70498 Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 

■ Therefore, for the reasons set out in 

the preamble, amend the authority 

citation for part 251, amend subpart A 

of part 261, and remove part 291of title 

36 of the Code of Federal Regulations as 

follows: 

PART 251—LAND USES 

■ 1. Revise the authority citation for part 

251 to read as follows: 

Authority: 7 U.S.C. 1011(f), 16 460l–6d, 

472, 497b, 497c, 551, 580d, 1134, 3210, 

6802(h); 30 U.S.C. 185; 43 U.S.C. 1740, 1761–

1771. 

Subpart B—Special Uses 

■ 2. Amend § 251.53 to revise paragraph 

(k) to read as follows: 

§ 251.53 Authorities. 

* * * * * 

(k) Special recreation permits issued 

under section 803(h) of the Federal 

Lands Recreation Enhancement Act (16 

U.S.C. 6802(h)), for specialized 

recreation uses of National Forest 

System lands, such as group activities, 

recreation events, and motorized 

recreational vehicle use. 

* * * * * 

PART 261—PROHIBITIONS 

■ 3. The authority citation for part 261 

continues to read as follows: 

Authority: 7 U.S.C. 1011(f); 16 U.S.C. 460l–

6d, 472, 551, 620(f), 1133(c)–(d)(1), 1246(i). 

Subpart A—General Prohibitions 

■ 4. Amend § 261.2 to add in 

alphabetical order a definition for 

‘‘recreation fee’’ to read as follows: 

§ 261.2 Definitions 

* * * * * 

Recreation fee means a standard 

amenity recreation fee, an expanded 

amenity recreation fee, or a special 

recreation permit fee as defined in 

section 802(8) of the Federal Lands 

Recreation Enhancement Act (16 U.S.C. 

6801(8)). 

* * * * * 

■ 5. Revise § 261.15 to read as follows: 

§ 261.15 Recreation fees 

Failure to pay any recreation fee is 

prohibited. Notwithstanding 18 U.S.C. 

3571(e), the fine imposed for the first 

offense of nonpayment shall not exceed 

$100. 

PART 291—OCCUPANCY AND USE OF 

DEVELOPED SITES AND AREAS OF 

CONCENTRATED PUBLIC USE 

PART 291—[REMOVED] 

■ 6. Remove the entire part 291. 

Dated: November 7, 2005. 

David P. Tenny, 

Deputy Under Secretary, Natural Resources 

and Environment. 

[FR Doc. 05–23111 Filed 11–21–05; 8:45 am] 

BILLING CODE 3410–11–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 80 

[OAR–2005–0153; FRL–7996–9] 

RIN 2060–AJ71 

Control of Air Pollution From New 

Motor Vehicles; Revisions to Motor 

Vehicle Diesel Fuel Sulfur Transition 

Provisions; and Technical 

Amendments to the Highway Diesel, 

Nonroad Diesel, and Tier 2 Gasoline 

Programs 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: The highway diesel fuel 

sulfur program, finalized in 2001, is 

resulting in the nationwide transition in 

2006 of most diesel fuel from low-sulfur 

diesel (LSD) to ultra-low sulfur diesel 

(ULSD). Some in the diesel fuel 

production and distribution industries 

indicated that they may be unable to 

complete the transition to ULSD by the 

current deadlines at the very furthest 

reaches of the distribution system. In 

response, today’s action makes limited 

changes to the transition provisions for 

entities in the highway diesel 

distribution system. These changes 

finely balance the concerns of the fuel 

industry and the critical need for ULSD 

to be available for 2007 diesel vehicles 

and engines. The impacts of the recent 

hurricanes along the Gulf Coast of the 

U.S. are not a contributing factor in 

taking today’s action, and there is no 

change in the June 1, 2006 start date for 

refiners to be producing ULSD (15 ppm 

sulfur). 

In today’s action, we extend the ULSD 

implementation dates for terminals and 

retail outlets by 45 days. Thus, 

terminals will have until September 1, 

2006 (vs. July 15) and retailers will have 

until October 15, 2006 (vs. September 1) 

to complete their transitions to ULSD. 

We also provide that downstream of the 

refinery fuel with a sulfur content 

slightly higher than 15 ppm may 

temporarily be sold as ULSD. In 

addition, we extend the beginning of the 

restriction on how much ULSD can be 

downgraded to higher sulfur fuel by 15 

days, to October 15, 2006 to be 

consistent with the end of the new 

transition dates. The rule also includes 

corrections to the recordkeeping and 

reporting requirements under the 

highway diesel program and also 

includes several minor amendments to 

the highway diesel sulfur, nonroad 

diesel sulfur, and gasoline sulfur 

programs to correct errors or omissions 

in the regulations. 

DATES: This direct final rule is effective 

on January 6, 2006 without further 

notice, unless we receive adverse 

comments by December 22, 2005 or 

receive a request for a public hearing by 

December 7, 2005. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. OAR–2005–0153. All documents in 

the docket are listed in the EDOCKET 

index at http://www.epa.gov/edocket. 

Although listed in the index, some 

information is not publicly available, 

i.e., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in 

EDOCKET or in hard copy at the Air 

Docket, EPA/DC, EPA West, Room 

B102, 1301 Constitution Ave., NW., 

Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744, and the telephone number for 

the Air Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: Tad 

Wysor, Assessment and Standards 

Division, U.S. EPA, National Vehicle 

and Fuels Emission Laboratory, 2000 

Traverwood, Ann Arbor, MI 48105; 

telephone (734) 214–4332, fax (734) 

214–4816, e-mail wysor.tad@epa.gov. 

SUPPLEMENTARY INFORMATION: We do not 

expect to hold a public hearing, 

however, if we receive such request we 

will publish information related to the 

timing and location of the hearing and 

the timing of a new deadline for public 

comments. If we receive adverse 

comment or a request for a hearing, we 

will withdraw the amendment, 

paragraph or section of the direct final 

rule receiving such comment or hearing 

request, and such withdrawn 

amendment, paragraph or section will 

Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 70499 

1The highway diesel sulfur program will be 

followed by the nonroad diesel sulfur program, 

issued in 2004. 69 FR 38958 (June 29, 2004). The 

nonroad program will require LSD to be produced 

for use in nonroad diesel engines beginning in 

2007. ULSD will be produced for use in nonroad 

diesel engines beginning in 2000, during the same 

time period when new stringent emissions 

standards will go into effect for new nonroad 

engines. 

not take effect. Any distinct 

amendment, paragraph, or section of 

today’s rulemaking for which we do not 

receive adverse comment or request for 

hearing will become effective on the 

date set out in the ‘‘DATES’’ section of 

today’s preamble. 

Does This Action Apply to Me? 

This action will affect you if you 

produce or distribute motor vehicle 

diesel fuel or gasoline. The table below 

gives an example of entities that may 

have to comply with the regulations. 

However, since this is only an example, 

you should carefully examine these and 

other existing regulations in 40 CFR part 

80. If you have any questions, please 

call the person listed in the FOR FURTHER

INFORMATION CONTACT section above. 

Category NAICS 

codes a SIC codes b Examples of potentially regulated industries 

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

Industry ............................................. 422710 5171 Diesel and gasoline fuel marketers and distributors. 

422720 5172 

Industry ............................................. 484220 4212 Diesel and gasoline fuel carriers. 

484230 4213 

Notes: 

a North American Industry Classification System (NAICS). 

b Standard Industrial Classification (SIC) system code. 

How Can I Obtain Copies of This 

Document and Other Related 

Information? 

Docket: EPA has established an 

official public docket for this action 

under Docket ID No. OAR–2500–0153 at 

http://www.epa.gov/edocket. The 

official public docket consists of the 

documents specifically referenced in 

this action, any public comments 

received, and other information related 

to this action. Although a part of the 

official docket, the public docket does 

not include Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

The official public docket is the 

collection of materials that is available 

for public viewing at the Air Docket in 

the EPA Docket Center, (EPA/DC) EPA 

West, Room B102, 1301 Constitution 

Ave., NW., Washington, DC. 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) 566–1742, and 

the telephone number for the Air Docket 

is (202) 566–1742. 

Electronic Access: You may access 

this Federal Register document 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

http://www.epa.gov/fedrgstr/. 

An electronic version of the public 

docket is available through EPA’s 

electronic public docket and comment 

system, EPA Dockets. You may use EPA 

Dockets at http://www.epa.gov/edocket/ 

to view public comments, access the 

index listing of the contents of the 

official public docket, and to access 

those documents in the public docket 

that are available electronically. 

Although not all docket materials may 

be available electronically, you may still 

access any of the publicly available 

docket materials through the docket 

facility identified above. Once in the 

system, select ‘‘search,’’ then key in the 

appropriate docket identification 

number. 

I. Amendments to the Highway ULSD 

Transition Provisions 

In 2001, EPA published the final rule 

for the Heavy-Duty Engine and Diesel 

Fuel program. 66 FR 5002 (January 18, 

2001). This rule, developed through 

extensive interaction with the diesel 

engine industry, refiners producing 

diesel fuel, diesel fuel distributors, 

states, and non-governmental 

organizations, will result in very large 

reductions in emissions from on-road 

trucks and buses. The health benefits of 

the program will far exceed the 

economic costs. All major stakeholders 

are supportive of the overall program. 

Key to the success of the program will 

be the near-total removal of sulfur from 

all diesel fuel used in highway diesel 

engines. Ultra-Low Sulfur Diesel (ULSD) 

fuel is a critical complement to the 

stringent new emission standards 

coming into effect for these engines 

during the same time period. These 

engine emission standards will require 

diesel engine manufacturers to 

introduce new emission control systems 

which will rely on the exclusive use of 

ULSD to maintain operability and 

effectiveness. 

The highway diesel fuel sulfur 

program will result in the nationwide 

production and distribution of ULSD 

fuel, diesel fuel that is subject to a sulfur 

level of 15 parts per million (ppm) or 

less. This fuel will replace current Low 

Sulfur Diesel (LSD) fuel used in 

highway vehicles, which is subject to a 

500 ppm sulfur standard. Together, the 

stringent engine emission standards and 

the stringent diesel fuel sulfur standards 

combine to represent a major step 

toward reducing the major public health 

concerns associated with emissions 

from on-highway diesel trucks and 

buses.1

The nationwide system that produces 

and distributes diesel fuel is complex 

and efficient, and these characteristics 

are reflected in the diesel sulfur 

program. The major segments of the 

industry are the producers (refiners and 

importers); companies operating fuel 

pipelines and other means of 

transporting fuel, and distribution 

terminals; fuel wholesalers and tank 

truck operators; and retailers and 

‘‘wholesale purchaser-consumers’’

(WPCs). All segments of the system are 

involved in the transition from current 

diesel fuel to the widespread 

availability of ULSD fuel, and each of 

the entities involved is affected by 

provisions of the rule. 

• Refining companies have been 

upgrading their refineries in order to 

remove most of the sulfur from diesel 

fuel and be ready to introduce ULSD 

highway fuel into the distribution 

system no later than June 1, 2006. 

• Pipeline and terminal operators are 

in the process of adding, upgrading, or 

making operational changes for 

equipment that handles diesel fuel, 

including piping, valves, and storage 

tanks. As ULSD begins to flow through 

the downstream distribution system, 

pipelines and terminals will either 

completely transition from LSD to 

ULSD, use separate capability to 

distribute ULSD to their downstream 

customers, or carefully manage 

sequential shipments of these products. 

70500 Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 

2Such 500 ppm fuel can only be used in model 

year 2006 and earlier highway diesel engines. 

3There are no restrictions on the volume of ULSD 

highway fuel that may be downgraded to heating 

oil, or nonroad, locomotive, and marine diesel fuel. 

4 In the nonroad diesel rule, EPA concluded that 

it would be appropriate to have a single antidowngrading date for all entities in the distribution 

system rather than set separate dates for terminals 

and retailers. Furthermore, the date was extended 

beyond the September 1 retail date in response to 

industry concerns that in some cases the final 

transition may take longer. 

• Retail and WPC facilities represent 

the final segment of the distribution 

system. These entities will also need to 

turn over their higher sulfur diesel fuel 

supplies and make operational 

adjustments to be able to supply ULSD 

to the ultimate consumers. 

The next sections of this preamble 

describe the technical and logistical 

issues facing the diesel fuel industry 

during the 2006 transition to ULSD 

highway fuel, including some concerns 

raised recently as we near the beginning 

of the implementation of the program. 

In today’s action, we implement limited 

revisions to the transition provisions of 

the highway diesel sulfur rule. These 

changes are designed to address 

transition issues concerning various 

segments of the diesel fuel industry and 

help facilitate the successful nationwide 

transition to ULSD fuel. 

Although the recent hurricanes along 

the Gulf Coast of the U.S. caused serious 

damage to a number of refineries, and 

the aftermath of the storms has 

continued to affect the petroleum 

industry, these events are not a 

contributing factor in taking today’s 

action. Based on the confidential 

information provided to us, as well as 

conversations with the affected refiners, 

the impacts of the hurricanes on the 

refineries appear to be temporary, and 

we do not expect to see any general 

impediments to the successful 

widespread production of ULSD by June 

1, 2006. To the extent that individual 

refineries may have experienced 

temporary delays that might impact 

their ULSD start-up schedules (due to 

direct impacts of the hurricanes or 

indirect impacts on their contractors 

and suppliers), there are provisions in 

the existing highway diesel program 

that allow EPA to consider cases of 

‘‘extreme, unusual, and unforeseen 

circumstances’’ (40 CFR 80.561). We 

will address these cases under these 

provisions on a refinery-by-refinery 

basis. 

As described below, this rule focuses 

on providing a limited amount of 

additional time for entities in the diesel 

fuel distribution system to flush higher 

sulfur fuel out of the system during the 

transition to ULSD. This rule does not 

affect the start date by which refiners 

need to be producing ULSD under the 

highway diesel program—June 1, 2006. 

In fact, although EPA has taken several 

actions in response to the hurricanes, 

none of these actions affects the start 

date of the program. 

A. The Existing ULSD Transition 

Provisions 

In developing the highway diesel 

sulfur program, EPA recognized several 

practical considerations inherent in 

successfully changing over most of the 

nation’s highway diesel fuel from LSD 

to ULSD before the introduction of new 

highway diesel engines designed to 

operate exclusively on ULSD fuel. The 

overall program, finalized in early 2001, 

provided long lead times for the diesel 

fuel refining and distribution industries 

to prepare for compliance in 2006. 

Incorporated in the program was a set of 

provisions carefully designed, with 

extensive input from industry and 

others, to ensure the smooth nationwide 

completion of the transition to ULSD. 

After the formal beginning of the 

program on June 1, 2006 and during the 

next few years, the opportunity for 

refiners and importers to produce and 

market 500 ppm highway diesel fuel 

will be significantly limited. As of June 

1, 2006, at least 80 percent of the 

highway diesel fuel that refiners 

produce or importers introduce must 

meet the 15 ppm sulfur standard. The 

remaining 20 percent can continue to be 

produced to a 500 ppm sulfur standard.2

The 2005 refiner pre-compliance report 

data provided by refiners indicate that 

about 90 percent of the highway diesel 

fuel produced or imported will meet the 

15 ppm sulfur standard beginning June 

1, 2006, well above the 80 percent 

requirement. Thus, the vast majority of 

all highway diesel fuel produced by 

refiners or introduced by importers will 

have reached ULSD levels by that date. 

Even before the June 1, 2006 refinery 

gate deadline for the ULSD requirement, 

we expect that several refiners will have 

begun introducing some volumes of 

ULSD into the distribution system. 

Starting June 1, 2006, if fuel is 

designated and marketed as ULSD, it 

must meet the ULSD standards. 

As very low sulfur diesel fuel begins 

to enter the distribution system, 

pipelines and terminals, and in some 

cases retailers and WPCs, will start to 

turn over their existing supplies of LSD 

fuel to ULSD. The transition will 

accelerate after June 1, 2006 as large 

volumes of ULSD enter the system. 

During this transition, all parts of the 

downstream distribution system, from 

pipelines through terminals, retailers, 

and wholesale purchaser consumers 

(WPCs), must designate their fuel for 

sulfur content. This will start to affect 

downstream entities as soon as refiners 

designate their fuel at the refinery gate 

as ULSD. If a downstream entity 

receives ULSD and designates it as 

ULSD, it is subject to the 15 ppm sulfur 

standard. If the downstream entity redesignates it as LSD, it is subject to the 

500 ppm sulfur standard. Under the 

existing diesel sulfur program, the 

downstream compliance dates in the 

regulations are based on the expectation 

that the transition to ULSD will be 

completed at the terminal stage by July 

15, 2006, and at the retail and WPC 

stage by September 1, 2006. 

These July 15 and September 1 

downstream transition dates for the 

terminal and retail levels do not 

themselves restrict the relative volumes 

of LSD and ULSD present in the 

distribution system downstream of the 

refiner and importer. Another provision 

of the regulations, the ‘‘antidowngrading’’ provision, provides the 

assurance that downstream entities in 

the system will begin providing the vast 

majority of the highway diesel fuel as 

ULSD. This provision establishes the 

date after which no more than 20 

percent of the ULSD highway fuel 

received by a downstream entity can be 

re-designated, or downgraded, to 500 

ppm highway diesel fuel.3

By limiting the volume of 15 ppm 

highway diesel fuel that can be 

downgraded to 500 ppm highway fuel, 

the program helps to ensure that the 

vast majority of highway diesel fuel that 

is marketed after that date will be ULSD 

and that ULSD will be available in all 

parts of the country for the engines that 

need it. Without the anti-downgrading 

limitation, terminals, retailers, and 

others in the distribution system could 

continue to blend 15 ppm highway fuel 

with 500 ppm highway fuel and simply 

market the fuel as 500 ppm highway 

fuel. This would have the potential to 

interfere with the successful 

implementation of the ULSD highway 

program by slowing the transition and 

reducing the volumes of ULSD available 

at the retail level. In the highway diesel 

rule, the anti-downgrading requirements 

were to take effect on June 1, 2006. 

However, this date was extended to 

October 1, 2006 in the recent Nonroad 

Diesel final rule in recognition of the 

need for mixing of the 15 ppm and 500 

ppm fuel as the distribution system is 

flushed out.4 The 20 percent 

downgrading limitation continues until 

May 31, 2010, after which downgrading 

is no longer a concern given that all 

highway diesel fuel must be ULSD. 

Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 70501 

5The change in the implementation date applies 

only to the sulfur standard of 40 CFR 80.520(a), not 

the dye requirements of 40 CFR 80.520(b). We do 

not believe that a similar delay in the 

implementation date for the dye requirements is 

needed or would be of value to entities in the 

distribution system. 

Although the July 15 and September 

1 downstream transition dates for the 

terminal and retail levels do not 

themselves restrict the relative volumes 

of LSD and ULSD, we expect that ULSD 

will become the predominant highway 

diesel fuel in most parts of the fuel 

distribution system well before the 

implementation of the anti-downgrading 

requirement. First, the pre-compliance 

reports compiled to date indicate that 

beginning June 1, 2006 most distributors 

will only be able to obtain ULSD or fuel 

being blended down to ULSD. Second, 

we expect that refiners will be 

motivated to bring ULSD to retail as 

soon as possible so that they can begin 

to recoup their capital investments 

through the sale of ULSD. Finally, fuel 

distributors will need to begin blending 

down much of their highway diesel fuel 

to ULSD specifications before the 

implementation date for the antidowngrading requirements in order to 

be in compliance with the antidowngrading specifications once they 

become effective. As a result, terminals 

and retail facilities will begin insisting 

on delivery of ULSD from their 

suppliers as soon as possible. Therefore, 

while the anti-downgrading provision 

ensures a date-certain for the final 

completion of the transition, the July 15 

and September 1 implementation dates 

for terminals and retailers/WPCs are 

important milestones in the transition to 

ULSD. 

B. Recent Concerns About the 

Transition 

All segments of the diesel fuel 

production and distribution system 

have been actively taking steps to 

prepare for the nationwide transition to 

ULSD fuel. The primary elements of the 

program are designed to work together 

to result in a relatively quick and 

efficient large scale shift from LSD to 

ULSD throughout the system. These 

elements include: 

• The leadtime provided since the 

rule was published in 2001, 

• The requirement that refiners 

produce the vast majority of fuel as 

ULSD by June 1, 2006, 

• The sequential implementation 

dates for refiners/importers, terminals, 

and retailers, and 

• The beginning of the antidowngrading requirements. 

In developing the highway diesel rule, 

each of these elements was evaluated 

individually and in combination, and 

the program was designed to maximize 

the efficiency and effectiveness of the 

transition to ULSD fuel. All information 

available to us continues to indicate that 

these elements will combine to result in 

a smooth transition to ULSD in most if 

not all cases, and no one has expressed 

concerns about completing the 

transition for the large bulk of diesel 

fuel. 

However, in recent months, some in 

the industry have expressed a degree of 

uncertainty in their ability to complete 

the transition by the current deadlines 

in the very farthest reaches of some of 

the more complex parts of the 

distribution system. These parts of the 

system can involve long pipelines, 

secondary pipeline systems, and several 

points where the flow of fuel is 

interrupted by temporary storage in 

break-out tanks. For these parts of the 

system, the process of completely 

blending down the fuel to 15 ppm levels 

in all the intermediate tanks presents 

somewhat greater challenges than do 

less complex systems. 

At the same time, the amount of time 

available to complete the ULSD 

transition and ensure the widespread 

availability of the fuel has been 

balanced with the absolute need for 

ULSD to be available for use in model 

year 2007 diesel engines and vehicles. 

Over the past four years, the engine and 

vehicle manufacturers have worked 

hard and have made substantial 

financial investments to develop 

sophisticated emission control systems 

to meet the 2007 emission standards, 

with the expectation that these systems 

would only be exposed to ULSD sulfur 

levels. Thus, the success of the new 

emission control standards for these 

engines hinges on the widespread 

availability of ULSD in time for the 

coordinated launch of 2007 model year 

engines and vehicles. Recognizing that 

transition times that are too long would 

interfere with the introduction of the 

new model year 2007 diesel engines 

designed to operate on ULSD, EPA 

incorporated this balance in the design 

of the highway diesel program. The 

appropriate transition time was the 

subject of many substantial comments 

on the proposed rule. 

EPA has re-evaluated this balance in 

light of the uncertainties that have been 

expressed. We are aware of no 

information that definitively shows that 

problems in the distribution system will 

in fact develop during the transition. In 

fact, the broad consensus is that for the 

vast majority of the country, the existing 

provision of the program should be 

sufficient. Still, we believe that limited 

additional flexibility for entities 

downstream of the refineries would 

help to address the potential problems 

that might be faced by certain limited 

portions of the distribution system. 

Today’s action will facilitate the 

thorough changeover of diesel fuel and 

increase the certainty that ULSD will be 

available on time for use in 2007 

engines and vehicles in all parts of the 

country. 

In considering an appropriate degree 

of additional flexibility for the 

distribution system as described in the 

next section, we held extensive 

consultations with the associations 

representing the heavy-duty and lightduty engine manufacturing industries, 

as well as meetings with individual 

companies. Based on these meetings, we 

have concluded that it is critical that the 

end of any additional downstream 

transition flexibility occur no later than 

October 15, 2006. We know of several 

instances in which extending the 

transition period until October 15 will 

indeed impact scheduled launch dates 

for Model Year 2007 engines. It is our 

understanding that, given the strong 

assurance that 15 ppm fuel will be 

broadly available by October 15, these 

companies are willing to delay their 

vehicle or engine introductions. 

However, any further delays would have 

significant impacts on their ability to 

launch their 2007 model year product 

lines and would be considered 

unacceptable. The actions we are taking 

today, as discussed next, balance the 

needs of both the fuel distribution and 

diesel engine manufacturing entities. 

C. Actions EPA Is Taking to Ease the 

Transition to ULSD 

EPA is taking three actions to address 

the transition concerns that have been 

raised and to facilitate the smooth 

transition across the country to ULSD 

highway fuel. First, in response to 

concerns raised by the diesel fuel 

production and distribution industries, 

EPA is extending by 45 days the dates 

in the regulations that identify when the 

transition is expected to be completed 

by downstream entities. This would 

now be September 1, 2006 for terminals 

and all entities upstream of terminals 

(and downstream of refiner and 

importer origination facilities), and 

October 15 for retailers and WPCs.5

Second, for consistency with this 

change of dates, EPA is also extending 

the deadline for meeting the antidowngrading requirements until 

October 15, 2006. This will mean that 

prior to that date entities can 

redesignate the ULSD highway fuel 

received from the refinery to LSD 

highway fuel without restriction, but 

after that date the ability to redesignate 

70502 Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 

6Under the existing program, these aspects of the 

program were not aligned. After the end of the retail 

transition period, September 1, 2006, and before the 

anti-downgrading date of October 1, 2006, retailers 

that wished to sell 15 ppm fuel as ULSD would 

have been able to downgrade as much of that fuel 

as they wished, which might have unnecessarily 

slowed the overall transition. 

7Some entities have indicated that their 

recordkeeping systems may not readily allow for a 

mid-month start to a compliance period. Therefore, 

we would allow them to maintain the original 

October 1, 2006 date at their option. 

8Currently, a downstream batch of ULSD with 

test results of 17 ppm is treated as in compliance 

with the 15 ppm sulfur standard. Under this 

temporary revision, a downstream batch of ULSD 

with test results of 24 ppm would be in compliance 

with the sulfur standard for ULSD. In both cases, 

this downstream adjustment only applies to testing 

of diesel fuel after it leaves the refinery, it does not 

apply to a refiner’s or importer’s fuel. 

9Such 500 ppm fuel can only be used in model 

year 2006 and earlier highway diesel engines. 

10The nonroad program includes small refiner 

and credit provisions that provide for the limited 

production of high sulfur (>500 ppm) NRLM diesel 

fuel until June 1, 2010. 

11Pursuant to Internal Revenue Service 

Requirements (26 U.S.C. 4082). 

12This is primarily due to the reduced need for 

segregated storage tanks prior to leaving the 

terminal. 

ULSD as 500 ppm highway fuel will be 

significantly restricted. 

Together, we expect that these 

changes will ensure that even the most 

remote parts of the distribution system 

will have sufficient time to transition to 

ULSD in an orderly way. With this 

additional time, all entities in the 

distribution system will be better able to 

learn how the system is responding as 

large volumes of very low sulfur fuel 

begin to flow, while still having 

sufficient time to react as necessary 

based on what they and others learn. 

Thus, they will be in a better position 

to complete the flushing of LSD from 

the system while minimizing capital 

expenditures for temporary measures 

otherwise needed only during the 

transition. Based on confidential 

conversations with engine and vehicle 

manufacturers, any extension beyond 

October 25 would have a serious impact 

on the introduction of new MY 2007 

highway diesel engines. 

With these changes, the expected end 

of the transition for retail outlets and the 

anti-downgrading date are now aligned. 

Thus, the date established in today’s 

action for the end of the additional retail 

transition flexibility (October 15, 2006) 

is now supported by the beginning of 

the anti-downgrading restriction on the 

same date. This alignment will help 

encourage retail entities to plan the 

transition of their diesel fuel so that not 

only will all ULSD they sell by October 

15, 2006 be 15 ppm, but also the vast 

majority of all highway fuel they sell 

will be ULSD under the antidowngrading provision.6 7

Finally, the third action EPA is taking 

to facilitate the transition to ULSD is to 

temporarily allow diesel fuel at a sulfur 

level of 22 ppm to be distributed 

downstream of the refinery as ULSD 

during this extended transition period.8

The existing program provides for a 2 

ppm adjustment for sulfur test results of 

downstream diesel fuel, to account for 

testing variability. Today’s revision 

temporarily allows an additional 

downstream adjustment of 7 ppm—to 

account for downstream sulfur 

contamination that may occur as the 

system transitions to ULSD—for a total 

adjustment of 9 ppm. This temporary 

increase applies for the same additional 

45 days noted above, expiring before the 

expected introduction of new 2007 

model year highway diesel engines. 

This additional adjustment factor is 

designed to help the transition by 

making it more likely that fuel will be 

classified by downstream entities as 

ULSD as early as possible, and that it 

will stay classified as ULSD throughout 

the distribution system. This will make 

it easier for the points near the end of 

the distribution system to keep the 

ULSD classification for the diesel fuel 

they receive as ULSD. During the 

transition to ULSD fuel, entities in the 

distribution system may find themselves 

in possession of fuel with test results 

slightly above 15 ppm sulfur, and we 

believe it will be beneficial if they are 

temporarily able to continue treating 

this fuel as ULSD during this transition 

period. This will reduce the perceived 

need for entities near the end of the 

distribution system to downgrade ULSD 

to 500 ppm LSD because of concern 

over liability from low level 

contamination remaining in the system. 

Reducing the need to downgrade will 

maximize the volume of highway fuel 

distributed as ULSD, which will help to 

ensure a timely transition to ULSD. 

II. Amendments To Ensure the 

Enforceability of the Highway Diesel 

Program 

As discussed in the previous section 

on the amendments to the ULSD 

transition provisions, the benefits of the 

highway diesel program depend on 

ensuring that beginning October 15, 

2006 the predominant fuel available at 

retail for use in highway diesel engines 

meets a 15 ppm sulfur standard. The 

highway diesel program’s Temporary 

Compliance Option (TCO) provides that 

up to 20 percent of highway diesel fuel 

produced by a refiner or introduced by 

an importer may continue to meet a 500 

ppm sulfur standard until June 1, 2010.9

Beginning December 1, 2010, all fuel 

used in any highway diesel engine must 

meet a 15 ppm sulfur standard. 

The nonroad diesel program requires 

that beginning June 1, 2007, diesel fuel 

produced for use in nonroad, 

locomotive, and marine diesel engines 

(NRLM diesel fuel) must meet a 500 

ppm sulfur standard.10 The nonroad 

program also provides for the generation 

of early credits for the production of 500 

ppm NRLM diesel fuel beginning June 

1, 2006. Thus, from June 1, 2006 

through December 1, 2010, we expect 

that there will be both 500 ppm NRLM 

and 500 ppm highway diesel fuel in the 

diesel fuel distribution system. While 

500 ppm highway diesel fuel may be 

used in highway or nonroad engines or 

other suitable distillate fuel applications 

without restriction, the nonroad rule 

closely controls how much 500 ppm 

diesel fuel that is designated as NRLM 

may be shifted for use in highway 

vehicles, in order to maintain the 

integrity of the highway program (by 

ensuring the production of 15 ppm 

diesel fuel). 

In the 1993 highway diesel rule, EPA 

generally required that any diesel fuel 

that does not show visible evidence of 

red dye would be subject to all of the 

requirements applicable to highway 

diesel fuel. To comply with this 

requirement, refiners add a visible trace 

of red dye to non-highway diesel fuel 

prior to it leaving the refinery gate. If 

this requirement were maintained, there 

would be no difficulty in differentiating 

500 ppm highway diesel fuel from other 

diesel fuel. During the development of 

the nonroad diesel rule, fuel distributors 

requested that EPA provide that 500 

ppm NRLM fuel not be subject to the 

refinery gate red dye requirement. This 

would allow for the fungible shipment 

of 500 ppm NRLM and 500 ppm 

highway diesel until the point in the 

distribution system where NRLM diesel 

fuel must be dyed red to indicate its 

non-tax status (that is, prior to leaving 

the terminal).11 Commenters stated that 

there would be a substantial savings in 

fuel distribution costs if the two grades 

of 500 ppm diesel fuel could be fungibly 

mixed until they leave the terminal.12

In considering this request from 

distributors in the nonroad diesel rule, 

EPA recognized that in the absence of 

the refinery gate red dye provisions, 500 

ppm sulfur highway diesel fuel allowed 

under the highway diesel fuel program’s 

TCO and 500 ppm NRLM diesel fuel 

would be physically the same up to the 

point where the NRLM leaves the 

terminal and is dyed for tax purposes. 

Therefore, maintaining the benefits and 

integrity of the highway diesel fuel 

Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 70503 

program required some means of 

differentiating highway diesel fuel from 

NRLM diesel fuel throughout the 

distribution system. For example, if a 

refiner produced all 500 ppm sulfur fuel 

and designated it as NRLM diesel fuel, 

that refiner would have no obligation to 

produce any 15 ppm sulfur highway 

diesel fuel. Without an effective way of 

limiting the use in the highway market 

of 500 ppm sulfur diesel fuel produced 

as NRLM diesel fuel, much more 500 

ppm sulfur fuel could find its way into 

the highway market than would 

otherwise happen under the highway 

program. This in turn could displace 15 

ppm sulfur diesel fuel that would have 

otherwise been produced. This series of 

events would circumvent the intent of 

the highway program’s TCO and 

sacrifice some of the resulting 

particulate matter (PM) and sulfur 

dioxide (SO2) emission benefits of the 

overall highway diesel program. If this 

occurred to any significant degree, it 

could also undermine the integrity of 

the highway program by threatening the 

widespread availability of 15 ppm 

sulfur diesel fuel nationwide for the 

vehicles that will need it. 

In lieu of the refinery gate red dye 

requirement, commenters suggested that 

EPA adopt accounting provisions to 

ensure that 500 ppm NRLM diesel fuel 

is not inappropriately shifted into the 

highway diesel market downstream of 

the refinery. Working cooperatively 

with industry, we developed provisions 

that require the designation of fuel and 

the tracking and balancing of fuel 

volumes, as well as related 

recordkeeping and reporting concerning 

the fuels received and delivered. Among 

other things, this allows for the fungible 

shipment of 500 ppm highway and 500 

ppm NRLM diesel fuel up to the point 

where such fuel leaves the terminal, 

while controlling the shift of NRLM fuel 

into the highway market. In the nonroad 

diesel final rule, we promulgated such 

accounting provisions allowing for the 

removal of the dye requirement and 

fungible distribution of 500 ppm diesel 

fuel. These provisions are part of the 

designation and tracking requirements 

adopted in the nonroad diesel rule. 

We intended that the removal of the 

dye requirement for 500 ppm NRLM 

diesel fuel coincide with the 

implementation date for the 

downstream limitations on 

redesignating 500 ppm NRLM as 500 

ppm highway fuel. By linking these 

dates, the integrity of the highway diesel 

program would be protected by the dye 

requirement for 500 ppm NRLM until its 

removal, and by the related designate 

and track requirements thereafter. 

However, the date specified in the 

regulatory text for the removal of the 

dye requirement for 500 ppm diesel fuel 

designated as NRLM was set earlier than 

the effective date for the requirements 

that restrict the ability to redesignate 

500 ppm NRLM as 500 ppm highway 

diesel fuel. The effective date for the 

removal of the refinery gate red dye 

requirement for 500 ppm NRLM is June 

1, 2006, whereas the effective date for 

the requirements that restrict the ability 

to redesignate 500 ppm NRLM as 500 

ppm highway diesel fuel is June 1, 2007. 

Thus, for the period of June 1, 2006 

through June 1, 2007, when refiners can 

produce 500 ppm NRLM for early 

credit, there is a ‘‘gap’’ in the designate 

and track regulations, resulting in the 

lack of effective regulatory requirements 

to prevent the misdirection of nonhighway 500 ppm diesel fuel into the 

highway diesel market. 

A. Description of Today’s Action 

Today’s action amends the diesel fuel 

program to require that beginning June 

1, 2006, any entity that receives and/or 

distributes 15 ppm or 500 ppm highway 

diesel fuel must demonstrate 

compliance with the requirements 

limiting the redesignation of 500 ppm 

NRLM to 500 ppm highway fuel. Each 

entity that distributes and/or receives 15 

ppm and/or 500 ppm highway diesel 

fuel after that date will be required to 

demonstrate compliance with these 

requirements during each quarterly 

compliance period beginning June 1, 

2006. Each such entity will also have to 

report to EPA on the volume of 15 ppm 

and 500 ppm highway diesel fuel that 

they receive and distribute, broken 

down by exchange partner. 

As discussed in the next section, we 

believe that the approach we are 

establishing today will be effective in 

closing the unintended gap in the 

designate and track regulations. In 

addition, it has advantages over several 

other approaches that we evaluated. The 

next section describes each of the 

options we evaluated and also describes 

provisions we are including to mitigate 

any negative impact of this change on 

entities that distribute diesel fuel. 

B. Evaluation of Options 

In evaluating how best to resolve this 

regulatory gap in the designate and track 

regulations, EPA evaluated three 

options. One option we evaluated 

would require that all undyed 500 ppm 

diesel fuel be designated as motor 

vehicle (highway) diesel fuel from June 

1, 2006 through May 31, 2007. Since all 

undyed 500 ppm fuel would be 

considered highway diesel fuel, there 

would be no way for refiners to direct 

500 ppm NRLM fuel into the highway 

market, thus helping to maintain the 

integrity of the highway diesel program. 

However, this approach would need to 

include the elimination of the NRLM 

program provisions that allow the 

generation of early credits via the sale 

of 500 ppm NRLM fuel before June 1, 

2007. 

The elimination of the early NRLM 

credit provisions could significantly 

impact refiners planning to generate 

and/or use early 500 ppm NRLM 

credits. In addition, such an approach 

might result in the shifting of more 500 

ppm fuel production to the highway 

market than would have otherwise 

occurred, interfering with the flexibility 

offered by the temporary compliance 

option (TCO) in the highway diesel 

program. It is very late in the planning 

process for any refiners planning to use 

any of these flexibilities in the NRLM 

and highway diesel programs. 

Consequently, we do not believe it 

would be appropriate to pursue this 

option. 

Another option we evaluated would 

address the timing problem by moving 

the effective date of the removal of the 

red dye requirement for 500 ppm NRLM 

diesel fuel from June 1, 2006 to June 1, 

2007. By requiring that 500 ppm NRLM 

fuel continue to be dyed at the refinery 

gate, the integrity of the highway diesel 

program would be maintained, since the 

dye would prevent NRLM from being 

diverted into the highway diesel pool 

during that period. The serious problem 

with this approach, however, is that 

refiners or importers, as well as 

pipelines and terminals, that are 

planning to ship 500 ppm fuel for the 

highway and NRLM markets together 

would be prevented from doing so. 

Again, especially because of the late 

date, we believe it would be 

inappropriate to change the program in 

ways that may significantly change 

diesel fuel production and distribution 

plans. 

The third option that that we 

evaluated, and, as described above, the 

one we are adopting today, would 

amend the diesel fuel program to begin 

certain designate and track provisions 

on June 1, 2006. Thus, any downstream 

entity that receives and/or distributes 15 

ppm or 500 ppm highway diesel fuel 

after that date would need to 

demonstrate, for these fuels, compliance 

with the limitations on redesignating 

500 ppm NRLM as 500 ppm highway 

fuel. We believe that this approach is 

most consistent with the express 

purpose of the provisions of the 

nonroad rule—to allow refiners and 

importers to freely mix 500 ppm 

highway and NRLM diesel fuel in the 

absence of the red dye requirement 

70504 Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 

13Today’s action moves the compliance date with 

the anti-downgrade requirements forward from 

October 1, 2006 to October 15, 2006. See section I 

in today’s preamble. 

while maintaining the integrity of the 

highway diesel fuel program. We also 

believe that this approach will result in 

the least number of substantive changes 

to the existing program. 

Members of the fuel industry have 

noted that some fuel distributors may 

have to establish reporting systems 

earlier than they had planned. However, 

we have assessed the additional 

reporting and recordkeeping 

requirements of this action and we have 

concluded that the additional resources 

some entities may need to expend in 

response to today’s action will be 

relatively modest and the available lead 

time should be sufficient. However, in 

response to industry concerns expressed 

about these unanticipated requirements, 

today’s action contains two provisions 

to help mitigate these concerns. First, as 

mentioned above, the new, earlier handoff reporting requirements will be 

limited to 15 ppm and 500 ppm 

highway diesel fuel transfers for the first 

four quarterly compliance periods (i.e., 

no new reporting will be required for 

NRLM fuel.) Second, today’s action 

allows entities to partially consolidate 

their designate and track requirements 

during the first year of the highway 

diesel program. Thus, the highway 

diesel volume balance and hand-off 

reporting requirements for the first two 

quarterly compliance periods may be 

combined, as may those of the third and 

fourth compliance periods. Although 

some entities may need to establish 

reporting systems earlier than they had 

anticipated, this provision reduces the 

reporting burden considerably for the 

first year. 

Finally, EPA received four additional 

suggestions that, on further 

consideration, we believe would be 

unworkable. One of these was to make 

use of the existing anti-downgrade 

provisions to restrict the shifting of 500 

ppm NRLM into the highway diesel 

pool during the first year of the program 

until the D&T requirement originally 

intended for this purpose becomes 

effective. However, in order for the antidowngrade provision to conceivably 

accomplish the purpose of closing the 

gap in the highway diesel fuel program, 

the intended purposes of the provisions 

would be largely lost. For example, the 

most straightforward of four options that 

refiners and importers have to 

demonstrate that they are meeting the 

downgrading restrictions would need to 

be eliminated during the first year, since 

it could allow significant shifting of 500 

ppm fuel into the highway diesel pool. 

In addition, as described above, the 

issues of inconsistent dates (June 1, 

2006 vs. October 15, 2006 13) and lack of 

reporting requirements would also need 

to be addressed in any revision of the 

anti-downgrading provisions. Overall, 

we believe that using the antidowngrading provisions to resolve the 

problem is unworkable. In any event, to 

modify the anti-downgrade provisions 

to correct the shortcomings would have 

no advantage over the approach being 

finalized today. 

The second concept suggested to us 

would have some characteristics of the 

approach we are adopting in this rule. 

However, instead of requiring that the 

highway fuel volume balance and handoff reporting begin on June 1, 2006, this 

concept would introduce a new 

provision that would require a balance 

of NRLM fuel and associated reporting 

during that first year of the program. 

While this concept would have the 

possible benefit of limiting attention to 

the pool of fuel most likely to create 

problems for the program—that is 500 

ppm NRLM produced for early credit 

purposes, it has other major problems. 

For example, downgrades or losses 

from the 500 NRLM pool would result 

in noncompliance. More importantly, 

500 ppm from other pools (e.g., jet fuel) 

would not be prevented from entering 

the highway pool. Further, a volume 

balance is not otherwise required for 

NRLM fuel under the designate and 

track regulations. Thus, this approach 

would represent a significant and yet 

temporary change to the program; 

requiring the establishment of 

recordkeeping and reporting 

requirements now that would have no 

use later. We do not believe the concept 

represents a workable alternative to the 

approach we are adopting. 

A third suggestion was that perhaps 

the approach we are finalizing could be 

limited only to those facilities that 

handle 500 ppm NRLM. However, we 

have concluded that such a concept 

would not be adequately enforceable. 

This is because without highway fuel 

balance requirements and hand-off 

reports, it would not always be possible 

to trace the complete line of hand-offs 

and demonstrate whether any 500 ppm 

NRLM fuel entered the highway market. 

Further, it would likely suffer from 

confusion caused by new facilities that 

entered into the 500 ppm NRLM market 

as the June 1, 2007 start date for the 

NRLM diesel program neared and thus 

began to be subject to the balance and 

reporting requirements. We believe that 

this concept would be an unworkable 

substitute for the approach we have 

finalized. 

A final suggestion was to avoid 

specific new designate and track 

requirements by simply introducing a 

clear prohibition against inappropriate 

shifts of undyed 500 ppm NRLM fuel 

into the highway diesel pool. However, 

without associated tracking and 

reporting, EPA would have difficulty 

identifying where instances of noncompliance might be occurring. 

Although it was suggested that 

violations would likely be few and that 

EPA could depend on entities informing 

EPA of potential violations by their 

competitors, we believe that this would 

create too much uncertainty for all 

parties, including EPA. Further, we are 

concerned that this uncertainty might 

embolden some entities to stretch the 

boundaries of the program 

requirements. For example, an entity 

might sell substantial amounts of 500 

ppm nonroad as highway fuel or other 

inappropriate actions. Without a clear 

highway diesel fuel balance requirement 

and reporting, we would have limited 

ability to demonstrate that such actions 

were ‘‘inappropriate.’’ On balance, we 

believe that the addition of modest new 

volume balance and reporting 

requirements between June 1, 2006 and 

June 1, 2007 represent a necessary 

component of the program. 

We are making several changes to the 

regulations in order to implement the 

actions discussed above. In general, this 

is accomplished by adding 4 earlier 

quarterly reporting periods and one 

Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 70505 

14The registration of mobile facilities is also 

discussed in the Mobile Facilities Guidance 

Document, whish can be found on the Clean Diesel Compliance Help page at (www.epa.gov/ 

cleandiesel/comphelp). 

earlier annual reporting period covering 

the period June 1, 2006 to June 1, 2007, 

as well as allowing some of the reports 

to be combined. The volume balance 

and hand-off compliance and reporting 

requirements for non-highway 

designated diesel fuels are not affected 

by today’s action. 

The following table II–1 lists each of 

the regulatory provisions that are 

revised in today’s action relating to the 

actions discussed above. 

TABLE II–1.—SUMMARY OF AMENDMENTS TO ENSURE THE ENFORCEABILITY OF THE HIGHWAY DIESEL PROGRAM

Section Description 

80.597 ............... Amended to require registration if an entity intends to deliver or receive custody of any designated fuels by June 1, 2006. In 

addition to supporting the implementation of the highway volume balance and hand-off requirements in 2006, this amendment is also needed to support compliance with current product transfer document requirements under section 80.590. 

80.599 ............... Amended to add 4 quarterly compliance periods covering June 1, 2006–September 30, 2007, October 1, 2006–December 31, 

2006, January 1, 2007–March 31, 2007, and April 1, 2007–May 31, 2007, and one annual compliance period covering June 

1, 2006–May 31, 2007. Amended to define MV500BINV as the volume of fuel designated as 500 ppm motor vehicle diesel 

fuel at the beginning of the program (June 1, 2006). 

80.600 ............... Amended to require recordkeeping by each facility that receives or distributes 15 ppm or 500 ppm highway diesel fuel beginning June 1, 2006. 

80.601 ............... Amended to require reporting regarding demonstration of the new compliance periods added to section 80.599 and to limit reporting to the highway volume balance and highway hand-off requirements for the period of June 1, 2006–May 31, 2007. 

Provides dates by which reports must be submitted. 

III. Amendments to the Registration 

Requirements for Mobile Facilities 

Parties throughout the fuel production 

and distribution system use mobile 

components (or mobile vessels- i.e., 

ships/barges, trucks, rail cars, etc.) to 

transfer product from one point to 

another. These are referred to as mobile 

facilities by EPA for purposes of 

registration and compliance with the 

designate and track requirements. 

Questions have arisen regarding how 

individual mobile facilities can be 

aggregated for registration purposes. To 

provide clarification on how such 

aggregation might take place, today’s 

action amends the provisions pertaining 

to the registration of mobile facilities. 

Mobile facilities are sometimes owned 

by an entity in the fuel industry who 

also owns a stationary facility (e.g. 

terminal) that would be required to be 

registered with EPA. However, in most 

cases, the use of a mobile facility is 

obtained through a contract with 

another party or entity. Such contracts 

are often of short duration, and the 

make-up of the fleet of individual 

mobile facilities serving a given fuel 

distributor is continually in flux. Given 

this situation, fuel distributors stated 

that requiring every individual mobile 

facility or entity owning a fleet of 

individual mobile facilities to register 

would be unworkable. We agree, and 

therefore, we believe that it is 

appropriate to modify the regulations to 

allow a registered entity to register the 

mobile facilities that distribute its fuel. 

Under the current regulations, an entity 

has to register facilities where they have 

custody of fuel. For mobile facilities we 

are allowing an entity to register a 

mobile facility where the entity has title 

to the fuel, even if it does not have 

custody. The registration would, 

however, only cover the mobile facility 

for the fuel to which the entity has title. 

A registered entity may register one 

mobile facility, or multiple mobile 

facilities defined by area or component 

type. Any number of individual mobile 

components (i.e. ships/barges, trucks, 

rail cars) could be aggregated under a 

given mobile facility registration. 

Specifics regarding the make up of the 

fleet (e.g. number and identity of ships/ 

barges) comprising a mobile facility 

would not need to be provided to EPA 

at the time of registration.14

Compliance with the designate and 

track regulations would be the 

responsibility of the entity that 

registered the mobile facility. In the 

event of a designate and track violation, 

the registered entity would be still 

presumed liable. However, compliance 

with the applicable fuel sulfur standard 

would still be the responsibility of both 

the registered entity and the owner/ 

operator of the individual mobile 

component in which the fuel is located. 

Further, in the event of the discovery of 

non-compliant product, EPA may apply 

presumptive liability to the owner of the 

individual mobile component in which 

the product is found, the registered 

entity, and all parties upstream. 

The allowance of mobile facilities has 

resulted in changes to the definition of 

a facility and the registration and 

recordkeeping requirements. We have 

amended the definition of a facility to 

include the situation of a mobile 

facility, where a registered entity may 

not have custody of fuel while it is 

being transported in a component, but 

the entity retains title to the product. 

This change to the definition allows an 

entity to register a mobile component 

that is transporting its product as part of 

the entity’s facility. The changes to the 

regulations allow for this registration of 

mobile facilities (§ 80.597) and state 

specifications for additional records that 

need to be kept for registered mobile 

facilities (§§ 80.600 and 80.602). These 

changes are all noted below in Table III–

1. 

As noted above, the registered entity 

would be presumed liable in the case of 

a designate and track violation. We have 

not made changes to any of the 

provisions that deal with standards 

violations, so all requirements for 

meeting the applicable sulfur, dye, and 

marker standards remain in place. Thus, 

any person that could be considered 

liable for a prohibited act under § 80.613 

(any refiner, importer, distributor, 

reseller, carrier, retailer, wholesale 

purchaser consumer) who owned, 

leased, leased, operated, controlled, or 

supervised a facility where a violation 

occurred can be presumed liable if a 

non-compliant product is found in a 

mobile facility. 

With the exception of the changes 

discussed above and in Table III–1, 

there are no additional requirements. 

Mobile facilities will be treated similar 

to all other registered facilities in the 

designate and track system. 

70506 Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 

TABLE III–1.—SUMMARY OF AMENDMENTS TO THE REGISTRATION REQUIREMENTS FOR MOBILE FACILITIES

Section Description 

80.502 ............... Added additional language to the definitions in paragraph (b) to allow for mobile facilities. 

80.597 ............... Added paragraph (d)(3)—registration of mobile facilities. 

80.600 ............... Added additional language on recordkeeping requirements for mobile facilities, and renumbered some paragraphs. 

80.602 ............... Added additional language on recordkeeping requirements for mobile facilities, and renumbered some paragraphs. 

IV. Miscellaneous Other Technical 

Amendments to the Highway and 

Nonroad Diesel Programs and the Tier 

2 Gasoline Program 

After promulgation of the highway 

diesel, nonroad diesel, and Tier 2 

gasoline programs, and subsequent 

technical amendments, we discovered 

several typographical errors. It also 

became evident that several additions/ 

deletions were necessary to clarify 

portions of the regulations. The 

amendments contained in today’s rule 

to remedy these problems are 

summarized in the following Table IV–

1. 

TABLE IV–1.—SUMMARY OF MISCELLANEOUS TECHNICAL AMENDMENTS TO THE HIGHWAY AND NONROAD DIESEL

PROGRAMS AND THE TIER 2 GASOLINE PROGRAM

Section Description 

80.215 ............... Revised to add Klickitat County to the list of Geographic Phase-In Areas. 

80.531 ............... Removed and reserved paragraph (c)(2)(ii). This change was inadvertently left out of the regulatory text of the Direct Final 

Rule published on July 15, 2005 (40 FR 40889) which was intended to allow refiners and importers to generate early credits (June 1, 2005 through May 31, 2006) for the entire volume of ULSD delivered into the distribution system rather than the 

volume delivered to the end user. 

80.533 ............... Corrected the language in (e)(2) to state ‘‘BNRLM’’ instead of ‘‘NRLM’’. 

80.590 ............... Revised to clarify what parties will be affected by the requirement that transferee ID numbers appear on product transfer documents; revised to clarify how parties shall denote the level of the standard on product transfer documents. 

80.592 ............... Revised to change the cite in (a)(2)(iii) from ‘‘80.580(a)(4)’’ to ‘‘80.580(d)’’

80.593 ............... Revised to correct the section number that is cited in 80.593(a)(7)(i) from ‘‘80.523’’ to ‘‘80.598.’’

80.599 ............... Paragraphs 80.599(b)(4), (b)(5), (e)(2), and (e)(3) were revised to maintain consistency with the symbol conventions in the 

formulas found in this section. 

80.601 ............... Revised paragraph (d)(3) to clarify reporting requirements. 

80.602 ............... Revised paragraph (a)(2)(iii) to correct the cite ‘‘80.580(a)(4)’’ to ‘‘80.580(d)’’; and revised paragraph (b) to correct the cite 

‘‘80.660’’ to ‘‘80.560.’’

V. Public Participation 

Because EPA views the provisions of 

the action as noncontroversial and does 

not expect adverse comment, we are 

proceeding by direct final rulemaking. If 

we receive adverse comment on one or 

more distinct amendments, paragraphs, 

or sections of this rulemaking, or receive 

a request for hearing within the time 

frame described above, we will publish 

a timely withdrawal in the Federal 

Register indicating which provisions 

will become effective and which 

provisions are being withdrawn due to 

adverse comment. Any distinct 

amendment, paragraph, or section of 

today’s rulemaking for which we do not 

receive adverse comment will become 

effective on the date set out above, 

notwithstanding any adverse comment 

on any other distinct amendment, 

paragraph, or section of today’s rule. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), the Agency is 

required to determine whether this 

regulatory action would be ‘‘significant’’

and therefore subject to review by the 

Office of Management and Budget 

(OMB) and the requirements of the 

Executive Order. The order defines a 

‘‘significant regulatory action’’ as any 

regulatory action that is likely to result 

in a rule that may: 

• Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; 

• Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

• Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or, 

• Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

Pursuant to the terms of Executive 

Order 12866, EPA has determined that 

this final rule is not a ‘‘significant 

regulatory action’’. Today’s action 

moves the implementation date for 

certain recordkeeping and reporting 

requirements under the highway diesel 

program from June 1, 2007 to June 1, 

2006 for an additional one time cost of 

$11,570,000 (see sections II and IV.B. in 

today’s preamble). Today’s final rule 

extends the terminal and retail ULSD 

implementation dates, and the effective 

date of the anti-downgrading 

requirement, and increases the 

downstream sulfur adjustment factor 

during the transition period to ULSD 

(see section I in today’s preamble). 

There are no new costs associated with 

these provisions. There are also no new 

costs associated with the other 

miscellaneous technical amendments to 

the highway diesel, nonroad diesel, and 

Tier 2 gasoline programs contained in 

today’s notice (see section III in today’s 

preamble). Therefore, this final rule is 

not subject to the requirements of 

Executive Order 12866. Final Regulatory 

Support Documents were prepared in 

connection with the original regulations 

for the Highway Diesel Rule, Nonroad 

Diesel Rule, and Tier 2 gasoline rule as 

promulgated on January 18, 2001, June 

29, 2004, and February 10, 2000 

Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 70507 

1 During the course of the Nonroad Rule, the 

Agency converted from the legacy docket system to 

the current electronic docket system (EDOCKET). 

respectively, and we have no reason to 

believe that our analyses in the original 

rulemakings were inadequate. The 

relevant analyses are available in the 

docket for the January 18, 2001 

rulemaking (A–99–061), the June 29, 

2004 rulemaking (OAR–2003–0012 and 

A–2001–28) 1, and the February 10, 

2000 rulemaking (A–97–10), and at the 

following Internet addresses: http:// 

www.epa.gov/cleandiesel and http:// 

www.epa.gov/tier2. The original actions 

were submitted to the Office of 

Management and Budget for review 

under Executive Order 12866. 

B. Paperwork Reduction Act 

The annual information collection 

burden associated with this action was 

accounted for in previously approved 

ICRs. The provisions of this direct final 

rule provide limited additional 

flexibility to entities in the highway 

diesel distribution system during the 

transition to ultra-low sulfur diesel fuel 

in 2006. The other miscellaneous 

amendments in today’s notice contain 

technical corrections and clarifications 

which do not include any new 

information collection requirements. 

The amendments to the designate and 

track provisions under the highway and 

nonroad diesel programs contained in 

section II of today’s direct final rule 

require compliance with these 

provisions beginning June 1, 2006. 

Compliance with these provisions was 

previously required beginning June 1, 

2007. The annual compliance burden 

associated with these provisions is not 

affected by advancing the 

implementation date by one year. This 

annual burden was accounted for in the 

current information collection request 

for the highway and nonroad diesel fuel 

programs. The Office of Management 

and Budget (OMB) has previously 

approved the information collection 

requirements contained in the existing 

highway rule (66 FR 5002, January 18, 

2001), the existing Nonroad Rule (69 FR 

38958, June 29, 2004), and the existing 

Tier 2 gasoline rule (65 FR 6698, 

February 10, 2000), under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. The ICRs 

contained in the highway diesel and 

nonroad diesel rules were assigned 

OMB control number 2060–0308, and 

EPA ICR number 1718.06. This ICR is 

currently being revised to reflect the 

change in the implementation date for 

the pertinent designate and track 

requirements from June 1, 2007 to June 

1, 2006. The annual compliance burden 

for the full designate and track 

requirement beginning in June 1, 2007 

was estimated at $11,570,000 and 

178,000 hours. The designate and track 

requirements that today’s rule make 

effective June 1, 2006, are for a limited 

subset of designated fuels (highway 

diesel only), and the reporting 

requirements for the initial year (June 1, 

2006–May 31, 2007) were abbreviated 

by today’s rule. Therefore, the annual 

burden for the initial year is expected to 

be somewhat less than that estimated for 

following years. 

The ICRs contained in the Tier 2 

gasoline rule were assigned OMB 

control number 2060–0437, and EPA 

ICR number 1907.02. A copy of the 

OMB approved Information Collection 

Requests (ICRs) may be obtained from 

Susan Auby, Collection Strategies 

Division; U.S. Environmental Protection 

Agency (2822T); 1200 Pennsylvania 

Ave., NW., Washington, DC 20460 or by 

calling (202) 566–1672. 

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 in 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility 

EPA has determined that it is not 

necessary to prepare a regulatory 

flexibility analysis in connection with 

this direct final rule. EPA has also 

determined that this rule will not have 

a significant economic impact on a 

substantial number of small entities. For 

purposes of assessing the impacts of this 

final rule on small entities, a small 

entity is defined as: (1) A small business 

that meets the definition for a small 

business based on Small Business 

Administration (SBA) size standards; (2) 

a small governmental jurisdiction that is 

a government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. The ULSD 

transition provisions in today’s direct 

final rule provide limited, temporary 

flexibility to entities in the highway 

diesel distribution system downstream 

of the refineries and import facilities. 

Advancing the implementation date for 

certain recordkeeping and reporting 

requirements under the highway diesel 

program as described in section II of 

today’s preamble will result in 

additional one year of cost of 

compliance with these provisions for all 

affected fuel distributors, including 

those that are small entities. During the 

rulemaking that resulted in the 

promulgation of these provisions, we 

determined that they would not have a 

significant impact on a substantial 

number of small entities. The other 

miscellaneous technical amendments to 

the highway diesel, nonroad diesel, and 

Tier 2 gasoline programs do not impose 

a significant new burden to any 

regulated party. 

Prior to proposing the Highway Rule 

on June 2, 2000, the Nonroad Rule on 

May 23, 2003, and the Tier 2 Gasoline 

Rule on May 13, 1999 EPA conducted 

outreach to small entities and convened 

Small Business Advocacy Review 

(SBAR) panels to obtain the advice and 

recommendations of representatives of 

the small entities that potentially would 

be subject to the requirements of the 

rules (66 FR at 5130, 69 FR at 39155–

6, and 69 FR 39155–39162 respectively). 

For a full description of the Panel 

process, the SBAR report, and the initial 

Regulatory Flexibility Analyses (in 

Chapters 8, 11, and 8 respectively) of 

each rule’s Regulatory Impact Analysis 

(RIA), refer to the docket for the 

Highway Diesel Rule (Public Docket A–

99–061), the Nonroad Diesel Rule 

(Public Docket OAR–2003–0012 and A–

2001–28), and the Tier 2 Gasoline Rule 

(Public Docket A–97–10), and the 

following Internet addresses: http:// 

www.epa.gov/cleandiesel/ and http:// 

www.epa.gov/tier2/ 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

federal agencies to assess the effects of 

their regulatory actions on state, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘federal mandates’’ that may result 

70508 Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 

in expenditures to state, local, and tribal 

governments, in the aggregate, or to the 

private sector, of $100 million or more 

in any one year. Before promulgating an 

EPA rule for which a written statement 

is needed, section 205 of the UMRA 

generally requires EPA to identify and 

consider a reasonable number of 

regulatory alternatives and to adopt the 

least costly, most cost-effective, or least 

burdensome alternative that achieves 

the objectives of the rule. The 

provisions of section 205 do not apply 

when they are inconsistent with 

applicable law. Moreover, section 205 

allows EPA to adopt an alternative other 

than the least costly, most cost-effective, 

or least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation of why such an 

alternative was adopted. 

Before EPA establishes any regulatory 

requirements that may significantly or 

uniquely affect small governments, 

including tribal governments, it must 

have developed a small government 

agency plan under section 203 of the 

UMRA. The plan must provide for the 

following: notifying potentially affected 

small governments, enabling officials of 

affected small governments to have 

meaningful and timely input in the 

development of EPA regulatory 

proposals with significant federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

This rule contains no federal 

mandates for state, local, or tribal 

governments as defined by the 

provisions of Title II of the UMRA. The 

rule imposes no enforceable duties on 

any of these governmental entities. 

Nothing in the rule would significantly 

or uniquely affect small governments. 

EPA has determined that this rule 

contains no federal mandates that may 

result in expenditures of more than 

$100 million to the private sector in any 

single year. The requirements of UMRA 

therefore do not apply to this action. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ are defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

Under Section 6 of Executive Order 

13132, EPA may not issue a regulation 

that has federalism implications, 

imposes substantial direct compliance 

costs, and is not required by statute. 

However, if the Federal government 

provides the funds necessary to pay the 

direct compliance costs incurred by 

State and local governments, or EPA 

consults with State and local officials 

early in the process of developing the 

regulation, these restrictions do not 

apply. EPA also may not issue a 

regulation that has federalism 

implications and that preempts State 

law, unless the Agency consults with 

State and local officials early in the 

process of developing the regulation. 

Section 4 of the Executive Order 

contains additional requirements for 

rules that preempt State or local law, 

even if those rules do not have 

federalism implications (i.e., the rules 

will not have substantial direct effects 

on the States, on the relationship 

between the national government and 

the states, or on the distribution of 

power and responsibilities among the 

various levels of government). Those 

requirements include providing all 

affected State and local officials notice 

and an opportunity for appropriate 

participation in the development of the 

regulation. If the preemption is not 

based on express or implied statutory 

authority, EPA also must consult, to the 

extent practicable, with appropriate 

State and local officials regarding the 

conflict between State law and 

Federally protected interests within the 

agency’s area of regulatory 

responsibility. 

This rule does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. Although 

Section 6 of Executive Order 13132 did 

not apply to the Highway Rule (66 FR 

5002) or the Nonroad Rule (69 FR 

38958), EPA did consult with 

representatives from STAPPA/ALAPCO, 

which represents state and local air 

pollution officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (59 FR 

22951, November 6, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ ‘‘Policies that have tribal 

implications’’ is defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects on 

one or more Indian tribes, on the 

relationship between the Federal 

government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian tribes.’’

This rule does not have tribal 

implications. It will not have substantial 

direct effects on tribal governments, on 

the relationship between the Federal 

government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian tribes, as 

specified in Executive Order 13175. 

This rule does not uniquely affect the 

communities of Indian Tribal 

Governments. This rule does not have 

tribal implications and does not impose 

substantial direct compliance costs on 

Indian tribal governments. Thus, 

Executive Order 13175 does not apply 

to this rule. 

G. Executive Order 13045: Children’s 

Health Protection 

Executive Order 13045, ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997) applies to any rule that 

(1) is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

Section 5–501 of the Order directs the 

Agency to evaluate the environmental 

health or safety effects of the planned 

rule on children, and explain why the 

planned regulation is preferable to other 

potentially effective and reasonably 

feasible alternatives considered by the 

Agency. 

This rule is not subject to the 

Executive Order because it is not 

economically significant, and does not 

involve decisions on environmental 

health or safety risks that may 

disproportionately affect children. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001) because it is not likely to have 

a significant adverse effect on the 

Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 70509 

supply, distribution or use of energy. 

This direct final rule provides limited, 

temporary flexibility to entities in the 

highway diesel distribution system 

downstream of the refineries and import 

facilities. Other amendments contained 

in today’s action pertain to ensuring the 

enforceability of the highway diesel 

program. The remaining amendments in 

today’s final rule provide technical 

correction and clarification to the 

requirements under the highway diesel, 

the nonroad diesel, and the Tier 2 

gasoline programs. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

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

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless doing so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (such as materials 

specifications, test methods, sampling 

procedures, and business practices) that 

are developed or adopted by voluntary 

consensus standards bodies. NTTAA 

directs EPA to provide Congress, 

through OMB, explanations when the 

Agency decides not to use available and 

applicable voluntary consensus 

standards. 

This direct final rule does not involve 

technical standards. Thus, we have 

determined that the requirements of the 

NTTAA do not apply. 

J. Congressional Review Act 

The Congressional Review Act, 5 

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

Small Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to Congress and the 

Comptroller General of the United 

States. We will submit a report 

containing this rule and other required 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States before publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

become effective consistent with the 

DATES section above. 

VII. Statutory Provisions and Legal 

Requirements 

The statutory authority for this action 

comes from sections 211(c) and (i) of the 

Clean Air Act as amended 42 U.S.C. 

7545(c) and (i). This action is a 

rulemaking subject to the provisions of 

Clean Air Act section 307(d). See 42 

U.S.C. 7606(d)(1). Additional support 

for the procedural and enforcement 

related aspects of the rule comes from 

sections 144(a) and 301(a) of the Clean 

Air Act. 42 U.S.C. 7414(a) and 7601(a). 

List of Subjects in 40 CFR Part 80 

Environmental protections, Diesel 

fuel, Fuel additives, Gasoline, Motor 

vehicle Pollution, Penalties, 

Recordkeeping and reporting 

requirements. 

Dated: November 8, 2005. 

Stephen L. Johnson, 

Administrator. 

■ For the reasons set out in the 

preamble, title 40, chapter I, of the Code 

of Federal Regulations is amended and 

set forth below. 

PART 80—REGULATION OF FUELS 

AND FUEL ADDITIVES 

■ 1. The authority citation for part 80 

continues to read as follows: 

Authority: 42 U.S.C. 7414, 7545, and 

7601(a). 

■ 2. Section 80.215 is amended in 

paragraph (a)(2)(i) under the heading for 

‘‘Washington’’ by adding a new entry for 

‘‘Klickitat’’ in alphabetical order to read 

as follows: 

§ 80.215 What is the scope of the 

geographic phase-in program? 

(a) * * * 

(2) * * * 

(i) * * * 

* * * * * 

Washington 

* * * * * 

Klickitat 

* * * * * 

■ 3. Section 80.500 is amended by 

revising paragraphs (b) and (c) to read 

as follows: 

§ 80.500 What are the implementation 

dates for the motor vehicle diesel fuel sulfur 

control program? 

* * * * * 

(b) Implementation date for standards 

applicable to motor vehicle diesel fuel 

downstream of the refinery or importer. 

Except as provided in paragraphs (c) 

and (d) of this section, beginning 

September 1, 2006, the standards and 

requirements under § 80.520(a) shall 

apply to any motor vehicle diesel fuel 

at any downstream location. 

(c) Implementation date for standards 

applicable to motor vehicle diesel fuel 

at retail outlets and wholesale 

purchaser-consumer facilities. Except as 

provided in paragraph (d) of this 

section, beginning October 15, 2006, the 

standards and requirements under 

§ 80.520(a) shall apply to any motor 

vehicle diesel fuel at any retail outlet or 

wholesale purchaser-consumer facility. 

* * * * * 

■ 4. Section 80.502 is amended by 

revising paragraphs (b)(2), and (b)(4) to 

read as follows: 

§ 80.502 What definitions apply for 

purposes of this subpart? 

* * * * * 

(b) * * * 

* * * * * 

(2) A refinery or import facility may 

not be aggregated with facilities that 

receive fuel from other refineries or 

import facilities, either directly or 

indirectly. For example, a refinery may 

not be aggregated with a terminal that 

receives any fuel from a common carrier 

pipeline. However, a refinery may be 

aggregated with a pipeline and terminal 

that are owned by the same entity and 

which receive no fuel from any source 

other than the refinery. Likewise, a 

refinery may not be aggregated with a 

mobile facility that is also carrying 

another entity’s fuel; it may however be 

aggregated with a mobile facility that 

does not receive fuel from any source 

other than the refinery. If a refinery or 

import facility is aggregated with other 

facilities, then the aggregated facility is 

treated as a refinery or import facility. 

* * * * * 

(4) Mobile components and mobile 

facilities. (i) Where an entity maintains 

custody of diesel fuel in one or more 

mobile components (e.g., rail, barge, 

shipping, or trucking operations), the 

mobile components may be aggregated 

as a single facility. Mobile components 

may also be aggregated with a facility 

from which they receive fuel or a 

facility to which they deliver fuel. 

However, mobile components may not 

be aggregated with both a facility from 

which they receive fuel and a facility to 

which they deliver fuel. 

(ii) When an entity maintains title to, 

but not custody of, diesel fuel in one or 

more mobile components, the entity 

may treat the mobile component(s) as a 

facility under this paragraph (b), but 

only for the fuel to which the entity has 

title. In the event that title changes 

while a mobile component is in 

transport (but the fuel physically 

remains in the same mobile facility), the 

original entity that had title to the fuel 

continues to be responsible for the 

70510 Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 

designate and track requirements until 

custody of the fuel is transferred from 

the mobile facility. 

* * * * * 

§ 80.531 [Amended] 

■ 5. Section 80.531 is amended by 

removing and reserving paragraph 

(c)(2)(ii). 

■ 6. Section 80.533 is amended by 

revising paragraph (e)(2) to read as 

follows: 

§ 80.533 How does a refiner or importer 

apply for a motor vehicle or non-highway 

baseline? 

* * * * * 

(e) * * * 

(2) Under paragraph (c)(2)(ii) of this 

section, BNRLM equals the average 

annual volume of MVNRLM produced 

or imported from January 1, 2006 

through December 31, 2008, less BMV as 

determined in paragraph (d)(2) of this 

section. 

* * * * * 

■ 7. Section 80.580 is amended by 

revising paragraph (d) to read as 

follows: 

§ 80.580 What are the sampling and 

testing methods for sulfur? 

* * * * * 

(d) Adjustment factor for downstream 

test results. (1) An adjustment factor of 

negative two ppm sulfur shall be 

applied to the test results from any 

testing of motor vehicle diesel fuel or 

NRLM diesel fuel downstream of the 

refinery or import facility, to account for 

test variability, but only for testing of 

motor vehicle diesel fuel or NRLM 

diesel fuel identified as subject to the 15 

ppm sulfur standard of § 80.510(b) or 

§ 80.520(a)(1). 

(2) In addition to the adjustment 

factor provided in paragraph (d)(1) of 

this section, prior to September 1, 2006, 

an adjustment factor of negative 7 ppm 

shall be applied to the test results from 

any testing of motor vehicle diesel fuel 

downstream of the refinery or import 

facility, to facilitate the transition to 

ULSD fuel, but only for testing of motor 

vehicle diesel fuel identified as subject 

to the 15 ppm sulfur standard of 

§ 80.520(a)(1). 

(3) In addition to the adjustment 

factor provided in paragraph (d)(1) of 

this section, prior to October 15, 2006, 

an adjustment factor of negative 7 ppm 

shall be applied to the test results from 

any testing of motor vehicle diesel fuel 

at any retail outlet or wholesale 

purchaser-consumer facility, to facilitate 

the transition to ULSD fuel, but only for 

testing of motor vehicle diesel fuel 

identified as subject to the 15 ppm 

sulfur standard of § 80.520(a)(1). 

* * * * * 

■ 8. Section 80.590 is amended by 

revising paragraphs (a)(6)(i) and (d) to 

read as follows: 

§ 80.590 What are the product transfer 

document requirements for motor vehicle 

diesel fuel, NRLM diesel fuel, heating oil 

and other distillates? 

(a) * * * 

(6) * * * 

(i) The facility registration number of 

the transferor and transferee, for 

terminals and all parties upstream, 

under § 80.597, if any. 

* * * * * 

(d) Except for transfers to truck 

carriers, retailers or wholesale 

purchaser-consumers, product codes 

may be used to convey the information 

required under this section if such 

codes are clearly understood by each 

transferee. ‘‘15’’, ‘‘500’’, or ‘‘greater than 

500’’ or ‘‘>500’’ must appear clearly on 

the product transfer document, and may 

be contained in the product code. If the 

designation is included in the code: 

codes used to convey the statement in 

paragraphs (a)(7)(i) and (a)(7)(ii) of this 

section must contain the number ‘‘15’’, 

codes used to convey the statement in 

paragraphs (a)(7)(iii) and (a)(7)(iv) of 

this section must contain the number 

‘‘500’’; codes used to convey the 

statement in paragraph (a)(7)(v) of this 

section must contain the statement 

‘‘greater than 500’’ or ‘‘>500’’. If another 

letter, number, or symbol is being used 

to convey any of the statements in 

paragraphs (a)(7)(i), (a)(7)(ii), (a)(7)(iii), 

(a)(7)(iv), and/or (a)(7)(v) of this section, 

it must be clearly defined and denoted 

on the product transfer document. 

* * * * * 

■ 9. Section 80.592 is amended by 

revising paragraph (a)(2)(iii) to read as 

follows: 

§ 80.592 What records must be kept by 

entities in the motor vehicle diesel fuel and 

diesel fuel additive distribution systems? 

(a) * * * 

(2) * * * 

(iii) The results of the tests for sulfur 

content (including, where applicable, 

the test results with and without 

application of the adjustment factor 

under § 80.580(d)) and for cetane index 

or aromatics content (as applicable), and 

the volume of product in the storage 

tank or container from which the 

sample was taken. 

* * * * * 

■ 10. Section 80.593 is amended by 

revising paragraph (a)(7)(i) to read as 

follows: 

§ 80.593 What are the reporting 

requirements for refiners and importers of 

motor vehicle diesel fuel subject to 

temporary refiner relief standards? 

* * * * * 

(a) * * * 

(7) * * * 

(i) The batch number assigned using 

the batch numbering conventions under 

§ 80.65(d)(3) and the appropriate 

designation under § 80.598. 

* * * * * 

■ 11. Section 80.597 is amended by 

revising paragraph (c) and adding 

paragraph (d)(3) to read as follows: 

§ 80.597 What are the registration 

requirements? 

* * * * * 

(c) Entity registration. (1) Each entity 

as defined in § 80.502 that intends to 

deliver or receive custody of any of the 

following fuels from June 1, 2006 

through May 31, 2010 must register with 

EPA by December 31, 2005 or six 

months prior to commencement of 

producing, importing, or distributing 

any distillate subject to designation 

under § 80.598: 

(i) Fuel designated as 500 ppm sulfur 

MVNRLM diesel fuel under § 80.598 on 

which taxes have not been assessed 

pursuant to IRS code (26 CFR part 48). 

(ii) Fuel designated as 15 ppm sulfur 

MVNRLM diesel fuel under § 80.598 on 

which taxes have not been assessed 

pursuant to IRS code (26 CFR part 48). 

(iii) Fuel designated as NRLM diesel 

fuel under § 80.598 that is undyed 

pursuant to § 80.520. 

(2) Each entity as defined in § 80.502 

that intends to deliver or receive 

custody of any of the following fuels 

from June 1, 2007 through May 31, 2014 

must register with EPA by December 31, 

2005 or six months prior to 

commencement of producing, 

importing, or distributing any distillate 

subject to designation under § 80.598: 

(i) Fuel designated as 500 ppm sulfur 

MVNRLM diesel fuel under § 80.598 on 

which taxes have not been assessed 

pursuant to IRS code (26 CFR part 48). 

(ii) Fuel designated as NRLM diesel 

fuel under § 80.598 that is undyed 

pursuant to § 80.520. 

(iii) Fuel designated as heating oil 

under § 80.598 that is unmarked 

pursuant to § 80.510(d) through (f). 

(iv) Fuel designated as LM diesel fuel 

under § 80.598(a)(2)(iii) that is 

unmarked pursuant to § 80.510(e). 

(3) Registration shall be on forms 

prescribed by the Administrator, and 

shall include the name, business 

address, contact name, telephone 

number, e-mail address, and type of 

production, importation, or distribution 

activity or activities engaged in by the 

entity. 

Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 70511 

(4) Registration shall include the 

information required under paragraph 

(d) of this section for each facility 

owned or operated by the entity that 

delivers or receives custody of a fuel 

described in paragraphs (c)(1) and (c)(2) 

of this section. 

(d) * * * 

(3) Mobile facilities: 

(i) A description shall be provided in 

the registration detailing the types of 

mobile vessels that will likely be 

included and the nature of the 

operations. 

(ii) Entities may combine all mobile 

operations into one facility; or may split 

the operations by vessel, region, route, 

waterway, etc. and register separate 

mobile facilities for each. 

(iii) The specific vessels need not be 

identified in the registration, however 

information regarding specific vessel 

contracts shall be maintained by each 

registered entity for its mobile facilities, 

pursuant to § 80.602(d). 

* * * * * 

■ 12. Section 80.598 is amended by 

revising paragraph (b)(9)(vi) to read as 

follows: 

§ 80.598 What are the designation 

requirements for refiners, importers, and 

distributors? 

(b) * * * 

(9) * * * 

(vi) Batches or portions of batches 

received designated as 500 ppm sulfur 

NRLM diesel fuel may be re-designated 

as 500 ppm sulfur motor vehicle diesel 

fuel by a truck loading terminal only if 

the terminal maintains a neutral or 

positive balance at the end of each 

quarterly compliance period on their 

motor vehicle diesel fuel volume from 

June 1, 2006 as calculated in 

§ 80.599(b)(4). 

* * * * * 

■ 13. Section 80.599 is amended by 

revising the table in the introductory 

text in paragraph (a), the table in 

paragraph (a)(1), and by revising 

paragraphs (b)(4), (e)(2), and (e)(3) to 

read as follows: 

§ 80.599 How do I calculate volume 

balances for designation purposes? 

(a) * * * 

Beginning date of 

quarterly compliance 

period 

Ending date of 

quarterly compliance 

period 

June 1, 2006 ............. September 30, 2006. 

October 1, 2006 ........ December 31, 2006. 

January 1, 2007 ........ March 31, 2007. 

April 1, 2007 .............. May 31, 2007. 

June 1, 2007 ............. September 30, 2007. 

October 1, 2007 ........ December 31, 2007. 

January 1, 2008 ........ March 31, 2008. 

April 1, 2008 .............. June 30, 2008. 

Beginning date of 

quarterly compliance 

period 

Ending date of 

quarterly compliance 

period 

July 1, 2008 .............. September 30, 2008. 

October 1, 2008 ........ December 31, 2008. 

January 1, 2009 ........ March 31, 2009. 

April 1, 2009 .............. June 30, 2009. 

July 1, 2009 .............. September 30, 2009. 

October 1, 2009 ........ December 31, 2009. 

January 1, 2010 ........ March 31, 2010. 

April 1, 2010 .............. May 31, 2010. 

June 1, 2010 ............. September 30, 2010. 

(1) * * * 

Beginning date of 

annual compliance 

period 

Ending date of annual 

compliance period 

June 1, 2006 ............. May 31, 2007. 

June 1, 2007 ............. June 30, 2008. 

July 1, 2008 .............. June 30, 2009. 

July 1, 2009 .............. May 31, 2010. 

June 1, 2010 ............. June 30, 2011. 

July 1, 2011 .............. May 31, 2012. 

June 1, 2012 ............. June 30, 2013. 

July 1, 2013 .............. May 31, 2014. 

June 1, 2014 ............. June 30, 2015. 

* * * * * 

(b) * * * 

(4) The neutral or positive volume 

balance required for purposes of 

compliance with § 80.598(b)(9)(vi) and 

(b)(9)(vii)(A) means that the net balance 

of motor vehicle diesel fuel in inventory 

as of the end of the last day of the 

compliance period (MVNBE) must be 

greater than or equal to zero. MVNBE is 

defined by the following equation: 

MVNBE = MV15BINV + MV500BINV + 

SMVB 

Where: 

MV15BINV = the total volume of fuel 

designated as 15 ppm sulfur motor 

vehicle diesel fuel in inventory at 

the beginning of the program on 

June 1, 2006. 

MV500BINV = the total volume of fuel 

designated as 500 ppm sulfur motor 

vehicle diesel fuel in inventory at 

the beginning of the program on 

June 1, 2006. Any #2D 500 ppm 

sulfur MVNRLM in inventory at the 

beginning of the program on June 1, 

2006 may be designated as motor 

vehicle diesel fuel. 

SMVB = the sum of the balances for 

motor vehicle diesel fuel for the 

current compliance period and 

previous compliance periods. 

* * * * * 

(e) * * * 

(2) The volume of #2D 15 ppm sulfur 

motor vehicle delivered must meet the 

following requirement: 

(#2MV15O + #2MV15INVCHG) ≥ 0.8 * 

#2MV15I

Where: 

#2MV15O = the total volume of fuel 

delivered during the compliance 

period that is designated as #2D 15 

ppm sulfur motor vehicle diesel 

fuel. 

#2MV15INVCHG = the total volume of 

diesel fuel designated as #2D 15 

ppm sulfur motor vehicle diesel 

fuel in inventory at the end of the 

compliance period minus the total 

volume of #2D 15 ppm sulfur motor 

vehicle diesel fuel in inventory at 

the beginning of the compliance 

period, and accounting for any 

corrections in inventory due to 

volume swell or shrinkage, 

difference in measurement 

calibration between receiving and 

delivering meters, and similar 

matters, where corrections that 

increase inventory are defined as 

positive. 

#2MV15I = the total volume of fuel 

received during the compliance 

period that is designated as #2D 15 

ppm sulfur motor vehicle diesel 

fuel. 

(3) The volume of #2D 500 ppm sulfur 

motor vehicle diesel fuel delivered must 

meet the following requirement: 

#2MV500O ≤ #2MV500I ¥ 

#2MV500INVCHG + 0.2 * #2MV15I

Where: 

#2MV500O = the total volume of fuel 

delivered during the compliance 

period that is designated as #2D 500 

ppm sulfur motor vehicle diesel 

fuel. 

#2MV500I = the total volume of fuel 

received during the compliance 

period that is designated as #2D 500 

ppm sulfur motor vehicle diesel 

fuel. 

#2MV500INVCHG = the total volume of 

diesel fuel designated as #2D 500 

ppm sulfur motor vehicle diesel 

fuel in inventory at the end of the 

compliance period minus the total 

volume of #2D 500 ppm sulfur 

motor vehicle diesel fuel in 

inventory at the beginning of the 

compliance period, and accounting 

for any corrections in inventory due 

to volume swell or shrinkage, 

difference in measurement 

calibration between receiving and 

delivering meters, and similar 

matters, where corrections that 

increase inventory are defined as 

positive. 

* * * * * 

■ 14. Section 80.600 is amended by 

revising paragraphs (b)(1)(i) 

introductory text, (b)(1)(i)(C), 

(b)(1)(i)(D), (b)(3), (i), (j), (k), and (l), and 

adding paragraph (m) to read as follows: 

70512 Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 

§ 80.600 What records must be kept for 

purposes of the designate and track 

provisions? 

* * * * * 

(b) * * * 

(1) * * * 

(i) For each facility that receives or 

distributes #2D 15 ppm sulfur motor 

vehicle diesel fuel or #2D 500 ppm 

sulfur motor vehicle diesel fuel, records 

for each batch of diesel fuel with the 

following designations for which 

custody is received or delivered during 

the time period from June 1, 2006 

through May 31, 2007: 

* * * * * 

(C) #1D 500 ppm sulfur motor vehicle 

diesel fuel; 

(D) #2D 500 ppm sulfur motor vehicle 

diesel fuel; or 

* * * * * 

(3) Records that clearly and accurately 

identify the total volume in gallons of 

each designated fuel identified under 

paragraph (b)(1) of this section 

transferred over each of the compliance 

periods, and over the periods from June 

1, 2006 to the end of each compliance 

period. The records shall be maintained 

separately for each fuel designated 

under paragraph (b)(1) of this section, 

and for each EPA entity and facility 

registration number from whom the fuel 

was received or to whom it was 

delivered. For batches of fuel received 

from facilities without an EPA facility 

registration number, any batches of fuel 

received marked pursuant to § 80.510(d) 

or (f) shall be deemed designated as 

heating oil, any batches of fuel received 

marked pursuant to § 80.510(e) shall be 

deemed designated as heating oil or LM 

diesel fuel, any batches of fuel received 

on which taxes have been paid pursuant 

to Section 4082 of the Internal Revenue 

Code (26 U.S.C. 4082) shall be deemed 

designated as motor vehicle diesel fuel, 

any 500 ppm sulfur diesel fuel dyed 

pursuant to § 80.520(b) and not marked 

pursuant to § 80.510(d) or (f) shall be 

deemed designated as NRLM diesel fuel, 

and any diesel fuel with less than or 

equal to 500 ppm sulfur which is dyed 

pursuant to § 80.520(b) and not marked 

pursuant to § 80.510(e) shall be deemed 

to be NR diesel fuel. 

* * * * * 

(i) Additional records that must be 

kept by mobile facilities. Additional 

records that must be kept by mobile 

facilities. Any registered mobile facility 

must keep records of all contracts from 

any contracted components (e.g. tank 

truck, barge, marine tanker, rail car, etc.) 

in each of its registered mobile facilities. 

(j) The records required in this section 

must be made available to the 

Administrator or the Administrator’s 

designated representative upon request. 

(k) Notwithstanding the provisions of 

this section, product transfer documents 

must be maintained under the 

provisions of §§ 80.590, 80.592, and 

80.602. 

(l) The records required in this section 

must be kept for five years after they are 

required to be collected. 

(m) Identifications of fuel 

designations can be limited to a subdesignation that accurately identifies 

the fuel and do not need to also include 

the broader designation. For example, 

NR diesel fuel does not also need to be 

designated as NRLM or MVNRLM diesel 

fuel. 

■ 15. Section 80.601 is amended as 

follows: 

■ a. By revising paragraphs (a) 

introductory text, (a)(1), (a)(2), and 

(a)(4)(v). 

■ b. By revising paragraph (b) 

introductory text. 

■ c. And by revising paragraph (d) 

introductory text, (d)(1)(i) through (iv), 

adding paragraphs (d)(1)(v), (d)(1)(vi), 

and (d)(1)(vii), and revising paragraph 

(d)(3) to read as follows. 

§ 80.601 What are the reporting 

requirements for purposes of the designate 

and track provisions? 

(a) Quarterly compliance period 

reports. Beginning February 28, 2007 

and continuing through August 31, 

2010, each entity required to maintain 

records under § 80.600 must report the 

following information separately for 

each of its facilities to the Administrator 

as specified in paragraph (d)(1) of this 

section except as provided in paragraph 

(e) of this section. 

(l) Separately for each fuel 

designation category specified in 

paragraphs (a)(1)(i) and (a)(1)(ii) of this 

section and separately for each 

transferee facility, the total volume in 

gallons of distillate fuel designated 

under § 80.598 for which custody was 

delivered by the reporting facility to any 

other entity or facility, and the EPA 

entity and facility registration 

number(s), as applicable, of the 

transferee. 

(i) Beginning with the first 

compliance period and continuing up to 

and including the compliance period 

that starts April 1, 2007, fuel designated 

as 15 ppm or 500 ppm motor vehicle 

diesel fuel. 

(ii) Beginning with the compliance 

period that starts June 1, 2007 and 

continuing up to and including the final 

reporting period, all fuel designation 

categories. 

(2) Separately for each designation 

category specified in paragraphs (a)(2)(i) 

and (a)(2)(ii) of this section and 

separately for each transferor facility, 

the total volume in gallons of distillate 

fuel designated under § 80.598 for 

which custody was received by the 

reporting facility, and the EPA entity 

and facility registration number(s), as 

applicable, of the transferor. 

(i) Beginning with the first 

compliance period and continuing up to 

and including the compliance period 

that starts April 1, 2007, fuel designated 

as 15 ppm or 500 ppm motor vehicle 

diesel fuel. 

(ii) Beginning with the compliance 

period that starts June 1, 2007 and 

continuing up to and including the final 

reporting period, all fuel designation 

categories. 

* * * * * 

(4) * * *

(v) Beginning with the compliance 

period starting June 1, 2007, the volume 

balance under § 80.599(c)(2) and 

§ 80.598(b)(9)(viii)(A). 

* * * * * 

(b) Annual reports. Beginning August 

31, 2007, all entities required to 

maintain records for batches of fuel 

under § 80.600 must report the 

following information separately for 

each of its facilities to the Administrator 

on an annual basis, as specified in 

paragraph (d)(2) of this section except as 

provided in paragraph (e) of this 

section. 

* * * * * 

(d) Submission of reports for quarterly 

and annual compliance periods. 

(1) * * * 

(i) The reports for the first and second 

quarterly compliance periods covering 

June 1, 2006 to September 30, 2006 and 

October 1, 2006 to December 31, 2006 

respectively shall be submitted by 

February 28, 2007. 

(ii) The reports for the third and 

fourth quarterly compliance periods 

covering January 1, 2007 to March 31, 

2007 and April 1, 2007 to May 31, 2007 

respectively shall be submitted by 

August 31, 2007. 

(iii) The report for the fifth quarterly 

compliance period covering June 1, 

2007 to September 30, 2007 shall be 

submitted by November 30, 2007. 

(iv) The report for the sixth quarterly 

compliance period covering October 1, 

2007 to December 31, 2007 shall be 

submitted by February 28, 2008. 

(v) The reports for the quarterly 

compliance periods beginning with the 

first period in 2008 up to and including 

the first period in 2010 shall be 

submitted as follows: 

(A) The report for the period covering 

January 1 to March 31 shall be 

submitted by the following May 31. 

Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 70513 

(B) The report covering the period 

covering April 1 to June 30 shall be 

submitted by the following August 31. 

(C) The report for the period from July 

1 to September 30 shall be submitted by 

the following November 30. 

(D) The report for the quarterly 

compliance period from October 1 to 

December 31 shall be submitted by the 

following February 28. 

(vi) The report for the quarterly 

compliance period from April 1, 2010 to 

May 31, 2010 shall be submitted by 

August 31, 2010. 

(vii) The report for the last quarterly 

compliance period from June 1, 2010 to 

September 30, 2010 shall be submitted 

by November 30, 2010. 

* * * * * 

(3) All reports shall be submitted on 

forms and following procedures 

specified by the Administrator, shall 

include a statement that volumes 

reported to the Administrator under this 

section are in substantial agreement to 

volumes reported to the Internal 

Revenue Service (and if these volumes 

are not in substantial agreement, an 

explanation must be included) and shall 

be signed and certified by a responsible 

corporate officer of the reporting entity. 

* * * * * 

■ 16. Section 80.602 is amended by 

revising paragraphs (a)(2)(iii), (b) 

introductory text, (d), and (e), and 

adding paragraph (f) to read as follows: 

§ 80.602 What records must be kept by 

entities in the NRLM diesel fuel and diesel 

fuel additive production, importation, and 

distribution systems? 

(a) * * * 

(2) * * * 

(iii) The results of the tests for sulfur 

content (including, where applicable, 

the test results with and without 

application of the adjustment factor 

under § 80.580(d)), for cetane index or 

aromatics content, dye solvent red 164, 

marker solvent yellow 124 (as 

applicable), and the volume of product 

in the storage tank or container from 

which the sample was taken. 

* * * * * 

(b) Additional records to be kept by 

refiners and importers of NRLM diesel 

fuel. Beginning June 1, 2007, or June 1, 

2006, pursuant to the provisions of 

§ 80.535 or § 80.554(d), any refiner 

producing diesel fuel subject to a sulfur 

standard under § 80.510, § 80.513, 

§ 80.536, § 80.554, § 80.560, or § 80.561, 

for each of its refineries, and any 

importer importing such diesel fuel 

separately for each facility, shall keep 

records that include the following 

information for each batch of NRLM 

diesel fuel or heating oil produced or 

imported: 

* * * * * 

(d) Additional records that must be 

kept by mobile facilities. Any registered 

mobile facility must keep records of all 

contracts from any contracted 

components (e.g. tank truck, barge, 

marine tanker, rail car, etc.) of each of 

its registered mobile facilities. 

(e) Length of time records must be 

kept. The records required in this 

section shall be kept for five years from 

the date they were created, except that 

records relating to credit transfers shall 

be kept by the transferor for five years 

from the date the credits were 

transferred, and shall be kept by the 

transferee for five years from the date 

the credits were transferred, used or 

terminated, whichever is later. 

(f) Make records available to EPA. On 

request by EPA, the records required in 

this section must be made available to 

the Administrator or the Administrator’s 

representative. For records that are 

electronically generated or maintained, 

the equipment and software necessary 

to read the records shall be made 

available, or if requested by EPA, 

electronic records shall be converted to 

paper documents which shall be 

provided to the Administrator’s 

authorized representative. 

[FR Doc. 05–22807 Filed 11–21–05; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 146 

[FRL–7999–7] 

Underground Injection Control 

Program—Revision to the Federal 

Underground Injection Control 

Requirements for Class I Municipal 

Disposal Wells in Florida 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: Today’s rule amends the 

current Federal Underground Injection 

Control (UIC) requirements by providing 

a regulatory alternative to owners and 

operators of Class I municipal disposal 

wells in specific areas of Florida that 

have caused or may cause movement of 

fluid into an Underground Source of 

Drinking Water (USDW). Because 

operation of Class I wells with fluid 

movement into a USDW is prohibited by 

Federal UIC regulations, this new rule 

offers owners and operators of 

municipal disposal wells in certain 

counties in Florida the ability to 

continue to operate their wells provided 

they meet additional wastewater 

treatment requirements. These new 

treatment requirements, which apply 

only to injection operations in certain 

counties of Florida, are designed to 

provide an equivalent level of 

protection to USDWs that is afforded by 

the no-fluid-movement standard. 

DATES: This regulation is effective 

December 22, 2005. For purposes of 

judicial review, this final rule is 

promulgated as of 1 p.m., Eastern time 

on December 6, 2005, as provided in 40 

CFR 23.7. 

ADDRESSES: The official public docket 

for this rule is located at the U.S. 

Environmental Protection Agency 

(EPA), Region 4 Library (9th Floor), Sam 

Nunn Atlanta Federal Center, 61 

Forsyth Street, SW., Atlanta, GA 30303–

8960. The docket is available for 

inspection from 8 a.m. to 3:30 p.m., 

Eastern time, Monday through Friday, 

excluding legal holidays. For 

information on how to access Docket 

materials, please call (404) 562–8190 

and refer to the Florida UIC docket. 

FOR FURTHER INFORMATION CONTACT: For 

technical inquiries, contact Nancy H. 

Marsh, Ground Water & UIC Section, 

U.S. EPA Region 4, 61 Forsyth Street, 

SW., Atlanta, GA 30303–8960 (phone: 

404–562–9450; E-mail: 

marsh.nancy@epa.gov) or Lee 

Whitehurst, Office of Ground Water and 

Drinking Water, U.S. EPA, EPA East, 

1200 Pennsylvania Avenue, 

NW.,Washington, DC 20460 (phone: 

202–564–3896; E-mail: 

whitehurst.lee@epa.gov). For general 

information, contact the Safe Drinking 

Water Hotline, at 800–426–4791. The 

Safe Drinking Water Hotline is open 

Monday through Friday, excluding legal 

holidays, from 9 a.m. to 5 p.m., Eastern 

time. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. General Information 

A. Who Are Regulated Entities? 

B. Abbreviations and Acronyms Used in 

the Preamble and Final Rule 

II. Background 

A. Why Is EPA Taking This Regulatory 

Action? 

B. Statutory and Regulatory Framework 

C. Requirements To Prevent Fluid 

Movement 

D. Domestic Wastewater Disposal in 

Florida Through Class I Wells 

E. July 7, 2000 Proposed Rule 

1. Option 1: Advanced Wastewater 

Treatment (AWT) with a Nonendangerment Demonstration. 

2. Option 2: In-depth Hydrogeologic 

Demonstration and Advanced Treatment, 

as Necessary