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SUPPORTING STATEMENT

PART A

1. IDENTIFICATION OF THE INFORMATION COLLECTION

1(a) TITLE AND NUMBER OF THE INFORMATION COLLECTION

Alternative Affirmative Defense Requirements for Ultra-low Sulfur Diesel. The current 

OMB control number is 2060-0639. The EPA number for this proposed information collection 

request (ICR) renewal is 2364.03. 

(b) SHORT CHARACTERIZATION/ABSTRACT

The highway diesel program regulations require most motor vehicle (highway) diesel fuel 

sold at retail stations to contain 15 parts per million (ppm) sulfur or less (hereafter referred to as 

ultra low sulfur diesel fuel, or ULSD) beginning October, 2006. General recordkeeping and 

reporting related to diesel fuel regulations for on-road, non-road and performance-based test 

methods are included in EPA ICR 1718.08 (OMB Control Number 2060-0277).

Under the regulation, where a violation of the 15 ppm sulfur standard is identified at a 

retail outlet, the retailer responsible for dispensing the noncompliant fuel is deemed liable, as 

well as the refiner(s), importer(s) and distributor(s) of such fuel. The highway diesel regulations 

further provide, however, that any person deemed liable can rebut this presumption by

establishing an affirmative defense that includes, among other things, showing that it conducted 

a quality assurance sampling and testing program as prescribed by the regulations. This ICR 

covers burdens and costs associated with provisions that allow refiners and importers of ULSD 

an alternative means of meeting the affirmative defense requirements in the diesel sulfur 

regulations by participating in a nationwide diesel fuel sampling and testing program. The 

reporting burden covered by this proposed ICR related to reports that refiners, importers and 

distributors, have to submit in the event they have a non-complying sulfur test result. (See 40 

CFR § 80.613.) The authority citation for the direct final rule and the association information 

collection is for the following Clean Air Act sections: 42 United States Code §§ 7414, 7542, 

7545, and 7601(a).

2. NEED FOR AND USE OF THE COLLECTION

(a) NEED/AUTHORITY FOR THE COLLECTION

The basic need and authority for the collection of information have been established in 

the ICR for the highway diesel final rule. The rule established specific recordkeeping and 

reporting requirements in order to enforce compliance with the 15 ppm sulfur standard for 

highway diesel fuel.

(b) PRACTICAL UTILITY/USERS OF THE DATA

The alternative affirmative defense (survey) provisions are designed to grant flexibility to 
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refiners and importers by permitting them to conduct activities normally conducted on a facility

basis on a nationwide basis. The burden described in this ICR only affects parties who receive a 

test result that indicates non-compliance. 

The EPA’s Office of Enforcement and Compliance Assurance and EPA’s Office of Air 

and Radiation, Office of Transportation and Air Quality, will be the governmental users of the 

information contained in this proposed information collection. 

3. NONDUPLICATION, CONSULTATIONS, AND OTHER COLLECTION CRITERIA

(a) NONDUPLICATION 

This proposed ICR is not unnecessarily duplicative of information otherwise reasonably 

accessible to the Agency. Wherever possible, we have designed the proposed regulation to make 

sure that there is no unnecessary duplication. 

(b) PUBLIC NOTICE REQUIRED PRIOR TO ICR SUBMISSION TO OMB

A copy of this supporting statement, the accompanying Federal Register notice 

announcing our proposal to renew this ICR is available in the public docket. We received no 

public comments.

(c) CONSULTATIONS

We encourage all interested parties to submit comments. We contacted two 

representatives from companies that may be affected by this ICR. Please see section 6(a). 

(d) EFFECTS OF LESS FREQUENT COLLECTION

Less frequent reporting would make discovery and correction of violations take too long 

to discover from the date of violation, and would give non-complying parties a competitive 

advantage for long periods of time. A lesser recordkeeping burden would make verification of 

compliance extremely difficult.

(e) GENERAL GUIDELINES

The general guidelines for the collection of information pursuant to the highway diesel 

rule are approved in the ICR for the final highway diesel rule. The record retention requirements 

specified is five (5) years. This proposed ICR also specifies five (5) years as the retention 

period.

(f) CONFIDENTIALITY AND SENSITIVE QUESTIONS

(i) Confidentiality
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Any information submitted to EPA for which a claim of confidentiality is made will be 

safeguarded according to EPA regulations at 40 C.F.R. 2.201 et seq. 

(ii) Sensitive Questions

This section is not applicable as this proposed ICR does not involve matters of a sensitive 

nature.

4. THE RESPONDENTS AND THE INFORMATION REQUESTED

(a) RESPONDENTS/NAICS and SIC CODES

Recordkeeping and, in some cases, reporting affects the following respondents: refiners 

(2911/324110), importers (5172/424720), marketers and other distributors (5171/424710 and 

5172/424720).

(b) INFORMATION REQUESTED

(i) Data Items, Including Recordkeeping and Reporting Requirements

Knowledge of the following definitions at 40 CFR 80.2 is important for a thorough 

understanding of the reporting and recordkeeping requirements:

“Motor Vehicle Diesel Fuel” means any diesel fuel or other distillate fuel sold in any

State (State means a State, the District of Columbia, the Commonwealth of Puerto Rico, the 

Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands) that is used, 

intended for use in, or made available for use in for use in motor vehicles or motor vehicle 

engines.

“Refiner” means any person who owns, leases, operates, controls, or supervises a 

refinery.

“Importer” means a person who imports 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).

There is a respondent burden associated with refiners, importers and distributors 

preparing a report for EPA explaining the circumstances behind and root causes for any 

noncompliant ULSD samples. There is also an Agency burden associated with reviewing each 

report. This burden is estimated below under “ESTIMATING THE BURDEN AND COST OF 

THE COLLECTION”. The following sections describe respondent and Agency activities.

(ii) Respondent Activities

The following may be required in the event of a non-complying sample:
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 Read and comprehend the regulations.

 Gather and organize the information.

 Report the information to EPA, as specified in the regulations.

5. THE INFORMATION COLLECTED--AGENCY ACTIVITIES, COLLECTION 

METHODOLOGY AND INFORMATION MANAGEMENT

(a) AGENCY ACTIVITIES

The following are required:

 Respond to inquiries.

 Provide access to the regulations and guidance documents.

 Review the submitted information.

 Contact the respondent when the information has not been submitted properly and provide 

guidance on correction of the problem.

 Perform data analysis and identify violations.

(b) COLLECTION METHODOLOGY AND MANAGEMENT

The information collection has been developed by EPA offices that have planned and 

allocated resources for the efficient and effective management and use of the information to be 

collected, including the processing of the information in a manner which will enhance the utility

of the information for the Agency and the public. The information collection, to the maximum 

extent practicable, uses appropriate information technology to reduce burden and improve data 

quality, Agency efficiency, and responsiveness to the public.

The information is carefully reviewed for compliance with the requirements. 

No changes to the collection methodologies in the existing ICR for the diesel rule are 

anticipated as a result of this proposed ICR modification.

(c) SMALL BUSINESS FLEXIBILITY

The alternative affirmative defense rule grants flexibility to all affected parties, regardless 

of size. The recordkeeping and reporting burden has been designed to be minimal for 

respondents of all business sizes. 

(d) COLLECTION SCHEDULE

Response is only required in the case of a non-complying sample.

6. ESTIMATING THE BURDEN AND COST OF THE COLLECTION

(a) ESTIMATING THE RESPONDENT BURDEN
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We drew upon consultation with industry and our own experience implementing similar 

regulations to estimate the burden associated with this ICR. We contacted representatives from 

two companies that may be affected from this ICR; one responded. The responding 

representative indicated that his company (ExxonMobil) believes the burden estimates in this 

ICR to be reasonable.

(b) ESTIMATING THE RESPONDENT COST

Three labor categories are involved: managerial (includes legal and professional review), 

technical, and clerical. The estimates use Bureau of Labor Statistics, "Employer Costs for 

Employee Compensation - Table 12 - Private Industry, Manufacturing, and Non-Manufacturing 

Industries by Occupational Group (December 2003), with a 3% inflation factor applied to bring 

the values to present dollars. Using this method, the following wages and benefits apply by 

category:

Wages and Benefits

Managerial $53.87 per hour

Technical $35.29 per hour

Clerical $24.56 per hour

Doubling for company overhead beyond wages and benefits, and for convenience, 

rounding up to the dollar, gives the following rates for this ICR:

Total Employer Cost

Managerial $108 per hour

Technical $71 per hour

Clerical $49 per hour

The labor mix for the activities estimated will be about the same for each and is 

consistent with prior ICRs in this series. It is assumed that for each hour of activity the mix will 

be about 0.1 hour managerial, 0.7 hour technical, and 0.2 hour clerical. This gives an average 

labor cost of $71 per hour, which will be used in this ICR modification. 

(c) ESTIMATING THE RESPONDENT UNIVERSE

We were able to estimate the number of regulated entities by drawing upon our 

experience regulating the same entities. Respondents for this action may include refiners, 

importers, and distributors. Based on history and enforcement experience, we expect that 

approximately 20 instances of non-compliance will result in 20 reports to be submitted each 

year. 
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Annual Respondent Burden Hours & Costs

(Including Non-Postage "Other Costs")

Collection

Activity

# of 

Respondents

# of Reports per 

Respondent

Total # of 

Reports

# of Hours 

per Report

Total 

Hours

Submit report 

for each 

exceedance

20 1 20 16 320

The estimated respondent burden for reviewing each report for a noncompliant sample is 

16 hours, or $1,136 per response, so the total respondent burden for evaluating 20 reports per 

year would be $22,720.

(d) ESTIMATING AGENCY BURDEN AND COST

The annual Agency burden is determined using the 2009 OPM hourly pay table applicable for 

the Washington DC area,1 with values multiplied by 1.6, the standard government benefits 

multiplier. The hourly wage rates are as follows, rounded up to the nearest five dollars: 

EPA Manager (GS-15, step one) = $93

Technical Staff (GS-13, step one) = $67

Clerical Staff (GS-5, step one) = $26

The total annual Agency burden hours are estimated as follows:

Activity # of 

Responses

Manager

Hours per 

Response

Technical

Hours per 

Response

Clerical

Hours per 

Response

Total 

Agency

Hours

Review report 

for each 

exceedance

20 0 2 0 40

Based on historical experience, we expect to find approximately 20 noncompliant samples per 

year. The estimated Agency burden for reviewing each report for a noncompliant sample is 2 

hours, or $134 per response, so the total Agency burden for evaluating 20 reports per year would 

be $2,680.

(e) BOTTOM LINE BURDEN HOURS AND COSTS

The annual estimates in burden hours and costs associated with this rule are as follows:

 

1 See “Salary Table 2009 – DCB,” US Office of Personnel Management, accessed July 16, 2009 at 

http://www.opm.gov/oca/09tables/html/dcb.asp.
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TOTALS FROM THE TABLES:

TOTAL NO. OF REPORTS: 20

TOTAL BURDEN HOURS: 320

TOTAL COST: $22,720

(f) REASON FOR CHANGE IN BURDEN

There is no change in burden.

(g) BURDEN STATEMENT

The average respondent burden in hours per response for this ICR is estimated at 16 

hours. Burden means the total time, effort, or financial resources expended by persons to 

generate, maintain, retain, or disclose or provide information to or for a Federal agency. This 

includes the time needed to review instructions; develop, acquire, install, and utilize technology

and systems for the purposes of collecting, validating, and verifying information, processing and 

maintaining information, and disclosing and providing information; adjust the existing ways to 

comply with any previously applicable instructions and requirements; train personnel to be able 

to respond to a collection of information; search data sources; complete and review the collection 

of information; and transmit or otherwise disclose the information. An agency may not conduct 

or sponsor, and a person is not required to respond to, a collection of information unless it 

displays a currently valid OMB control number. The OMB control numbers for EPA's 

regulations are listed in 40 CFR part 9 and 48 CFR chapter 15. 

To comment on the Agency's need for this information, the accuracy of the provided 

burden estimates, and any suggested methods for minimizing respondent burden, including the 

use of automated collection techniques, EPA has established a public docket for this ICR under 

Docket ID Number EPA-HQ-OAR-2007-1158, which is available for online viewing at 

www.regulations.gov, or in person viewing at the Air Docket in the EPA Docket Center 

(EPA/DC), EPA West, Room 3334, 1301 Constitution Avenue, NW, Washington, D.C. The 

EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-

1744, and the telephone number for the Air Docket is (202) 566-1742. An electronic version of 

the public docket is available at www.regulations.gov. This site can be used to submit or view 

public comments, access the index listing of the contents of the public docket, and to access 

those documents in the public docket that are available electronically. When in the system, 

select “search,” then key in the Docket ID Number identified above. Also, you can send 

comments to the Office of Information and Regulatory Affairs, Office of Management and 

Budget, 725 17th Street, NW, Washington, D.C. 20503, Attention: Desk Officer for EPA. Please 

include the EPA Docket ID Number EPA-HQ-OAR-2007-1158 and OMB Control Number 

2060-0639 in any correspondence.

B. COLLECTION OF INFORMATION EMPLOYING STATISTICAL METHODS

This section is not applicable because statistical methods are not used in the data 
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collection associated with the diesel fuel regulations.