[Federal Register Volume 71, Number 83 (Monday, May 1, 2006)]
[Proposed Rules]
[Pages 25727-25731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3929]
Federal Register / Vol. 71, No. 83 / Monday, May 1, 2006 / Proposed
Rules
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[EPA-HQ-OAR-2006-0224; FRL-8161-8]
RIN 2060-AN78
Technical Amendments to the Highway and Nonroad Diesel
Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to correct, amend, and revise certain
provisions of the Highway Diesel Rule, and the Nonroad Diesel Rule.
This action proposes to correct additional errors and omissions from
the previous rules, and make minor changes to the regulations to assist
entities with regulatory compliance. Further, this action also proposes
technical amendments resulting from discussions with various diesel
stakeholders. These technical amendments would: provide a temporary
increase in the sulfur testing tolerance, revise the designate and
track provisions to account for non-petroleum diesel fuels (i.e.,
biodiesel) and fuel that meets the California Air Resources Board's
diesel fuel standards, and amend the alternative defense provisions to
account for conductivity additives and red dye. This proposed action is
intended to help facilitate compliance with the diesel fuel regulations
and ensure a smooth transition to ultra low sulfur diesel fuel.
DATES: Comments must be received on or before May 31, 2006. If a
hearing is requested, the request must be received by May 16, 2006. If
we receive a request for a public hearing, we will publish information
related to the timing and location of the hearing and the timing of a
new deadline for public comments.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2006-0224 by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: [email protected].
Fax: (734) 214-4816.
Mail: Air Docket, Environmental Protection Agency,
Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Hand Delivery: EPA Docket Center, (EPA/DC) EPA West, Room
B102, 1301 Constitution Ave., NW., Washington, DC. 20004. 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-
2006-0224. 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 be
automatically 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 http://www.regulations.gov or in hard copy at the EPA Docket Center
(EPA/DC), Public Reading Room, Room B102, EPA West Building, 1301
Constitution Avenue, 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, except on government holidays. You can reach the Air Docket by
telephone at (202) 566-1742 and by facsimile at (202) 566-1741. You may
be charged a reasonable fee for photocopying docket materials, as
provided in 40 CFR part 2.
FOR FURTHER INFORMATION CONTACT: Tia Sutton, U.S. EPA, National Vehicle
and Fuels Emission Laboratory, Assessment and Standards Division, 2000
Traverwood Dr., Ann Arbor, MI 48105; telephone (734) 214-4018, fax
(734) 214-4816, e-mail [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
This action will affect companies and persons that produce, import,
distribute, or sell highway and/or nonroad diesel fuel. Affected
Categories and entities include the following:
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NAICS Examples of potentially affected
Category Code a entities
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Industry................... 324110 Petroleum refiners.
Industry................... 422710 Diesel fuel marketers and
distributors.
Industry................... 484220 Diesel fuel carriers.
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a North American Industry Classification System (NAICS).
This list is not intended to be exhaustive, but rather provides a
guide regarding entities likely to be affected by this action. To
determine whether particular activities may be affected by this action,
you should carefully examine the regulations. You may direct questions
regarding the applicability of this action as noted in FOR FURTHER
INFORMATION CONTACT.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or e-mail. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in 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 so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. 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).
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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.
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. How Can I Get Copies of This Document?
See the direct final rule EPA has published in the ``Rules and
Regulations'' section of this Federal Register for information about
accessing these documents. The direct final rule also includes detailed
instructions for sending comments to EPA.
II. Summary of Rule
The Highway Diesel rule, published on January 18, 2001 (66 FR
5002), is a comprehensive national program that will greatly reduce
emissions from diesel engines by integrating engine and fuel controls
as a system to gain the greatest air quality benefits. The Nonroad
Diesel Rule was subsequently published on June 29, 2004 (69 FR 38958).
The Nonroad Diesel Rule took a similar approach, covering nonroad
diesel equipment and fuel to further the goal of decreasing harmful
emissions. In 2005, we published two additional direct final
rulemakings (70 FR 40889 was published on July 15, 2005 and 70 FR 70498
was published on November 22, 2005) to make technical amendments to
those rules. We have chosen to propose a third action to correct
additional errors and omissions from the previous rules, as well as
include amendments developed following discussions with stakeholders
throughout the diesel fuel industry. These discussions resulted in the
following changes that are being proposed today, such as: (1) Providing
a temporary increase in the sulfur testing tolerance; (2) revising the
designate and track provisions to account for non-petroleum diesel
fuels (i.e., biodiesel) and fuel that meets the California Air
Resources Board's diesel fuel standards; and, (3) amending the
alternative defense provisions to account for conductivity additives
and red dye. The proposed clarifications and corrections include: The
allowance for early motor vehicle diesel credits to be traded across
Credit Trading Areas, the assignment of Puerto Rico and the U.S. Virgin
Islands to CTA 1, the allowance of shorter statements on product
transfer documents (with EPA approval), the clarification that approved
small refiners who have elected to use the ``gas-for-diesel'' small
refiner option (Sec. 80.553 and Sec. 80.554) may designate 15 ppm
diesel fuel as motor vehicle diesel fuel or nonroad, locomotive, and
marine diesel fuel, and other minor corrections to help facilitate
compliance with EPA's diesel fuel regulations.
For further discussion on all of the proposed changes contained in
this action, see the direct final rule EPA has published in the ``Rules
and Regulations'' section of this Federal Register. This proposal
incorporates by reference all of the reasoning, explanation, and
regulatory text from the direct final rule.
Because EPA views the provisions of the action as noncontroversial
and does not expect adverse comment, we are publishing a direct final
rule in the ``Rules and Regulations'' section of this Federal Register.
However, we are publishing this notice of proposed rulemaking to serve
as the proposal to adopt the provisions in the direct final rule if
adverse comments are filed. If we receive adverse comment on one or
more distinct amendment, paragraphs, or sections of the direct final
rulemaking, or receive a request for a hearing within the time frame
described above, we will publish a timely withdrawal of the proposed
direct final rule in the Federal Register indicating which provisions
will become effective and which provisions are being withdrawn due to
adverse comment. We will address all public comments received in a
subsequent final rule based on this proposed rule. We will not
institute a second comment period on this action. Any parties
interested in commenting must do so at this time. Any distinct
amendment, paragraph, or section of the direct final rulemaking for
which we do not receive adverse comment will become effective according
to the DATES section in the direct final rule, notwithstanding any
adverse comment on any other distinct amendment, paragraph, or section
of the rule.
III. 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 must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) 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;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review. This action simply corrects errors
and omissions, provides a temporary increase in the sulfur testing
tolerance, revises the designate and track provisions to account for
non-petroleum diesel fuels (i.e., biodiesel) and fuel that meets the
California Air Resources Board's diesel fuel standards, and amends the
alternative defense provisions to account for conductivity additives
and red dye. There are no new costs associated with this rule.
Therefore, this proposed rule is not subject to the requirements of
Executive Order 12866. A Final Regulatory Support Document was prepared
in connection with the original regulations for the Highway Diesel Rule
and the Nonroad Diesel Rule as promulgated on January 18, 2001 and June
29, 2004, 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) and the June 29, 2004 rulemaking (OAR-2003-0012
and A-2001-28) and at the following internet address: http://www.epa.gov/cleandiesel. The original action was submitted to the
Office of Management
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and Budget for review under Executive Order 12866.
B. Paperwork Reduction Act
This action does not impose any new information collection burden,
as it simply corrects errors and omissions, provides a temporary
increase in the sulfur testing tolerance, revises the designate and
track provisions to account for non-petroleum diesel fuels (i.e.,
biodiesel) and fuel that meets the California Air Resources Board's
diesel fuel standards, and amends the alternative defense provisions to
account for conductivity additives and red dye. However, the Office of
Management and Budget (OMB) has previously approved the information
collection requirements contained in the existing regulations of the
Highway Diesel Rule (66 FR 5002, January 18, 2001) and the Nonroad
Diesel Rule (69 FR 38958, June 29, 2004) under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB
control number 2060-0308 (EPA ICR 1718). A copy of the OMB
approved Information Collection Request (ICR) may be obtained from
Susan Auby, Collection Strategies Division; U.S. Environmental
Protection Agency (2822T); 1200 Pennsylvania Avenue, 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 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 this rule on small
entities, a small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) size standards at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of this proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule would not impose any new requirements on small entities
as it would merely correct errors and omissions, provide a temporary
increase in the sulfur testing tolerance, revise the designate and
track provisions to account for non-petroleum diesel fuels (i.e.,
biodiesel) and fuel that meets the California Air Resources Board's
diesel fuel standards, and amend the alternative defense provisions to
account for conductivity additives and red dye.
We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 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 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 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 why that
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for 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 (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector. 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. This proposed rule merely corrects errors and omissions,
provides a temporary increase in the sulfur testing tolerance, revises
the designate and track provisions to account for non-petroleum diesel
fuels (i.e., biodiesel) and fuel that meets the California Air
Resources Board's diesel fuel standards, and amends the alternative
defense provisions to account for conductivity additives and red dye.
Thus, this rule is not subject to the requirements of sections 202
and 205 of the UMRA.
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
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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. This direct final rule simply
corrects errors and omissions, provides a temporary increase in the
sulfur testing tolerance, revises the designate and track provisions to
account for non-petroleum diesel fuels (i.e., biodiesel) and fuel that
meets the California Air Resources Board's diesel fuel standards, and
amends the alternative defense provisions to account for conductivity
additives and red dye. Although Section 6 of Executive Order 13132 did
not apply to the Highway Diesel Rule (66 FR 5002) or the Nonroad Diesel
Rule (69 FR 38958), EPA did consult with representatives of various
State and local governments in developing these rules. For this direct
final action, EPA consulted with representatives of the California Air
Resources Board and the Western States Petroleum Association (WSPA) for
the amendments made which will affect refiners and distributors in
California.
F. Executive Order 13175 Consultation and Coordination With Indian
Tribal Governments:
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 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.'' This direct final rule does
not have tribal implications as specified in Executive Order 13175.
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. Further, no circumstances specific to such communities
exist that would cause an impact on these communities beyond those
discussed in the other sections of this rule. This direct final rule
merely corrects errors and omissions, provides a temporary increase in
the sulfur testing tolerance, revises the designate and track
provisions to account for non-petroleum diesel fuels (i.e., biodiesel)
and fuel that meets the California Air Resources Board's diesel fuel
standards, and amends the alternative defense provisions to account for
conductivity additives and red dye. 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, the Agency must 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 proposed 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 supply, distribution or use of energy. This
action simply proposes to correct errors and omissions, provide a
temporary increase in the sulfur testing tolerance, revise the
designate and track provisions to account for non-petroleum diesel
fuels (i.e., biodiesel) and fuel that meets the California Air
Resources Board's diesel fuel standards, and amend the alternative
defense provisions to account for conductivity additives and red dye.
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. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards. This action merely proposes to correct errors and omissions,
provide a temporary increase in the sulfur testing tolerance, revise
the designate and track provisions to account for non-petroleum diesel
fuels (i.e., biodiesel) and fuel that meets the California Air
Resources Board's diesel fuel standards, and amend the alternative
defense provisions to account for conductivity
[[Page 25731]]
additives and red dye. Thus, we have determined that the requirements
of the NTTAA do not apply.
IV. 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
Fuel additives, Imports, Incorporation by reference, Labeling,
Motor vehicle pollution, Penalties, Reporting and recordkeeping
requirements.
Dated: April 20, 2006.
Stephen L. Johnson,
Administrator.
[FR Doc. 06-3929 Filed 4-28-06; 8:45 am]
BILLING CODE 6560-50-P