[Federal Register Volume 70, Number 135 (Friday, July 15, 2005)]
[Proposed Rules]
[Pages 40949-40951]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13782]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[AMS-FRL-7937-2]
RIN 2060-AN19


Control of Emissions of Air Pollution From Diesel Fuel

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 adopted on January 18, 2001 (66 
FR 5002), and the Nonroad Diesel Rule on June 29, 2004 (69 FR 38958). 
First, it proposes minor corrections to clarify the regulations 
governing compliance with the diesel fuel standards. These minor 
corrections focus primarily on the Nonroad Rule, however, some may 
affect provisions contained in the Highway Rule that were overlooked at 
the time the Nonroad Rule was finalized. Second, it proposes amending 
the designate and track provisions to account for companies within the 
fuel distribution system that perform more than one function related to 
fuel production and/or distribution. This would alleviate the problem 
of inaccurate volume balances due to a company performing multiple 
functions. Finally, with respect to the generation of fuel credits, it 
proposes revising the regulatory text to allow refiners better access 
to early highway diesel fuel credits. The intention of this amendment 
is to help ensure a smooth transition to ultra low-sulfur diesel fuel 
nationwide.
    We are publishing in the ``Rules and Regulations'' section of 
today's Federal Register a direct final rule that will correct several 
typographical errors, modify the designate and track regulations to 
account for companies that perform more than one function, and provide 
increased incentive for early compliance with the ultra low-sulfur 
diesel fuel requirements without further EPA action unless we receive 
adverse comment. We have explained our reasons for today's action in 
detail in the preamble to the direct final rule. If we receive adverse 
comment, we will withdraw the direct final rule prior to its effective 
date, and will address all public comments 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.

DATES: Written comments must be received by August 15, 2005. As 
explained in section II of the direct final rule, we do not expect to 
hold a public hearing, however, requests for a public hearing must be 
received by August 1, 2005. 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: Comments: All comments and materials relevant to this action 
should be submitted to Public Docket No. OAR-2005-0134 by the date 
indicated under DATES above. Materials relevant to this rulemaking are 
in Public Docket at the following address: 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, Ann Arbor, MI 48105; telephone (734) 214-4018, fax (734) 
214-4816, e-mail [email protected] or Emily Green, see address above; 
telephone (734) 214-4639, fax (734) 214-4816, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Regulated Entities

    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
               Category                 code a      affected 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. How Can I Get Copies of This Document and Send Comments?

    See the direct final rule EPA has published in the ``Rules and 
Regulations'' section of today's 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

    On January 18, 2004, we published the final Highway Rule (66 FR 
5002) which is a comprehensive national program to greatly reduce 
emissions from diesel engines by integrating engine and fuel controls 
as a system to gain the greatest air quality benefits. Subsequently, we 
adopted the Nonroad Rule (69 FR 38958) on June 29, 2004 to amend the 
Highway Rule to include Nonroad equipment and fuel to further the goal 
of decreasing harmful emissions. After promulgation of these rules, we 
discovered several typographical errors and it also became evident that 
several additions or deletions were necessary to clarify portions of 
the regulations. This rule would correct those errors and serve to 
clarify the regulations to facilitate compliance.
    Along with these minor clarifications, this rule would modify the 
text of the designate and track provisions to include provisions for 
companies that perform more than one function in the fuel system. For 
example, as these provisions are currently written, fuel

[[Page 40950]]

distributers are only required to report on the volumes of fuel 
received and delivered. If the same company also produces fuel 
internally (acts as a refiner or importer), its receipts and deliveries 
reported will not balance. This rule would allow such companies to 
balance their volume reports in compliance with the designate and track 
regulations.
    Finally, this rule would revise the regulatory text of the Nonroad 
Rule to allow refiners greater access to early fuel credits. The 
purpose of this change is to ensure a smooth transition to ultra low-
sulfur diesel fuel nationwide. For additional discussion of these 
changes, see the direct final rule EPA has published in the ``Rules and 
Regulations'' section of today's Federal Register. This proposal 
incorporates by reference all 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 today's 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

    Because this rule would merely correct several typographical 
errors, modify the designate and track regulations to account for 
companies that perform more than one function, and provide increased 
incentive for early compliance with the ultra low-sulfur diesel fuel 
requirements, it would not be a significant regulatory action and is 
not subject to the requirements fo Executive Order 12866. There would 
be no new costs associated with this rule. A Final Regulatory Support 
Document was prepared in connection with the original regulations for 
the Highway Rule and Nonroad 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) \1\ and at the following internet address: http://www.epa.gov/cleandiesel. The original action was submitted to the 
Office of Management and Budget for review under Executive Order 12866.
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    \1\ During the course of the Nonroad Rule, the Agency converted 
from the legacy docket system to the current electronic docket 
system (EDOCKET).
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B. Paperwork Reduction Act

    This action does not impose any new information collection burden, 
as it merely corrects several typographical errors, modifies the 
designate and track regulations to account for companies that perform 
more than one function, and provides increased incentive for early 
compliance with the ultra low-sulfur diesel fuel requirements. However, 
the Office of Management and Budget (OMB) has previously approved the 
information collection requirements for the original Highway Rule (66 
FR 5002, January 18, 2001) and the Nonroad Rule (69 FR 38958, June 29, 
2004) 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 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 today's proposed rule on 
small entities, we certify that this action would 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. This rule would merely correct several typographical errors, 
modify the designate and track regulations to account for companies 
that perform more than one function, and provide increased incentive 
for early compliance with the ultra low-sulfur diesel fuel 
requirements. 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

    This rule would contain no federal mandates for state, local, or 
tribal governments as defined by the provisions of Title II of the 
UMRA. The

[[Page 40951]]

rule would impose 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 would contain no 
federal mandates that may result in expenditures of more than $100 
million to the private sector in any single year. This rule would 
merely correct several typographical errors, modify the designate and 
track regulations to account for companies that perform more than one 
function, and provide increased incentive for early compliance with the 
ultra low-sulfur diesel fuel requirements. The requirements of UMRA 
therefore would not apply to this action. See the direct final rule EPA 
has published in the ``Rules and Regulations'' section of today's 
Federal Register for a more extensive discussion of UMRA policy.

E. Executive Order 13132: Federalism

    This rule would not have federalism implications. It would 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 would merely correct 
several typographical errors, modify the designate and track 
regulations to account for companies that perform more than one 
function, and provide increased incentive for early compliance with the 
ultra low-sulfur diesel fuel requirements. Although Section 6 of 
Executive Order 13132 did not apply to the Highway Rule (66 FR 5002) or 
the Nonroad Rule (69 FR 38958), EPA did consult with representatives of 
various State and local governments in developing these rules. EPA has 
also consulted representatives from STAPPA/ALAPCO, which represents 
state and local air pollution officials. See the direct final rule EPA 
has published in the ``Rules and Regulations'' section of today's 
Federal Register for a more extensive discussion of Executive Order 
13132.

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

    This rule would not have tribal implications. It would 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 would 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 rule would merely 
correct several typographical errors, modify the designate and track 
regulations to account for companies that perform more than one 
function, and provide increased incentive for early compliance with the 
ultra low-sulfur diesel fuel requirements. Thus, Executive Order 13175 
would not apply to this rule. See the direct final rule EPA has 
published in the ``Rules and Regulations'' section of today's Federal 
Register for a more extensive discussion of Executive Order 13175.

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

    This rule is not subject to the Executive Order because it would 
not be economically significant, and would not involve decisions on 
environmental health or safety risks that may disproportionately affect 
children. See the direct final rule EPA has published in the ``Rules 
and Regulations'' section of today's Federal Register for a more 
extensive discussion of Executive Order 13045.

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

    This rule would not be 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 would not likely to have a significant 
adverse effect on the supply, distribution or use of energy. This rule 
would merely correct several typographical errors, modify the designate 
and track regulations to account for companies that perform more than 
one function, and provide increased incentive for early compliance with 
the ultra low-sulfur diesel fuel requirements.

I. National Technology Transfer and Advancement Act

    This rule would not involve technical standards. It would merely 
correct several typographical errors, modify the designate and track 
regulations to account for companies that perform more than one 
function, and provide increased incentive for early compliance with the 
ultra low-sulfur diesel fuel requirements. Thus, we have determined 
that the requirements of the NTTAA would not apply. See the direct 
final rule EPA has published in the ``Rules and Regulations'' section 
of today's Federal Register for a more extensive discussion of NTTAA 
policy.

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, Gasoline, Imports, Labeling, Motor vehicle 
pollution, Penalties, Reporting and recordkeeping requirements.

    Dated: July 6, 2005.
Stephen L. Johnson,
Administrator.
[FR Doc. 05-13782 Filed 7-14-05; 8:45 am]
BILLING CODE 6560-50-P