[Federal Register: May 11, 2010 (Volume 75, Number 90)]
[Rules and Regulations]
[Page 26121-26131]
[DOCID:fr11my10-14]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[EPA-HQ-OAR-2007-1158; FRL-9147-4]
RIN 2060-AO71

Regulation of Fuels and Fuel Additives: Alternative Affirmative
Defense Requirements for Ultra-Low Sulfur Diesel and Gasoline Benzene
Technical Amendment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is issuing a direct final rule to amend the diesel sulfur
regulations to allow refiners, importers, distributors, and retailers
of highway diesel fuel the option to use an alternative affirmative
defense if the Agency finds highway diesel fuel samples above the
specified sulfur standard at retail facilities. This alternative
defense consists of a comprehensive program of quality assurance
sampling and testing that would cover all participating companies that
produce and/or distribute highway diesel fuel if certain other
conditions are met. The sampling and testing program would be carried
out by an independent surveyor. The program would be conducted pursuant
to a survey plan approved by EPA that is designed to achieve the same
objectives as the current regulatory quality assurance requirement.
This rule also amends the gasoline benzene regulations to allow
disqualified small refiners the same opportunity to generate gasoline
benzene credits as that afforded to non-small refiners.

DATES: This rule is effective on July 12, 2010 without further notice,
unless EPA receives adverse comment by June 10, 2010. If EPA receives
adverse comment, we will publish a timely withdrawal in the Federal
Register informing the public that this rule, or the relevant
provisions of this rule, will not take effect. The incorporation by
reference of a certain publication listed in the regulations is
approved by the Director of the Federal Register as of July 12, 2010.
    Hearings: If EPA receives a request from a person wishing to speak
at a public hearing by May 26, 2010, a public hearing will be held at a
time and location to be announced in a subsequent Federal Register
notice. To request to speak at a public hearing, send a request to the
contact in FOR FURTHER INFORMATION CONTACT.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2007-1158, by one of the following methods:
     http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.
     Mail: Air and Radiation Docket, Environmental Protection
Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC
20460.
     Hand Delivery: EPA Docket Center, Room 3334, EPA West
Building, 1301 Constitution Avenue, NW., Washington, DC, Attention Air
Docket ID No. EPA-HQ-OAR-2007-1158. Such deliveries are only accepted
during the Docket's normal hours of operation, and special arrangements
should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2007-1158. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will
automatically be captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.gov/
epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air Docket, EPA/DC, EPA
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is<PHONE_NUMBER>, and the telephone number for the Air
Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Jaimee Dong, Compliance and Innovative
Strategies Division, Office of Transportation and Air Quality, Office
of Air and Radiation, Environmental Protection Agency, Mail Code 6405J,
1200 Pennsylvania Avenue, Washington, DC 20460; telephone number: (202)
343-9672; fax number:<PHONE_NUMBER>; e-mail address:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Why is EPA using a direct final rule?

    EPA is publishing this rule without a prior proposed rule because
we view this as a noncontroversial action and anticipate no adverse
comment. However, in the ``Proposed Rules'' section of today's Federal
Register, we are publishing a separate document that will serve as the
proposed rule to amend the diesel sulfur regulations and the gasoline
benzene regulations if adverse comments are received on this direct
final rule. We do not intend to institute a second comment period on
this action. Any parties interested in commenting must do so at this
time. For further information about commenting on this rule, see the
ADDRESSES section of this document.
    If EPA receives adverse comment on a distinct provision of this
rulemaking, we will publish a timely withdrawal in the Federal Register
indicating which provisions we are withdrawing. The provisions that are
not withdrawn will become effective on the date set out above,
notwithstanding adverse comment on any other provision. We will address
all public comments in any subsequent final rule based on the proposed
rule.

Does this action apply to me?

    Entities potentially affected by this action include those involved
with the production, importation, distribution, marketing, or retailing
of diesel fuel and production of gasoline. Categories and entities
affected by this action include:

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                                                  NAICS codes                        Examples of potentially
                   Category                           \a\        SIC codes \b\         regulated entities
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Industry......................................          324110            2911  Petroleum Refiners.
Industry......................................          422710            5171  Diesel Fuel Marketers and
                                                                                Distributors.
Industry......................................          484220            4212  Diesel Fuel Carriers.
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\a\ North American Industry Classification System (NAICS).
\b\ Standard Industrial Classification (SIC) system code.

    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action; however, other types of entities not listed in the table could
also be affected. To determine whether your entity is affected by this
action, you should examine the applicability criteria of parts 79 and
80 of title 40 of the Code of Federal Regulations. If you have any
question regarding applicability of this action to a particular entity,
consult the person in the preceding FOR FURTHER INFORMATION CONTACT
section.

What should I consider as I prepare my comments for EPA?

    A. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or e-mail. Clearly mark the information that
you claim to be CBI. For CBI information on a disk or CD ROM that you
mail to EPA, mark the outside of the disk or CD ROM as CBI and then
identify electronically within the disk or CD ROM the specific
information that is claimed as CBI. In addition to one complete version
of the comment that includes information claimed as CBI, a copy of the
comment that does not contain the information claimed as CBI must be
submitted for inclusion in the public docket. Information marked as CBI
will not be disclosed except in accordance with procedures set forth in
40 CFR part 2.
    B. Tips for Preparing Your Comments. When submitting comments,
remember to:
     Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
     Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
     Describe any assumptions and provide any technical
information and/or data that you used.
     If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
     Provide specific examples to illustrate your concerns, and
suggest alternatives.
     Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
     Make sure to submit your comments by the comment period
deadline identified.
    C. Docket Copying Costs. You may be charged a reasonable fee for
photocopying docket materials, as provided by 40 CFR part 2.

Outline of This Preamble

I. Background
II. Need for Action
III. This Action
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
    H. Executive Order 13211: Acts that Significantly Affect Energy
Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations.
    K. Congressional Review Act
    L. Clean Air Act Section 307(d)
V. Statutory Provisions and Legal Authority

I. Background

    The diesel sulfur regulations were designed to ensure widespread
availability of highway diesel fuel containing 15 parts per million
(ppm) sulfur or less by October 2006. Almost all highway diesel engines
produced beginning in 2007 will be equipped with emissions control
systems that are sensitive to sulfur. These vehicles should be fueled
with diesel fuel produced to contain no more than 15 ppm sulfur (called
Ultra-Low Sulfur Diesel or ULSD highway diesel fuel) in order for the
emissions control systems to function properly, and to prevent damage
to the emissions control systems.
    The diesel sulfur regulations require refiners, importers,
distributors and retailers who produce, import, sell, store or
transport ULSD highway diesel fuel to meet the standards specified in
the diesel sulfur regulations. Where a violation of the standards is
identified at a retail outlet, the retailer responsible for dispensing
the noncompliant fuel is deemed liable, as well as the refiner(s),
importer(s) and distributor(s) of such fuel. See 40 CFR 80.612(a). In
addition, where the corporate, trade or brand name of a refiner appears
at a retail outlet found to be in violation, that branded refiner is
also deemed liable for the violation. See 40 CFR 80.612(a)(3).
    The diesel sulfur regulations further provide, however, that any
person deemed liable can rebut this presumption by establishing an
affirmative defense that includes, among other things, showing that it
conducted a quality assurance sampling and testing program as
prescribed by the regulations. See 40 CFR 80.613(a)(1) and 40 CFR
80.613(d). Branded refiners and importers are not liable if they can
establish, among other things, that the violation was caused by the
action of a third-party distributor or retailer who violated product
handling procedures that were contractually required by the refiner,
despite periodic sampling and testing to ensure compliance with the
contractual obligation.

II. Need for Action

    EPA received questions from several large branded refiners of ULSD
highway diesel fuel regarding how EPA would enforce violations of the
downstream sulfur standard in instances where a ULSD highway diesel
fuel sample test result exceeded the downstream standard by an amount
less than the 2

ppm adjustment factor.\1\ These questions led to discussions between
EPA and the refiners about establishing an optional nationwide sampling
and testing program in which refiners could participate to satisfy the
affirmative defense requirements under Sec.  80.613. This program,
which would be generally modeled on the reformulated gasoline (RFG)
survey program set forth in 40 CFR 80.68, would be conducted by an
independent survey organization following a survey plan approved
annually by EPA, and funded by a consortium of refiners, importers and
distributors.
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    \1\ The diesel sulfur regulations at Sec.  80.580(d) provide for
an adjustment factor to be subtracted from test results for samples
taken downstream of the refinery gate, to account for test
variability. The adjustment factor was 3 ppm prior to October 15,
2008, and is now 2 ppm as of October 15, 2008. Thus, ULSD highway
diesel fuel downstream of the refinery gate would be deemed to be
compliant beginning October 15, 2008 if a test result showed it
contained no more than 17 ppm sulfur. For ease of reference, this
preamble uses the term ``downstream sulfur standard'' to refer to
the 15 ppm standard plus the adjustment factor, i.e. 17 ppm,
beginning October 15, 2008. The term ULSD means diesel fuel subject
to the 15 ppm standard applicable at the refinery gate, and subject
to the downstream sulfur standard of 15 ppm plus the 2 ppm
adjustment factor.
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    For the reasons discussed below, EPA believes it is appropriate to
provide branded refiners or importers who sell ULSD highway diesel fuel
at retail stations with an alternative means of meeting the affirmative
defense requirements in Sec.  80.613. We also believe it is appropriate
to provide this alternative to unbranded refiners and importers, as
well as distributors and retailers. As a result, this rule amends the
diesel sulfur regulations to provide an optional alternative means of
meeting the defense requirements in Sec.  80.613, which will be
available to any refiner, importer, distributor or retailer of ULSD
highway diesel fuel.
    We believe that the use of the new alternative quality assurance
compliance program will result in a quality assurance program
equivalent to that currently required under the diesel sulfur
regulations. The provisions in this rule are equivalent to those in an
existing program that was implemented by EPA's Office of Enforcement
and Compliance Assurance in October, 2006 through enforcement
discretion, and which has efficiently provided significant amounts of
statistically valid information on a nationwide basis. Sampling results
from the program (aggregated on a quarterly basis) are available on the
Web site of the Clean Diesel Fuel Alliance at http://www.clean-
diesel.org/pump_survey.html. This rule will not have any adverse
environmental impact and will provide refiners, importers and
distributors additional flexibility in complying with the diesel sulfur
regulations.

III. This Action

    This action provides refiners, importers, distributors and
retailers of ULSD highway diesel fuel the option of an alternative
defense to liability that consists in part of a nationwide program of
sampling and testing designed to provide oversight of all retail
stations that sell ULSD highway diesel fuel. Under this option, a
refiner, importer, distributor or retailer must participate in an
organization that arranges to have an independent surveyor conduct a
program of compliance surveys pursuant to a survey plan designed to
achieve the same quality assurance objectives as the current regulatory
requirement. A detailed survey plan must be submitted to EPA for
approval by November 1 of the year preceding the year in which the
alternative quality assurance sampling and testing program would be
implemented. The survey plan must include a methodology for determining
when the survey samples will be collected, the locations of the retail
outlets where the samples will be collected, the number of samples to
be included in the survey, and any other elements that EPA determines
are necessary to achieve the same level of quality assurance as the
current requirement.
    Under this alternative quality assurance program, the independent
surveyor is required to collect samples of ULSD highway diesel fuel at
retail stations and have the samples tested for sulfur content. This
nationwide sampling and testing program would be designed to ensure
comprehensive geographic coverage of regulated highway diesel fuel sold
at retail outlets, would provide proportionate coverage of such fuel in
three sampling strata, and would be done in accordance with the
provisions in 40 CFR 80.580. These three strata generally refer to: (1)
Densely populated areas, which include Metropolitan Statistical Areas
and the reformulated gasoline control areas; (2) transportation
corridors, which are based on interstate highways outside the densely
populated areas. Transportation corridors include areas immediately
adjacent to the highways themselves and a swath within several miles on
each side of the highway. For any given survey, a certain length of any
specific highway may be deemed appropriate as a sampling unit or
cluster; (3) rural areas, which include all areas not included in the
previous two strata. These areas are subdivided into clusters,
generally based on groupings of counties. The specific criteria used
for selecting sampling areas for each survey plan is subject to EPA
approval.
    The surveyor would generate and report summary sulfur content
statistics to EPA each calendar quarter. In addition, where the survey
finds noncompliant samples of ULSD highway diesel fuel, the liable
parties would be responsible for identifying and addressing the root
cause of the violation to prevent future violations.
    EPA recognizes that any alternative quality assurance program must
result in the same level of consistency in meeting the ULSD standard
for highway fuel as the current quality assurance requirements. A
sampling and testing program that accomplishes this must both
accurately estimate the proportion of retail stations that sell non-
compliant ULSD highway diesel fuel and provide a credible deterrent to
deliberate or inadvertent violations of downstream enforcement
standards.
    While not mutually exclusive, the two overall objectives differ
significantly in how an adequate number of samples for an alternative
quality assurance program is calculated. The amount of sampling needed
to satisfy either objective depends on a number of considerations which
pose separate difficulties for the two objectives. On the one hand, the
amount needed to estimate the proportion of retail stations that sell
non-compliant ULSD highway diesel fuel varies as a function of the
expected underlying proportion of stations selling non-compliant fuel,
the proportion of stations needed to be non-compliant to determine that
fuel is non-compliant, the selected confidence level, and various
sample design parameters. Thus, arriving at the sampling requirement
for determining the proportion of retail stations that sell non-
compliant ULSD highway diesel relies on determining tolerable levels of
non-compliance and confidence that would provide a suitable degree of
accuracy.
    On the other hand, the amount of sampling needed to maintain
adequate deterrence rests on sound judgment by experienced field
enforcement personnel based on the attractiveness/profitability of
deliberate violations, the likelihood of inadvertent violations, the
nature of penalty policies, and the speed with which information about
enforcement actions and their outcomes is disseminated throughout the
regulated community. Therefore, deciding how much sampling is needed
for effective deterrence is a less deterministic process.

    For the reasons discussed above, no single statistical formula can
be used exclusively to determine the size of an acceptable sampling
program if both objectives are to be met. The use of a rigorous survey
sampling methodology serves both principal objectives. For non-
compliance estimation purposes, the need for such statistical rigor is
necessary for an accurate measure of the proportion of retail stations
selling non-compliant ULSD highway diesel fuel. Another benefit from
the use of such methodology is that it makes the most efficient use of
limited resources by distributing sampling in a way that no regulated
party can be confident that it will not be sampled and tested.
    When a violation occurs, today's rule allows branded refiners that
participate in the consortium to establish a defense for themselves,
and also establish a defense for distributors and retailers that
operate under the branded refiners' trade or brand name under new
provisions in Sec.  80.613(e). Unbranded refiners and distributors that
do not operate under the trade or brand name of a refiner, as well as
distributors that operate under a refiner's trade or brand name but the
refiner has elected to not participate in the consortium, also may use
these new defense provisions by independently participating in the
consortium. In certain situations, a distributor's operations may be
partially under the brand name of a participating refiner and partially
under the brand name of a non-participating refiner or partially not
under the brand name of a refiner. Such distributors, if they seek to
use the alternative defense discussed here, must participate
independently in the consortium to meet their defense requirements
under Sec.  80.613(e) for their operations that are under the brand
name of a non-participating refiner, or operations not under the brand
name of a refiner.
    Where the survey association finds a sample of ULSD highway diesel
fuel that exceeds the downstream sulfur standard, participants in the
consortium have different requirements for establishing their defense
under Sec.  80.613(e), depending on the amount of the exceedance. For
exceedances of up to 2 ppm over the downstream standard, consortium
participants will be deemed to have met all of their defense
requirements under Sec.  80.613(e) provided they demonstrate to EPA
that diesel fuel last supplied to the retail station contained no more
than 15 ppm sulfur prior to subtracting the 2 ppm adjustment factor
when dispensed at the supplying terminal, and take several actions,
described in further detail below, to stop distribution of the
violating fuel, to determine why the violation occurred, and to provide
a report to EPA explaining how such violations will be avoided in the
future. However, for exceedances of more than 2 ppm over the downstream
standard, consortium participants must also meet additional defense
requirements as described in further detail below.
    EPA chose 2 ppm as a threshold based on past sulfur testing
experience in order to provide an incentive for regulated parties to
participate in the consortium while encouraging participants to take
appropriate steps to comply. Exceedances of more than 2 ppm over the
downstream standard indicate that a regulated party may not have taken
appropriate steps to comply, and that more analysis is required to
determine the cause of the exceedance. The exceedance threshold of 2
ppm is equal to the 2 ppm adjustment factor allowed for downstream
parties in the diesel sulfur regulations. Due to variability in sulfur
test methods, downstream parties are allowed to subtract 2 ppm from
their sulfur test result to determine compliance with the 15 ppm sulfur
standard, which means that a downstream sulfur test result of 17 ppm is
considered to be compliant with the 15 ppm sulfur standard. However, a
test variability of 2 ppm means actual sulfur content may also be 2 ppm
greater than the test result, so if diesel fuel containing 17 ppm
sulfur is tested twice for sulfur, one test result may be 15 ppm and
one test result may be 19 ppm. Thus, if a terminal has a sulfur test
result of 15 ppm for their diesel fuel prior to subtracting the 2 ppm
adjustment factor, it is possible for another party to test the same
diesel fuel and obtain a test result of 19 ppm. Requiring the supplying
terminal to demonstrate that their diesel fuel when tested contained no
more than 15 ppm sulfur prior to subtracting the 2 ppm adjustment
factor means that a retail test result of 19 ppm would show
noncompliance but would still be consistent with other test results
that show compliance under the regulations.
    When the survey association finds a sample of ULSD highway diesel
fuel which exceeds the downstream standard by 2 ppm or less, branded
refiners that participate in the consortium must take several actions
to meet all of their defense requirements under Sec.  80.613(e). These
include demonstrating to EPA that diesel fuel last supplied to the
retail station contained no more than 15 ppm sulfur when dispensed at
the supplying terminal, and that best efforts and accepted business
practices are used by downstream parties to avoid diesel fuel
contamination. Also, following notification to the branded refiner by
the survey association of the test result, appropriate steps must be
taken within 24 hours to ensure the diesel fuel is not dispensed into
motor vehicles until remedial action is taken to ensure the fuel sulfur
content is no greater than the applicable downstream standard. This
action may include either shutting down the pumps which supply the
diesel fuel, or placing new labels on the pumps stating they dispense
500 ppm highway diesel fuel rather than 15 ppm highway diesel fuel
(prior to June 1, 2010). Lastly, the branded refiner must submit a
report to EPA within 120 days of the exceedance, which explains the
circumstances and root cause of the exceedance and steps taken to
prevent distribution of noncompliant fuel, and lists actions that will
be taken to prevent future exceedances. The refiner must also provide
EPA with copies of contracts which include the procedures in place to
prevent contamination of ULSD highway diesel fuel. The survey
association must also retest ULSD highway diesel fuel dispensed at the
retail station during its next survey, in addition to its scheduled
sampling.
    Unbranded refiners, distributors and retailers that participate in
the consortium have slightly different requirements from branded
refiners for establishing their defense when the survey association
finds a retail sample which exceeds the downstream standard by 2 ppm or
less. Participating unbranded refiners will be deemed to have met all
of their affirmative defense requirements under Sec.  80.613(e) if they
carry out all of the actions listed previously for branded refiners
(except for providing EPA with copies of contracts that include
procedures in place to prevent contamination of ULSD highway diesel
fuel). Participating distributors and retailers will be deemed to have
met all of their defense requirements under Sec.  80.613(e) if they
carry out all of the actions listed previously for branded refiners
(except for providing EPA with copies of contracts that include
procedures in place to prevent contamination of ULSD highway diesel
fuel). Additionally, the retail outlet at which the sample was
collected must have had no previous instances of a tested sample of
ULSD highway diesel fuel exceeding the downstream standard for two
years prior to the exceedance. If a tested sample of ULSD highway
diesel fuel exceeded the downstream standard within the prior two
years, participating distributors and retailers must also meet

the defense elements under Sec.  80.613(a)(1)(i) and (ii), and Sec.
80.613(c).
    When the survey association finds a sample that exceeds the
downstream sulfur standard by more than 2 ppm, under Sec.  80.613(e)
branded refiners must carry out the actions listed previously for
branded refiners. In addition, such branded refiners must also meet the
defense elements in Sec.  80.613(b), such as showing they did not cause
the violation, or that the violation was caused by another person.
Similarly, under Sec.  80.613(e), unbranded refiners, distributors and
retailers must carry out all of the actions listed previously for
branded refiners (except for providing EPA with copies of contracts
that include procedures in place to prevent contamination of ULSD
highway diesel fuel). In addition, such distributors must also meet the
defense elements under Sec.  80.613(a)(1)(i) and (ii), and Sec.
80.613(c).
    Use of this alternative affirmative defense and participation in
this quality assurance program is optional, and refiners, importers,
distributors, and retailers may choose to conduct their own quality
assurance program as provided currently in the regulations instead of
participating in this nationwide program. A refiner that does not
participate in the consortium will continue to be subject to the
sampling and testing defense provisions under Sec.  80.613, as will
distributors that operate under such a refiner's trade or brand name
unless such a distributor independently participates in the consortium.
    Today's rule also makes one minor correction to the gasoline
benzene regulations clarifying when a small refiner who loses their
small refiner status may generate gasoline benzene credits.
Disqualified small refiners are allowed a grace period of up to 36
months after the date of the disqualifying event to begin meeting the
gasoline benzene standards applicable to non-small refiners. The
gasoline benzene regulations currently prohibit disqualified small
refiners from generating either early or standard gasoline benzene
credits at any of their refineries during this grace period. This
results in limitations on credit generation for disqualified small
refiners that are more stringent than limitations on credit generation
for non-small refiners, which was not EPA's intent. Today's rule amends
the gasoline benzene regulations at Sec.  80.1339(e)(4) to allow
disqualified small refiners the same opportunity to generate gasoline
benzene credits during the grace period as that afforded to non-small
refiners.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action.'' Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under EO 12866 and any changes made in response to OMB
recommendations have been documented in the docket for this action.

B. Paperwork Reduction Act

    The information collection requirements in this direct final rule
have been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 2364.03.
    This direct final rule provides refiners, importers and
distributors of ULSD highway diesel fuel with additional flexibility to
comply with the diesel sulfur regulations. The flexibility afforded
under this rule is optional. Modest information collection requirements
in the form of reports for noncompliant diesel sulfur samples are
required for those parties who avail themselves of the flexibility
provided in this rule. The information under this rule will be
collected by EPA's Transportation and Regional Programs Division,
Office of Transportation and Air Quality, Office of Air and Radiation
(OAR), and by EPA's Air Enforcement Division, Office of Regulatory
Enforcement, Office of Enforcement and Compliance Assurance (OECA). The
information collected will be used by EPA to evaluate compliance with
the requirements under the diesel sulfur program. This oversight by EPA
is necessary to ensure attainment of the air quality goals of the
diesel sulfur program.
    The estimated hourly burden per respondent for the diesel surveys
is 16 hours. The estimated annual hourly burden is 320 hours for all
respondents (assuming 20 respondents per year). The estimated hourly
cost is $71 per hour. The total estimated cost per respondent is
$1,136. The total estimated cost for all respondents is $22,270. Burden
is defined at 5 CFR 1320.3(b).
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
    To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a public docket for
this rule, which includes this ICR, under Docket ID number EPA-HQ-OAR-
2007-1158. Submit any comments related to the ICR to EPA and OMB. See
ADDRESSES section at the beginning of this notice for where to submit
comments to EPA. Send comments to OMB at the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street,
NW., Washington, DC 20503, Attention: Desk Office for EPA. Comments
must be submitted on or before July 12, 2010.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
    After considering the economic impacts of today's final rule on
small entities, we certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities since the primary
purpose of the regulatory flexibility analyses is to identify and
address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small

entities if the rule relieves regulatory burden, or otherwise has a
positive economic effect on all of the small entities subject to the
rule.
    Today's final rule provides additional flexibility to refiners,
importers, and distributors of diesel fuel by amending the diesel
sulfur regulations to allow a voluntary nationwide sampling and testing
program to be used as an alternative means of meeting the sampling and
testing defense elements under 40 CFR 80.613. Participation in the
program should reduce regulatory burden on all participants. Any small
entities may choose whether or not to join the program. Today's rule
also amends the gasoline benzene regulations to allow disqualified
small refiners the same opportunity to generate gasoline benzene
credits as that afforded to non-small refiners. We have therefore
concluded that today's final rule will relieve the regulatory burden
for all affected small entities.

D. Unfunded Mandates Reform Act

    This rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year.
This rule provides refiners, distributors, and importers of diesel fuel
with additional flexibility in complying with regulatory requirements.
As a result, this rule will have the overall effect of reducing the
burden of the diesel sulfur regulations on these regulated parties.
These requirements also codify existing practices designed to ensure
that ULSD highway diesel fuel meets downstream standards. Today's rule
also amends the gasoline benzene regulations to allow disqualified
small refiners the same opportunity to generate gasoline benzene
credits as that afforded to non-small refiners, relieving burden on
small refiners. Thus, this rule is not subject to the requirements of
sections 202 or 205 of UMRA.
    This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. The action imposes
no enforceable duty on any State, local or tribal governments.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This rule provides refiners,
distributors, and importers of diesel fuel with additional flexibility
in complying with regulatory requirements. These requirements also
codify existing practices designed to ensure that ULSD highway diesel
fuel meets downstream standards. Today's rule also amends the gasoline
benzene regulations to allow disqualified small refiners the same
opportunity to generate gasoline benzene credits as that afforded to
non-small refiners. The requirements of the rule will be enforced by
the Federal government at the national level. Thus, Executive Order
13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule
applies to refiners, distributors, and importers of diesel fuel. This
action contains certain modifications to the federal requirements for
diesel sulfur, and will not impose any enforceable duties on
communities of Indian tribal governments. Today's rule also amends the
gasoline benzene regulations to allow disqualified small refiners the
same opportunity to generate gasoline benzene credits as that afforded
to non-small refiners, and will not impose any enforceable duties on
communities of Indian tribal governments. Thus, Executive Order 13175
does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it does not establish an environmental standard intended
to mitigate health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

    This rule is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)) because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Further, we have concluded that this
rule is not likely to have any adverse energy effects.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
    This rule does not involve technical standards. Therefore, EPA did
not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. This is a rule amendment that does not relax the control
measures on sources regulated by the rule and therefore will not cause
emissions increases from these sources.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a

report containing this rule and other required information to the U.S.
Senate, the U.S. House of Representatives, and the Comptroller General
of the United States prior to publication of the rule in the Federal
Register. A Major rule cannot take effect until 60 days after it is
published in the Federal Register. This action is not a ``major rule''
as defined by 5 U.S.C. 804(2). This rule will be effective July 12,
2010.

L. Clean Air Act Section 307(d)

    This rule is subject to Section 307(d) of the CAA. Section
307(d)(7)(B) provides that ``[o]nly an objection to a rule or procedure
which was raised with reasonable specificity during the period for
public comment (including any public hearing) may be raised during
judicial review.'' This section also provides a mechanism for the EPA
to convene a proceeding for reconsideration, ``[i]f the person raising
an objection can demonstrate to the EPA that it was impracticable to
raise such objection within [the period for public comment] or if the
grounds for such objection arose after the period for public comment
(but within the time specified for judicial review) and if such
objection is of central relevance to the outcome of the rule.'' Any
person seeking to make such a demonstration to the EPA should submit a
Petition for Reconsideration to the Office of the Administrator, U.S.
EPA, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460, with a copy to both the person(s) listed in the
preceding FOR FURTHER INFORMATION CONTACT section, and the Director of
the Air and Radiation Law Office, Office of General Counsel (Mail Code
2344A), U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20004.

V. Statutory Provisions and Legal Authority

    Regulation of Fuels and Fuel Additives: Alternative Affirmative
Defense Requirements for Ultra-low Sulfur Diesel and Gasoline Benzene
Technical Amendment.
    Statutory authority for the fuel controls set in this direct final
rule comes from sections 211 and 301(a) of the CAA.

List of Subjects in 40 CFR Part 80

    Environmental protection, Air pollution control, Fuel additives,
Diesel, Gasoline, Imports, Incorporation by reference, Labeling, Motor
vehicle pollution, Penalties, Reporting and recordkeeping requirements.

    Dated: May 3, 2010.
Lisa P. Jackson,
Administrator.

0
For the reasons set out in the preamble, part 80 Chapter I, title 40 of
the Code of Federal Regulations is amended as follows:

PART 80--REGULATION OF FUEL AND FUEL ADDITIVES

0
1. The authority citation for part 80 continues to read as follows:

    Authority:  42 U.S.C. 7414, 7542, 7545, and 7601(a).

0
2. Section 80.613 is amended by adding paragraph (e) to read as
follows:

Sec.  80.613  What defenses apply to persons deemed liable for a
violation of a prohibited act under this subpart?

* * * * *
    (e) Alternative defense requirements. A person deemed liable under
Sec.  80.612(a) for a violation of Sec.  80.610(a)(1), concerning
diesel fuel that is sold, offered for sale, or dispensed at a retail
outlet and that does not meet the applicable sulfur content standard
under Sec.  80.520(a)(1), as adjusted under Sec.  80.580(d), may comply
with the following alternative defense requirements in lieu of the
requirements in paragraphs (a) through (d) of this section to the
extent provided for, and subject to the conditions and limitations set
forth in this paragraph (e):
    (1) Independent survey association. To comply with the alternative
defense requirements under this paragraph (e), a person must
participate in the funding of a consortium which arranges to have an
independent survey association conduct a statistically valid program of
annual compliance surveys pursuant to a survey plan which has been
approved by EPA, in accordance with the requirements of paragraphs
(e)(2) through (e)(4) of this section.
    (2) General requirements. The consortium survey program under this
paragraph (e) must be:
    (i) Planned and conducted by an independent survey association that
meets the requirements in Sec.  80.68(c)(13)(i);
    (ii) Conducted at diesel fuel retail outlets nationwide; and
    (iii) Representative of all motor vehicle diesel fuel subject to
the 15 ppm sulfur standard under Sec.  80.520(a)(1) dispensed at diesel
fuel retail outlets nationwide.
    (3) Independent survey association requirements. The consortium
described in paragraph (e)(1) of this section shall require the
independent survey association conducting the surveys to:
    (i) Submit to EPA for approval each calendar year a proposed survey
plan in accordance with the requirements of paragraph (e)(4) of this
section.
    (ii) Obtain samples of motor vehicle diesel fuel subject to the 15
ppm sulfur standard under Sec.  80.520(a)(1) in accordance with the
survey plan approved under this paragraph (e), or immediately notify
EPA of any refusal of retail outlets to allow samples to be taken;
    (iii) Test, or arrange to be tested, the samples required under
paragraph (e)(3)(ii) of this section for sulfur content as follows--
    (A) Samples collected at retail outlets shall be shipped the same
day the samples are collected via overnight service to the laboratory,
and analyzed for sulfur content within twenty-four hours after receipt
of the sample in the laboratory.
    (B) Any laboratory to be used by the independent survey association
for sulfur testing shall be approved by EPA and its sulfur test method
shall comply with the provisions of Sec. Sec.  80.584, 80.585 and
80.586.
    (C) For purposes of the alternative defense requirements in this
paragraph (e), test results shall be rounded to a whole number using
ASTM E 29-02[egr]\1\, Standard Practice for Using Significant Digits in
Test Data to Determine Conformance with Specifications, rounding method
procedures. The Director of the Federal Register approved the
incorporation by reference of ASTM E 29-02[egr]\1\ as prescribed in 5
U.S.C. 552(a) and 1 CFR part 51. Anyone may purchase copies of this
standard from ASTM International, 100 Barr Harbor Dr., West
Conshohocken, PA 19428,<PHONE_NUMBER>. Anyone may inspect copies at
the U.S. EPA, EPA Docket Center, Room 3334, EPA West Building, 1301
Constitution Ave., NW., Washington, DC 20460,<PHONE_NUMBER>, or at the
National Archives and Records Administration (NARA). For information on
the availability of this material at NARA, call<PHONE_NUMBER>, or go to:
http://www.archives.gov/federal-register/cfr/ibr-locations.html.
    (iv) Provide notice of samples with sulfur content greater than the
15 ppm standard under Sec.  80.520(a)(1), as adjusted under Sec.
80.580(d), as follows:
    (A) In the case of any test result that is one or two ppm greater
than the 15 ppm standard under Sec.  80.520(a)(1), as adjusted under
Sec.  80.580(d), the independent survey association shall, within
twenty-four hours after the laboratory receives the sample, send
notification of the test result as follows: In the case of a sample
collected at a retail outlet at which the brand name of

a refiner or importer is displayed, to the refiner or importer, and
EPA; and in the case of a sample collected at other retail outlets, to
the retailer and EPA. This initial notification to a refiner shall
include specific information concerning the name and address of the
retail outlet, contact information, the brand, and the sulfur content
of the sample.
    (B) In the case of any test result that is three or more ppm
greater than the 15 ppm standard under Sec.  80.520(a)(1), as adjusted
under Sec.  80.580(d), or for a test result that is one or two ppm
greater than the 15 ppm standard under Sec.  80.520(a)(1), as adjusted
under Sec.  80.580(d), and the retail outlet has had an exceedance
within the previous two years, the independent survey association
shall, within the time limits specified in paragraph (e)(3)(iv)(A) of
this section, provide notice to the parties described in paragraph
(e)(3)(iv)(A) of this section. The notice to EPA must include the name
and address of the retail outlet, and the telephone number, if known.
    (C) The independent survey association shall provide notice to the
identified contact person or persons for each party specified in
paragraphs (e)(3)(iv)(A) and (B) of this section in writing (e.g. e-
mail or facsimile) and, if requested by the identified contact person,
by telephone.
    (v) Provide to EPA quarterly and annual summary survey reports
which include the information specified in paragraph (e)(8) of this
section.
    (vi) Maintain all records relating to the surveys conducted under
this paragraph (e) for a period of at least 5 years.
    (vii) At any time permit any representative of EPA to monitor the
conduct of the surveys, including sample collection, transportation,
storage, and analysis.
    (4) Survey plan design requirements. The proposed survey plan
required under paragraph (e)(3)(i) of this section shall, at a minimum,
include the following:
    (i) Number of surveys. The survey plan shall include four surveys
each calendar year. The four surveys collectively are called the survey
series.
    (ii) Sampling areas. The survey plan shall include sampling in
three types of areas, called sampling strata, during each survey:
Densely populated areas, transportation corridors and rural areas.
These sampling strata shall be further divided into discrete sampling
areas, or clusters. Each survey shall include sampling in at least 40
sampling areas in each stratum, randomly selected.
    (iii) No advance notice of surveys. The survey plan shall include
procedures to keep confidential from any regulated party, but not from
EPA, the identification of the sampling areas that are included in any
survey plan prior to the beginning of a survey in an area.
    (iv) Retail outlet selection.
    (A) The retail outlets to be sampled in a sampling area shall be
selected from among all retail outlets in the sampling area that sell
motor vehicle diesel fuel subject to the 15 ppm sulfur standard under
Sec.  80.520(a)(1), with probability of selection proportionate to the
volume of motor vehicle diesel fuel subject to the 15 ppm sulfur
standard under Sec.  80.520(a)(1) sold at the retail outlets, and
inclusion of retail outlets with different brand names and unbranded,
if possible.
    (B) In the case of any retail outlet from which a sample of motor
vehicle diesel fuel subject to the 15 ppm sulfur standard under Sec.
80.520(a)(1) was collected during a survey and determined to have a
sulfur content that exceeds the 15 ppm sulfur standard under Sec.
80.520(a)(1), as adjusted under Sec.  80.580(d), that retail outlet
shall be included in the subsequent survey.
    (C) Only a single sample shall be collected at each retail outlet,
except that where a retail outlet had a sample from the preceding
survey with a test result that exceeds the 15 ppm standard under Sec.
80.520(a)(1), as adjusted under Sec.  80.580(d), separate samples shall
be taken that represent the diesel fuel contained in each storage tank
containing motor vehicle diesel fuel subject to the 15 ppm sulfur
standard under Sec.  80.520(a)(1), unless collection of separate
samples is not practicable (for example, due to diesel piping
arrangements or pump outages).
    (v) Number of samples.
    (A) The minimum number of samples to be included in the survey plan
for each calendar year shall be calculated as follows:

[GRAPHIC] [TIFF OMITTED] TR11MY10.288

Where:

    n = minimum number of samples in a year-long survey series.
However, in no case shall n be larger than 9,600 or smaller than
5,250.
Z[alpha] = upper percentile point from the normal distribution to
achieve a one-tailed 95% confidence level (5% [alpha]-level). Thus,
Z[alpha] equals 1.645.
Z[beta] = upper percentile point to achieve 95% power. Thus, Z[beta]
equals 1.645.
[phis]l = the maximum proportion of stations selling non-compliant
fuel for the fuel in a region to be deemed compliant. In this test,
the parameter needs to be 5% or greater, i.e., 5% or more of the
stations, within a stratum such that the region is considered non-
compliant. For this survey, [phis]l will be 5%.
[phis]o = the underlying proportion of non-compliant stations in a
sample. For calendar year 2011, [phis]owill be 1.9%. For calendar
years 2012 and beyond, [phis]o will be the average of the proportion
of stations to be non-compliant over the previous four surveys.
Stn = number of sampling strata. For purposes of this
survey program, Stn equals 3.
Fa = adjustment factor for the number of extra samples
required to compensate for collected samples that cannot be included
in the survey, based on the number of additional samples required
during the previous four surveys. However, in no case shall the
value of Fa be smaller than 1.1. For purposes of this
adjustment factor, a sample shall be treated as one that can be
included in the survey only if the fuel was offered for sale as
motor vehicle diesel fuel subject to the 15 ppm sulfur standard
under Sec.  80.520(a)(1) at the retail outlet where the sample was
collected and if an appropriate laboratory analysis of this fuel is
conducted.
Fb = adjustment factor for the number of samples required
to resample each retail outlet with test results greater than 17 ppm
(resampling), based on the rate of resampling required during the
previous four surveys. However, in no case shall the value of
Fb be smaller than 1.1.
Sun = number of surveys per year. For purposes of this
survey program, Sun equals 4.

    (B) The number of samples obtained from the formula in paragraph
(e)(4)(v)(A) of this section, after being incremented as necessary to
allocate whole numbers of samples to each cluster, shall be distributed
approximately equally for the surveys conducted during the calendar
year. Within a survey, the samples shall be divided approximately
equally for the three strata.
    (5) Sulfur test result that is one or two ppm Greater than the 15
ppm standard under Sec.  80.520(a)(1), as adjusted under Sec.
80.580(d). The following provisions apply if the tested sulfur level of
a

diesel fuel sample collected by the independent survey association is
one or two ppm greater than the 15 ppm standard under Sec.
80.520(a)(1), as adjusted under Sec.  80.580(d).
    (i) Branded refiner or importer. Where the sample was collected at
a retail outlet at which the brand name of a refiner or importer is
displayed, the branded refiner or importer will be deemed to have
established its defense under this section, provided that the refiner
or importer participates in a consortium as described in paragraph
(e)(1) of this section, and provided that the refiner or importer also
demonstrates the following:
    (A) The sulfur content of the diesel fuel at the terminal(s) that
most recently supplied the retail outlet was no greater than 15 ppm
prior to adjustment under Sec.  80.580(d) when dispensed for delivery
to the retail outlet;
    (B) Best efforts and accepted business practices are used by
parties downstream from the refiner or importer to avoid diesel fuel
contamination. These would include, for example, procedures for
ensuring motor vehicle diesel fuel subject to the 15 ppm sulfur
standard under Sec.  80.520(a)(1) is not contaminated in delivery
trucks, and procedures for ensuring delivery truck drivers can identify
retail outlet drop points for motor vehicle diesel fuel subject to the
15 ppm sulfur standard under Sec.  80.520(a)(1).
    (C) Upon receiving the notification required under paragraph
(e)(3)(iv)(A) of this section, any pumps supplied by the retail storage
tank where the noncompliant diesel fuel was found were shutdown until
such time that the fuel at issue was retested and the sulfur content of
the fuel was found to be no greater than the 15 ppm standard under
Sec.  80.520(a)(1), as adjusted under Sec.  80.580(d). Prior to May 31,
2010, as an alternative to shutting down pumps supplied by the retail
storage tank where the noncompliant diesel fuel was found, such pumps
may be relabeled with the language required under Sec.  80.571(b). The
steps required in this paragraph (e)(5)(i)(C) must be taken as soon as
practicable after receiving the notification required under paragraph
(e)(3)(iv)(A) of this section, which normally will be within the same
business day, but no longer than twenty-four hours after notification
is received unless the refiner or importer demonstrates this timing is
not possible.
    (D) A root cause analysis is performed to determine the cause of
the noncompliant diesel fuel and appropriate actions are taken to
prevent future violations.
    (E) The independent survey association samples and retests the
diesel fuel at the retail outlet during its next survey, in addition to
the scheduled sampling and testing under the approved survey program.
    (F) The refiner or importer submits a report to EPA no later than
120 days following the date the sample was collected at the retail
outlet, which includes the information specified in paragraph (e)(7) of
this section.
    (G) The refiner or importer supplies EPA with copies of the
contracts with downstream parties specified in Sec.  80.613(b)(2) or
the specifications or inspections of procedures and equipment described
in Sec.  80.613(b)(3), as appropriate, which are designed to prevent
the contamination of motor vehicle diesel fuel subject to the 15 ppm
sulfur standard under Sec.  80.520(a)(1).
    (ii) Unbranded refiner or importer. Any unbranded refiner or
importer that is deemed liable under Sec.  80.612(a) for a violation of
Sec.  80.610(a)(1), concerning diesel fuel that is sold, offered for
sale, or dispensed at a retail outlet and that does not meet the
applicable sulfur content standard under Sec.  80.520(a)(1), as
adjusted under Sec.  80.580(d), will be deemed to have established its
defense under this section if the unbranded refiner or importer is a
member of the consortium described in paragraph (e)(1) of this section
and the refiner or importer meets the requirements of paragraphs
(e)(5)(i)(A) through (F) of this section.
    (iii) Distributor or retailer. Any distributor (e.g., pipeline,
terminal operator, marketer, truck carrier) or retailer that is deemed
liable under Sec.  80.612(a) for a violation of Sec.  80.610(a)(1),
concerning diesel fuel that is sold, offered for sale, or dispensed at
a retail outlet and that does not meet the applicable sulfur content
standard under Sec.  80.520(a)(1), as adjusted under Sec.  80.580(d),
will be deemed to have established its defense under this section,
provided that, within two years prior to the time the diesel fuel
sample was collected by the independent survey association, the retail
outlet had no instances where the tested sulfur level of a diesel fuel
sample was greater than the 15 ppm standard under Sec.  80.520(a)(1),
as adjusted under Sec.  80.580(d); and
    (A) Where the retailer displays the brand name of a refiner or
importer, the requirements in paragraphs (e)(5)(i) of this section are
met by the branded refiner or importer; or
    (B) Where the branded refiner or importer has elected not to
participate in a consortium as described in paragraph (e)(1) of this
section, or where the retailer does not display the brand name of a
refiner or importer, the distributor or retailer is a member of the
consortium described in paragraph (e)(1) of this section and the
distributor or retailer meets the requirements in paragraphs
(e)(5)(i)(A) through (F) of this section.
    (C) If within two years prior to the time the diesel fuel sample
was collected by the independent survey association, the retail outlet
had an instance where the tested sulfur level of a diesel fuel sample
was greater than the 15 ppm standard under Sec.  80.520(a)(1), as
adjusted under Sec.  80.580(d), any distributor or retailer that is
deemed liable for a violation under Sec.  80.612 will be deemed to have
established its defense under this section if the party meets the
requirements under paragraph (e)(5)(iii)(A) or (B) of this section (in
lieu of the requirement in paragraph (a)(1)(iii) of this section), and
the party meets the requirements under paragraphs (a)(1)(i),
(a)(1)(ii), and (c) of this section.
    (6) Sulfur test result that is three or more ppm Greater than the
15 ppm standard under Sec.  80.520(a)(1), as adjusted under Sec.
80.580(d). The following provisions apply if the tested sulfur level of
a diesel fuel sample collected by the independent survey association is
three or more ppm greater than the 15 ppm standard under Sec.
80.520(a)(1), as adjusted under Sec.  80.580(d):
    (i) Branded refiner or importer. Any branded refiner or importer
that is deemed liable under Sec.  80.612(a) for a violation of Sec.
80.610(a)(1), concerning diesel fuel that is sold, offered for sale, or
dispensed at a retail outlet and that does not meet the applicable
sulfur content standard under Sec.  80.520(a)(1), as adjusted under
Sec.  80.580(d), will be deemed to have established its defense under
this section if the refiner or importer meets the requirements under
paragraph (e)(5)(i) of this section and meets the requirements under
paragraphs (a)(1)(i), (a)(1)(ii), (b)(1), (b)(2), (b)(3), and (c) of
this section.
    (ii) Unbranded refiner or importer. Any unbranded refiner or
importer that is deemed liable under Sec.  80.612(a) for a violation of
Sec.  80.610(a)(1), concerning diesel fuel that is sold, offered for
sale, or dispensed at a retail outlet and that does not meet the
applicable sulfur content standard under Sec.  80.520(a)(1), as
adjusted under Sec.  80.580(d), will be deemed to have established its
defense under this section if the refiner or importer meets the
requirements under paragraph (e)(5)(ii) of this section and meets the
requirements under

paragraphs (a)(1)(i), (a)(1)(ii), (a)(1)(iv), and (c) of this section.
    (iii) Distributor or retailer. Any distributor or retailer that is
deemed liable under Sec.  80.612(a) for a violation of Sec.
80.610(a)(1), concerning diesel fuel that is sold, offered for sale, or
dispensed at a retail outlet and that does not meet the applicable
sulfur content standard under Sec.  80.520(a)(1), as adjusted under
Sec.  80.580(d), will be deemed to have established its defense under
this section if the requirements under paragraph (e)(5)(iii)(A) or (B)
of this section, as appropriate, are met, and the distributor or
retailer meets the requirements under paragraphs (a)(1)(i), (a)(1)(ii),
and (c) of this section. Distributors that blend a diesel fuel additive
subject to the requirements of Sec.  80.521(b) into motor vehicle
diesel fuel subject to the 15 ppm sulfur standard under Sec.  80.520(a)
must also meet the requirement under paragraph (a)(1)(iv) of this
section.
    (7) Report regarding motor vehicle diesel fuel subject to the 15
ppm sulfur standard under Sec.  80.520(a)(1) with high sulfur content.
The report that is required to be submitted to EPA under paragraph
(e)(5)(i)(F) of this section shall contain the following information:
    (i) The name, address and contact information for the regulated
party submitting the report;
    (ii) The name, address and contact information for the retail
outlet where the high sulfur diesel fuel was found;
    (iii) The brand name of the refiner or importer displayed at the
retail outlet, if any;
    (iv) The date of sampling, the analysis results, and the label that
appeared on the pump where the sample was collected.
    (v) For each of the most recent three deliveries (i.e., the three
deliveries that immediately preceded the taking of the violating
sample) of diesel fuel to the retail outlet storage tank at issue, or
the most recent five deliveries if the cause of the violation is not
demonstrated following analysis of the most recent three deliveries:
    (A) A copy of the product transfer documents for the delivery;
    (B) The name, address and contact information for the terminal and
truck distributor that supplied the diesel fuel;
    (C) The date of delivery and the volume of diesel fuel delivered;
    (D) The designation of the diesel fuel on the product transfer
document;
    (E) The test results (or other evidence of the diesel sulfur
content) for the diesel fuel in the terminal tank from which the
delivery truck was loaded, and copies of the test result reports; and
    (F) A description of the procedures used by the truck distributor
to avoid diesel contamination (e.g., dedicated trucks).
    (vi) A description of any actions taken to prevent sale of the
noncompliant diesel fuel, including:
    (A) The date and time the regulated party was notified of the high
sulfur test result, the date and time the retailer was notified, and
the date and time the sale of motor vehicle diesel fuel subject to the
15 ppm sulfur standard under Sec.  80.520(a)(1) was suspended;
    (B) A description of the actions taken to prevent sale of the
noncompliant diesel fuel; and
    (C) The date and time that sales of motor vehicle diesel fuel
subject to the 15 ppm sulfur standard under Sec.  80.520(a)(1) from the
retail storage tank at issue were resumed, the results of the test used
to establish the fuel met applicable standards, and a copy of the test
result report.
    (vii) A description of the root-cause analysis required in
paragraph (e)(5)(i)(D) of this section, including:
    (A) A description of the investigation conducted to determine the
root-cause of the noncompliant diesel fuel, and the conclusions reached
as a result of this investigation; and
    (B) A description of the steps taken to prevent future problems
from the identified cause.
    (8) Summary survey reports. The quarterly and annual summary survey
reports required under paragraph (e)(3)(v) of this section shall
include the following information:
    (i) The identification of each sampling area included in a survey
and the dates that the samples were collected in that area;
    (ii) For each retail outlet sampled:
    (A) The identification of the retail outlet;
    (B) The refiner or importer brand name displayed, if any;
    (C) The pump labeling; and
    (D) The sample test result.
    (iii) Sulfur level summary statistics by brand and unbranded for
each sampling area, strata, survey and annual survey series. These
summary statistics shall:
    (A) Include the number of samples, and the average, median and
range of sulfur levels; and
    (B) Be provided separately for the diesel fuel samples from pumps
labeled as dispensing motor vehicle diesel fuel subject to the 15 ppm
sulfur standard under Sec.  80.520(a)(1), motor vehicle diesel fuel
subject to the 500 ppm sulfur standard under Sec.  80.520(c), and pumps
that are not labeled.
    (iv) The quarterly reports required under this paragraph (e)(8) are
due sixty days following the end of the quarter. The annual reports
required under this paragraph (e)(8) are due sixty days following the
end of the calendar year.
    (v) The reports required under this paragraph (e)(8) shall be
submitted to EPA in both electronic spreadsheet and hard copy form.
    (9) EPA inspections. If EPA inspects any facility and determines
that the sulfur content of diesel fuel exceeds the 15 ppm standard
under Sec.  80.520(a)(1), as adjusted under Sec.  80.580(d), liability
for such sulfur content violation under Sec.  80.612 will be treated as
provided in paragraph (e)(6) of this section for branded refiners or
distributors that participate in the consortium under this paragraph
(e). Any other party deemed liable for a violation under Sec.  80.612
must establish a defense under paragraphs (a) through (d) of this
section, as applicable.
    (10) Procedures for obtaining approval of survey plan. The
procedure for obtaining EPA approval of a survey plan under this
paragraph (e), and for revocation of such approval, is as follows:
    (i) A survey plan that complies with the requirements of this
paragraph (e) must be submitted to EPA no later than November 1 of the
year preceding the calendar year in which the surveys will be
conducted;
    (ii) The survey plan must be signed by a responsible officer of the
consortium which arranges to have an independent surveyor conduct the
survey program;
    (iii) The survey plan must be sent to the following address:
Director, Compliance and Innovative Strategies Division, U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave., NW. Mail Code
6506J, Washington, DC 20460;
    (iv) EPA will send a letter to the party submitting a survey plan
under this section, either approving or disapproving the survey plan;
    (v) EPA may revoke any approval of a survey plan under this section
for cause, including an EPA determination that the approved survey plan
has proved to be inadequate in practice or that it was not diligently
implemented;
    (vi) The approving official for a survey plan under this section is
the Director of the Compliance and Innovative Strategies Division,
Office of Transportation and Air Quality.
    (vii) Any notifications or reports required to be submitted to EPA
under this paragraph (e) must be directed to the official designated in
paragraph (e)(10)(vi) of this section.
    (11) Independent surveyor contract. (i) No later than December 1 of
the year preceding the year in which the surveys

will be conducted, the contract with the independent surveyor shall be
in effect, and an amount of money necessary to carry out the entire
survey plan shall be paid to the independent surveyor or placed into an
escrow account with instructions to the escrow agent to pay the money
to the independent surveyor during the course of the conduct of the
survey plan.
    (ii) No later than December 15 of the year preceding the year in
which the surveys will be conducted, EPA must receive a copy of the
contract with the independent surveyor, proof that the money necessary
to carry out the survey plan has either been paid to the independent
surveyor or placed into an escrow account, and, if placed into an
escrow account, a copy of the escrow agreement, to be sent to the
official designated in paragraph (e)(10)(vi) of this section.
    (12) Failure to fulfill requirements. A failure to fulfill or cause
to be fulfilled any of the requirements of this paragraph (e) will
cause the option to use the alternative quality assurance requirement
under this paragraph (e) to be void ab initio.

0
3. Section 80.1339 is amended by revising paragraph (e)(4) to read as
follows:

Sec.  80.1339  Who is not eligible for the provisions for small
refiners?

* * * * *
    (e) * * *
    (4) During the period provided under paragraph (e)(2) of this
section, and any extension provided under paragraph (e)(3) of this
section, the refiner may not generate gasoline benzene credits under
Sec.  80.1275(b)(3) for any of its refineries where under Sec.  80.1342
the refiner was previously allowed to defer compliance with the
standards in Sec. Sec.  80.1230(a) and 80.1230(b).
* * * * *
[FR Doc. 2010-10915 Filed 5-10-10; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: March 8, 2006 (Volume 71, Number 45)]
[Notices]
[Page 11606]
[DOCID:fr08mr06-65]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 11858-002]

The Nevada Power Company, Inc.; Elsinore Valley Municipal Water
District; California; Notice of Intention To Hold Public Meetings for
Discussion of the Draft Environmental Impact Statement for the Lake
Elsinore Advanced Pumped Storage Project

March 1, 2006.
    On February 17, 2006, the Commission staff delivered the Lake
Elsinore Advanced Pumped Storage (LEAPS) Project Draft Environmental
Impact Statement (draft EIS) to the Environmental Protection Agency and
mailed it to resource and land management agencies, interested
organizations, and individuals.
    The draft EIS was noticed in the Federal Register on February 24,
2006, (71 FR 9819) and comments are due April 25, 2006. The draft EIS
evaluates the environmental consequences and developmental benefits of
issuing an original license for building, operating and maintaining the
LEAPS Project, located in Riverside County, California. The project
would occupy 2,412 acres of federal lands, including lands managed by
the Cleveland National Forest. Besides evaluating the applicant's
proposal, the draft EIS evaluates a FERC staff proposal and the no-
action alternative.
    Two public meetings, which will be recorded by an official
stenographer, are scheduled as follows.

    Date: Tuesday, April 4, 2006.
    Time: 7-10 p.m. (PST).
    Place: San Juan Capistrano Community Center, 25925 Camino del
Avion, San Juan Capistrano, CA 92675.

    Date: Wednesday, April 5, 2006.
    Time: 7-10 p.m. (PST).
    Place: Lake Elsinore Cultural Center, 183 N. Main Street, Lake
Elsinore, CA 92530.

    At these meetings, resource agency personnel and other interested
persons will have the opportunity to provide oral and written comments
and recommendations regarding the DEIS for the Commission's public
record.
    For further information, please contact Jim Fargo at e-mail address
<EMAIL_ADDRESS>or by telephone at<PHONE_NUMBER>.

Magalie R. Salas,
Secretary.
[FR Doc. E6-3212 Filed 3-7-06; 8:45 am]

BILLING CODE 6717-01-P