predominant in-use fuel. Such evidence could include such 

things as copies of signed contracts from customers indicating 

the intent to purchase and use "Type-1-D" grad* diesel fuel as 

the primary fuel for use in the engines or other evidence 

acceptable to the Administrator. 

Table N94-3 

ItiSED ASTM Type 1-D Type 2-D 

Cetane Number D613 40-56 30-58 

Cetane Index D976 min. 40 min. 40 

Distillation range: 

90 pet. point, °F D86 440-530 540-630 

(°C) (226.7-276.7)(282.2-332.2) 

Gravity, 

Total sulfur, pet. 

Flashpoint, 

°API 

Ct. 

min., °F, 

CC) 

istokes 

D287 

D2622 

D93 

D455 

39-45 

0.03-0.05 

120 

(48.9) 

1.2-2.2 

30-42 

0.03-0.05 

130 

(54.4) 

1.5-4.5 

(4) Methanol fuel used for exhaust and evaporative 

emission testing and in service accumulation of methanol-fueled 

-72-
P.79 

diesel engines shall be representative of commercially 

available methanol fuel and shall consist of at least 50 

percent methanol by volume. 

(i) Manufacturers shall recommend the methanol fuel to 

be used for testing and service accumulation in accordance with 

paragraph (4). 

(ii) The Administrator shall determine the methanol fuel 

to be used for testing and service accumulation. 

(5) Other fuels may be used for testing and service 

accumulation provided: 

(i) They are commercially available, and 

(ii) Information, acceptable to the Administrator, is 

provided to show that only the designated fuel would be used in 

customer service, and 

(iii) Use of a fuel listed under paragraphs (b)(2) and 

(b)(3) or (b)(4) of this section would have a detrimental 

effect on emissions or durability, and 

(iv) Written approval from the Administrator of the fuel 

specifications must be provided prior to the start of testing. 

-73-
P.80 

(6) The specification range of the fuels to be used 

under paragraphs (b)(2), (b)(3), (b)(4). and (b)(5) of this 

section shall be reported in accordance with §86.090-21(b)(3). 

(c) Fuels not meeting the specifications set forth in 

this section may be used only with the advance approval of the 

Administrator. 

(d) Mixtures of petroleum an_3 methanol tu&ls tsu. 

flexible fuel vehicles. (1) Mixtures of petroleum and 

methanol fuels used for exhaust and evaporative emission 

testing and service accumulation for flexible fuel vehicles 

shall be within the range of fuel mixtures for which the 

vehicle was designed. 

(2) Manufacturer testing and service accumulation may be 

performed using only those mixtures (mixtures may be different 

for exhaust testing, evaporative testing, and service 

accumulation) expected to result in the highest emissions, 

provided: 

(i) The fuels which constitute the mixture will be used 

in customer service, and 

(ii) Information, acceptable to the Administrator, is 

provided by the manufacturer to show that the designated fuel 

mixtures would result in the highest emissions, and 

-74-
P.81 

(iii) Written approval from the Administrator of the fuel 

specifications must be provided prior to the start of testing. 

(3) The specification range of the fuels to be used 

under paragraph (d)(2) of this section shall be reported in 

accordance with §86.090-21(b)(3). 

-75-