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Regulation of Fuels and Fuel Additives; Fuel Quality Regulations for Highway Diesel Fuel Sold in 1993 and Later Calendar Years; Interim Final Rule


American Government

Regulation of Fuels and Fuel Additives; Fuel Quality Regulations for Highway Diesel Fuel Sold in 1993 and Later Calendar Years; Interim Final Rule

Carol M. Browner
Environmental Protection Agency
14 July 1994


[Federal Register Volume 59, Number 134 (Thursday, July 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17001]


[[Page Unknown]]

[Federal Register: July 14, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80

[AMS-FRL-5012-8]

 

Regulation of Fuels and Fuel Additives; Fuel Quality Regulations 
for Highway Diesel Fuel Sold in 1993 and Later Calendar Years; Interim 
Final Rule

AGENCY: Environmental Protection Agency.

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: EPA regulations currently require that diesel fuel for use in 
motor vehicles (``on-highway'') meet a sulfur content standard, as well 
as standards for cetane index or in the alternative for aromatic 
content, and be free of visible evidence of the blue dye, 1,4-
dialkylamino-anthraquinone. This rule implements provisions to change 
the blue dye specified in EPA's regulations to the red dye solvent red 
164. The use of dye solvent red 164 for high sulfur diesel would 
mitigate aviation safety concerns raised because of the use of blue dye 
in certain aviation gasoline. Based on the time needed for refiners and 
importers to obtain adequate supplies of dye solvent red 164 for diesel 
fuel and deplete current inventories of blue dye held by the oil 
industry, this rule provides that after October 1, 1994 no refiner or 
importer shall add blue dye to off-highway diesel fuel. Until that date 
either blue or dye solvent red 164 could be used to dye high sulfur 
off-highway diesel fuel. Under this rule, downstream parties can 
continue to use existing supplies of blue dyed diesel fuel. This timing 
represents a balance between the need to address the safety issue as 
quickly as possible and provide a reasonable lead time for the affected 
industries to implement this change. This rule also provides 
requirements and defenses related to violations based on the presence 
of dye solvent red 164 in on-highway diesel fuel, including an 
exception for certain tax-exempt on-highway fuel dyed red pursuant to 
Internal Revenue Service (IRS) regulations. IRS regulations generally 
require tax-exempt high sulfur diesel fuel to be dyed blue. In a 
related rulemaking, and for similar reasons, the IRS is changing its 
regulations to call for the use of dye solvent red 164 instead of blue 
dye.

DATES: As discussed more fully herein, EPA is issuing this as an 
interim final rule effective July 14, 1994 except for Sec. 80.29(c). 
The information requirements in 40 CFR 80.29(c) have not been approved 
by the Office of Management and Budget (OMB) and are not effective 
until OMB has approved them and an announcement of effective date is 
published in the Federal Register. EPA will accept written comments on 
any appropriate changes to this rule up to 30 days from July 14, 1994.

ADDRESSES: Written comments on this rule should be submitted to Public 
Docket A-94-36 at the following address. Materials relevant to this 
rule change are also contained in Public Docket A-94-36, located at 
Room M-1500, Waterside Mall (ground floor), U.S. Environmental 
Protection Agency, 401 M Street SW., Washington, DC 20460. The docket 
may be inspected between 8:00 a.m. and 4:00 p.m., Monday through 
Friday. A reasonable fee may be charged by EPA for copying docket 
materials.

FOR FURTHER INFORMATION CONTACT: Paul N. Argyropoulos, Field Operations 
and Compliance Policy Branch, Field Operations and Support Division, 
U.S. Environmental Protection Agency, (202) 233-9004.

SUPPLEMENTARY INFORMATION:

I. Introduction

    EPA regulations currently require that diesel fuel for use in motor 
vehicles (``on-highway'') meet a sulfur content standard, as well as 
standards for cetane index or in the alternative for aromatic content, 
and be free of visible evidence of the blue dye, 1,4-dialkylamino-
anthraquinone. These requirements apply at all points in the 
distribution system. The regulations also provide that diesel fuel 
which is free of visible evidence of the blue dye shall be considered 
available for use in motor vehicles and therefore subject to the low 
sulfur and other standards. Diesel fuel that is not for use in motor 
vehicles (``off-highway'') is not subject to these standards, and the 
blue dye is typically added by the refiner or importer to differentiate 
it from the diesel fuel subject to the low-sulfur standard.
    Aviation gasoline (avgas) is dyed to ensure that pilots, 
maintenance personnel, vendors and fuel handlers correctly service 
piston powered aircraft. Although red dye is also used, more than 90% 
of all avgas is dyed blue or green. Blue dyes now being injected into 
off-highway diesel fuels create fuels which may be similar in color to 
either blue or green avgas. The aviation community, through the Federal 
Aviation Administration (FAA), has raised concerns that the blue dyed 
diesel fuel might be confused with blue or green avgas, leading to 
aircraft misfueling and result in a serious aviation accident.
    This rule is designed to quickly resolve the safety concerns 
regarding the potential misidentification of diesel fuel as avgas, 
based on the similar dye color used in these fuels. EPA's rule changes 
the dye used in the diesel fuel program from a blue color to a red 
color, and prohibits refiners and importers from producing diesel fuel 
with the use of the blue dye after October 1, 1994 in on-highway diesel 
fuel. However, under this rule, downstream parties can continue to use 
existing supplies of blue dyed diesel fuel. EPA believes this provides 
a reasonable time period to address the safety concern and for industry 
to obtain dye solvent red 164 and draw down supplies of blue dye. The 
IRS is undertaking a similar rulemaking to change the color of dye used 
in tax-exempt high sulfur diesel fuel from blue to red. Since, under 
IRS regulations all fuel is dyed, some of which can be used on-highway, 
EPA's rule also contains an exception allowing the use of red dye in 
this small category of on-highway diesel fuel, if certain conditions 
are met.
    EPA is taking this action after extensive discussion with the FAA, 
IRS, and the affected industries, including dye manufacturers. This 
rule reflects a reasonable balancing of the various interests involved, 
giving primary importance to the aviation safety issue. EPA invites 
comment on all issues raised by this rule, however, because of the 
critical safety issue involved, it is necessary to promulgate a final 
rule requiring the color change as quickly as possible and therefore 
without prior formal notice and comment. It is EPA's intention to 
expeditiously review all comments and determine whether it would be 
appropriate to make any change to this final rule.

II. Background

    EPA published regulations concerning diesel fuel on August 21, 
1990. 54 FR 35276. Under these regulations, beginning October 1, 1993, 
the sulfur content of on-highway diesel fuel could not exceed 0.05 wt. 
percent. EPA also specified standards for cetane index or aromatic 
content and required that on-highway diesel fuel be free of visible 
evidence of the blue dye 1,4-dialkylamino-anthraquinone. The standards 
established by EPA are designed to help control air pollution, 
especially particulate emissions from diesel motor vehicles and 
engines, and to coincide with EPA's heavy duty engine particulate 
standards which begin with the 1994 model year engines.
    EPA's regulations do not require the dyeing of off-highway diesel 
fuel. Instead, all diesel fuel that is free of visible evidence of the 
blue dye is presumed to be available for use in motor vehicles and, 
therefore, subject to the sulfur content and other standards. Refiners 
and others routinely dye off-highway diesel fuel to identify it as 
such, and avoid being subject to the standards applicable to on-highway 
diesel fuel.
    This program began in the fall of 1993, with the industry quickly 
achieving a high rate of compliance with all of the requirements. In 
early January 1994, EPA staff was contacted by individuals in the 
aviation community raising concerns that blue dyed diesel fuel might be 
mistaken for blue avgas, resulting in aircraft misfueling and a 
potentially serious aviation accident. This was identified as a 
particular concern in small and/or remote airfields where small 
aircraft operate and the handling procedures for fuel are less 
sophisticated or controlled. EPA was informed that the incident which 
triggered this concern occurred when a fuel handler on an airfield in 
Alaska encountered a delivery of blue fuels and claimed that he could 
not determine with any certainty which was diesel or avgas.
    Concern over this issue escalated quickly and EPA and various 
segments of the aviation community, including the FAA, various aviation 
associations, several airlines, the Coordinating Research Council (CRC) 
of the American Society of Testing and Materials (ASTM) and others 
quickly began to investigate this matter. FAA issued a ``Notice to 
Airmen'' on January 7, 1994 and subsequent safety notice on January 11, 
1994 to alert the aviation community to this concern. However, EPA, the 
FAA and others believed a more permanent solution was necessary.
    The aviation industry has used dyes in aviation fuels since the 
early 1940's to ensure the proper fueling of aircraft. Aircraft engines 
are particularly sensitive to engine wear problems and performance 
requirements specified by the manufacturers and thus it is critical 
that the proper fuel be used at all times. Aviation gasolines are 
currently dyed red, green or blue, at relatively low concentrations, to 
distinguish grades by octane and other specifications. Blue avgas is 
the most predominant and widely used in the United States. In addition, 
the dyeing of avgas provides an obvious distinction from jet fuel which 
is clear kerosene type fuel and is often located in the proximity of 
avgas. Standard aircraft pre-flight procedures require a fuel color 
check to ensure proper fueling because of this particular sensitivity.
    While there is no specific federal requirement for the dyeing of 
aviation fuel, industry practice is to follow the aviation fuel dye 
specifications in the ASTM Standard D 910. The ASTM standard specifies 
dye color and concentration and other critical aviation gasoline 
properties, including octane. Further requirements regarding fuels, 
transportation and storage apply under the National Fire Protection 
Association Standard 207.
    Dyeing of certain motor vehicle fuels is a relatively common 
practice. In the United States, however, on-highway and off-highway 
diesel fuel have generally not been dyed, except for the limited use of 
specific dyes in certain premium diesel fuels by various segments of 
the industry. Diesel fuels are commonly dyed in other countries, 
including Canada. The term diesel fuel covers a relatively broad 
spectrum of fuels, with a wide range of base colors. For example, 
undyed diesel fuel may vary from clear to a brownish color with nearly 
every shade in between. EPA's regulations have led to widespread use of 
the blue dye in off-highway diesel fuel, comprising approximately one 
half of all diesel fuel. In addition, IRS regulations issued on 
November 30, 1993 (58 FR 63069) and subsequently amended December 27, 
1993 (58 FR 68304) adopt EPA's blue dye requirement to identify tax-
exempt high sulfur diesel. The IRS regulations specify minimum dye 
concentration levels in order to meet the additional purposes of the 
IRS tax program.
    The tax exemption for diesel fuel applies primarily to off-highway 
fuel, but also includes a small segment of on-highway diesel fuel use 
such as for certain buses, vehicles operated by state and local 
governments and non-profit educational organizations. Tax exempt uses 
comprise approximately 5% of the total diesel fuel market. Only a 
portion of this fuel will be dyed where downstream facilities have 
installed and utilize dye injection equipment. Motor fuel highway tax 
must be paid on this on-highway diesel fuel unless it is dyed. Under 
the IRS regulations, this on-highway fuel may be dyed with the dye 
solvent red 164 at minimum specified concentrations. If sold undyed, 
taxes must be paid and the appropriate parties can apply for tax 
refunds.
    The safety issue described earlier arises even though blue or green 
avgas may not look very similar to the majority of blue dyed diesel 
fuel. Some off-highway diesel fuels, including home heating oils, when 
dyed blue may look very similar to blue or green avgas. This diesel 
fuel may also be used in and around small airfields. The inadvertent 
mixing of diesel fuels with avgas is of particular concern since even 
small levels of contamination can cause aviation engine failures.

III. Discussion of EPA's Rule

    EPA and other federal agencies have been examining various possible 
options to resolve the safety issue raised by the use of blue dye in 
diesel fuel. EPA and the other federal agencies considered whether the 
dye used in avgas should be changed given the much greater quantity of 
diesel fuel used annually than avgas. However, any change to the avgas 
colors was rejected since it is unlikely that the substantial 
understanding of fuel colors developed by pilots, fuel handlers, 
vendors and maintenance crews over nearly 50 years could be quickly 
undone without creating additional and possibly even greater safety 
risks. EPA and the other agencies, therefore, focused on the range of 
possible diesel fuel dye color changes.
    EPA believes a dye should meet two significant criteria for use in 
its diesel fuel program. These are (1) Dyed diesel fuel should be 
clearly distinguishable from undyed fuel throughout the range of base 
colors found in diesel fuel, and (2) dyed diesel fuel must be clearly 
distinguishable from any of the avgas colors. IRS has an additional 
requirement that the dye must be discernible in diesel fuel when 
diluted by a factor of five with undyed diesel throughout the range of 
base diesel colors. This additional criteria is important to the 
purpose of the IRS program since potential tax evaders can realize 
significant illegal profits by mixing taxed and untaxed fuels in those 
proportions. EPA's regulatory program is structured differently. The 
requirement that on-highway diesel fuel be free of visible evidence of 
the dye applies not just to a single taxpayer, but to all persons in 
the distribution chain. This builds a strong incentive into the program 
to not mix dyed and un-dyed diesel fuel. Other issues of concern in 
choosing an appropriate dye include cost, health effects, equipment 
compatibility, pipeline concerns and availability to the public of the 
dye(s) to be selected. At the concentrations required to meet EPA's 
standard of ``visible evidence'' which is approximately one pound per 
thousand barrels, these concerns are not significant since industry has 
been using dyes in diesel fuels for some time at concentrations of 
approximately three pounds per thousand barrels without significant 
adverse effects in these areas.
    EPA staff, other government officials, and industry experts have 
examined hundreds of dyed and undyed fuel samples. At several large 
meetings of industry and government personnel, diesel fuels dyed red, 
green and purple were studied in various concentration levels 
throughout the range of possible base colors. In addition, EPA and IRS 
field compliance personnel as well as aviation fuel users examined fuel 
samples from the perspective of each agency's program purposes. 
Industry experts provided further analyses of the colors and 
concentration options considered from the perspective of various 
industry concerns.
    After considering all the evidence, EPA believes that red dye for 
high sulfur diesel fuel is the most appropriate for meeting the 
different agency concerns. It is easily distinguishable from undyed 
fuel, and from avgas at the concentrations that IRS requires. Purple 
was considered but rejected, because it was only distinguishable in 
very light base diesel fuel colors. At sufficient concentrations in 
darker base colors, purple creates significant routine product quality 
test problems for pipeline carriers. Green was also seriously 
considered, but was also rejected because it very closely resembled 
many of the undyed diesel fuels when diluted five times and is often 
too close in color to green avgas. The aviation community did not 
consider red to have the same problem at the concentrations considered 
since ``red'' avgas is actually pink and readily distinguishable from 
red dyed diesel fuel. The ASTM is currently preparing to rename red 
avgas pink. Since EPA's dye standard is based on the lack of ``visible 
evidence'', the dye requirement is easily met at relatively low 
concentrations.1
---------------------------------------------------------------------------

    \1\ Under the current regulations for diesel fuel, refiners use 
approximately 1 lb of blue dye per 1000 barrels of diesel fuel. EPA 
expects that approximately the same amount of red dye would be used 
under this final regulation to show visible evidence of the red dye.
---------------------------------------------------------------------------

    With respect to cost, EPA does not believe the change from blue to 
red dye would cause any significant increase in cost, given the amount 
that would be used and the comparative cost of the dyes. Based on 
industry information, the cost of the red dye as specified, dye solvent 
red 164, is slightly less than the blue at similar concentrations, it 
is non-proprietary and is currently available from both Morton 
International and United Color Manufacturing. Based on discussions with 
these manufacturers, EPA believes that October 1, 1994 is a feasible 
date by which adequate supplies of the red dye can be manufactured and 
distributed, and made ready for use in dyeing off-highway diesel fuel.
    Similarly, EPA believes that an October 1, 1994 date for a 
changeover from blue to red dye will allow a reasonable period of time 
for refiners and others that use the blue dye to use up most, if not 
all, of their current inventory of blue dye. This is based on 
discussions with representatives of the oil industry. EPA does not 
expect that equipment compatibility will be a problem for the pipelines 
and others that transport and store diesel fuel based on the relatively 
low concentration needed to show visible evidence of the dye. Pipeline 
representatives have indicated their support for this belief at 
meetings on these issues. While EPA has not conducted testing of the 
effects of the dye solvent red 164 on boilers, furnaces, and other 
equipment that use off-highway diesel fuel, EPA is not aware of any 
indications that the red dye would cause problems, or would be any 
different in that regard than blue dye. Finally, with respect to health 
effects, EPA has preliminarily looked at this issue but has not reached 
any conclusion that dye solvent red 164 is either better or worse 
compared to the blue dye currently specified in EPA's regulations, or 
compared to other possible substitutes for blue dye.
    It is worth noting that blue dyed diesel fuel will continue to be 
in existence in storage facilities at all levels significantly past the 
October 1, 1994 date even though refiners and importers are prohibited 
from adding blue dye to off-highway diesel fuel. Therefore, these 
regulations do not make downstream parties liable for the continued use 
of existing supplies of blue dyed diesel fuel nor the mixtures of blue 
and red that will result. This diesel fuel could remain available for 
off-highway use for a period of time and, therefore, presents some risk 
to aviation safety. However, EPA is not aware of any feasible way to 
remove the blue dyed diesel fuel from the distribution and storage 
system. This rule is therefore aimed not at removing already dyed 
diesel fuel from the system, but at changing the practice of dyeing 
diesel fuel blue and thereby preventing the creation of additional 
supplies of this fuel. The EPA and other federal agencies encourage the 
rapid depletion of existing supplies of blue dyed diesel and the use of 
dye solvent red 164 as soon as possible.
    EPA believes this change over from blue to red dye as of October 1, 
1994 is reasonable in light of all of the above factors. It quickly 
moves to address the safety issue, while recognizing the need for a 
reasonable period of time for refiners and importers to obtain supplies 
of dye solvent red 164 and draw down the inventory of blue dye. The red 
dye is considered the best choice as a substitute for blue dye, given 
the information EPA has available at this time regarding coloring 
characteristics, cost, equipment compatibility, non-proprietary nature 
of the dye and health effects.
    The use of red dye for off-highway diesel fuel involves an 
additional concern for EPA with respect to that segment of on-highway 
diesel fuel that is tax-exempt and also dyed red under IRS regulations. 
EPA would prefer a unique color for the tax-exempt low sulfur fuel so 
as to retain a clear distinction from the dyed high sulfur as does 
various segments of the industry which supply and/or use this product 
under the IRS regulations. However, this is not feasible because, as 
discussed earlier, there was no other color that met all of the 
criteria adequately so as to meet the different agency requirements.
    Under EPA's current regulations, on-highway diesel fuel for certain 
tax-exempt users must be free of visible evidence of blue dye, however, 
the IRS regulations allow for this fuel to be dyed red. As a result, 
EPA is providing a limited exemption that would allow this tax-exempt 
on-highway diesel fuel to be dyed red under certain conditions. 
Specifically, EPA will allow distributors to supply low sulfur on-
highway diesel fuel that is dyed red if it meets the following 
conditions: (1) It must be provided for tax exempt use under IRS rules, 
(2) the diesel fuel must meet the standards for sulfur content and 
cetane index or aromatic content. In addition, supplier must provide 
transfer documents which certify that the fuel meets the applicable 
standards and the party receiving such fuel must retain these 
documents. Suppliers of red dyed diesel fuel for use in motor vehicles 
would have to provide and retain such transfer documents and suppliers 
and users of this fuel would also have to present such documents to 
establish a defense under the regulations if EPA discovers a violation. 
EPA does not believe that this creates a significant additional burden 
since bills of lading, invoices or some form of transfer document is 
already standard industry practice and this would merely require the 
additional designation on this documentation indicating the fuel meets 
EPA standards. In any case, a terminal has the option to either dye the 
on-highway diesel fuel red or in the alternative pay the required taxes 
and seek a refund. If regulated parties instead choose to dye the 
diesel fuel, or accept dyed diesel fuel for use in motor vehicles, and 
not pay the tax, the above requirements establish a reasonable 
structure that places the burden on the user or supplier to show the 
exception applies in their case.

IV. Environmental and Economic Impact

    The environmental impact of this rule would not differ in any 
significant way from the current regulations. EPA expects that this 
rule change will provide a reasonable resolution to the aviation safety 
concerns caused by the use of blue dye in diesel fuel. Given the 
comparable cost of the two dyes, and the leadtime allowed to obtain 
supplies of dye solvent red 164 and draw down supplies of blue, EPA 
believes there is no significant economic impact associated with the 
use of red rather than blue dye. Since fuel suppliers already provide 
transfer documents to customers, it will require only a minimal 
additional effort to indicate on such invoices that the fuel meets EPA 
requirements. Therefore, EPA believes that there will also be no 
significant economic impact associated with that requirement.

V. Public Participation

    EPA is issuing this final rule without prior notice and comment. 
This expedited rulemaking procedure is based on the need to act 
expeditiously to resolve the aviation safety risk caused by the 
presence of blue dyed diesel fuel and avgas. In support of this action, 
EPA has contacted and received detailed input from a significant number 
of interested parties, including other federal agencies. EPA believes 
these circumstances provide good cause under 5 U.S.C. 553(b) and CAA 
Sec. 307(d)(1) to expedite this rulemaking. EPA finds that notice and 
comment procedures under Sec. 307(d) are impracticable and contrary to 
the public interest based on these circumstances.
    At the same time EPA is providing 30 days for submission of public 
comments. EPA will consider all written comments submitted in the 
allotted time period to determine if any change to this rule is 
necessary.
    Any proprietary information being submitted for the Agency's 
consideration should be clearly distinguished from other submittals and 
clearly labeled ``Confidential Business Information.'' Proprietary 
information should be sent directly to the contact person listed above, 
and not to the public docket, to ensure that it is not inadvertently 
placed in the docket. Information thus labeled and directed shall be 
covered by a claim of confidentiality and will be disclosed by EPA only 
to the extent allowed and by the procedures set forth in 40 CFR part 2. 
If no claim of confidentiality accompanies a submission when it is 
received by EPA, it may be made available to the public without further 
notice to the submitter.
    For the aviation safety reasons noted above, this rule is effective 
upon publication. EPA finds these circumstances provide good cause 
under 5 U.S.C. 553(d) for this expedited effective date.

VI. Statutory Authority

    The authority for this action is sections 114, 211, and 301 of the 
Clean Air Act, as amended, 42 U.S.C. 7414, 7545, and 7601.

VII. Administrative Designation and Regulatory Analysis

A. Executive Order 12866

    Pursuant to 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 entitlement, 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.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is a ``significant action'' because this rule 
might interfere with an action taken or planned by another agency. As 
such, this action was submitted to OMB for review. Changes made in 
response to OMB suggestions or recommendations will be documented in 
the public record.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601, et seq., 
requires that federal agencies examine the effects of this proposal and 
identify significant adverse impacts of federal regulations on a 
substantial number of small entities. However, Section 605(b) of the 
RFA provides that an analysis is not required when the head of an 
agency certifies that the rule will not, if promulgated, have a 
significant economic impact on a substantial number of small entities.
    Because the RFA does not provide concrete definitions of ``small 
entity,'' ``significant impact,'' or ``substantial number,'' EPA has 
established guidelines setting the standards to be used in evaluating 
impacts on small businesses.2 For purposes of this rule, a small 
entity is any business which is independently owned and operated and 
not dominant in its field as defined by SBA regulations under section 3 
of the Small Business Act.
---------------------------------------------------------------------------

    \2\ U.S. Environmental Protection Agency, Memorandum to 
Assistant Administrators, ``Compliance with the Regulatory 
Flexibility Act,'' EPA Office of Policy, Planning, and Evaluation, 
1984. In addition, U.S. Environmental Protection Agency, Memorandum 
to Assistant Administrators, ``Agency's Revised Guidelines for 
Implementing the Regulatory Flexibility Act,'' Office of Policy, 
Planning, and Evaluation, 1992.
---------------------------------------------------------------------------

    Pursuant to section 605(b) of the Regultory Flexibility Act, 5 
U.S.C. 605(b), the Administrator certifies that this rule will not have 
a significant economic impact on a substantial number of small 
entities. This rule affects primarily petroleum refiners and suppliers 
of the required dye. While some of these parties may have existing 
inventories of blue dye after October 1, 1994, this rule will not 
adversely affect a significant number of small entities. However, EPA 
invites comment on the question of significant impacts on small 
entities.

C. Paperwork Reduction Act

    The information collection requirements in this rule will be 
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 requirements are not effective until OMB approves them and 
a technical amendment is published in the Federal Register. A separate 
Federal Register notice will be published requesting comments on the 
information collection.

List of Subjects in 40 CFR Part 80

    Environmental protection, Air pollution control, Fuel additives, 
Diesel fuel, Motor vehicle pollution, Penalties, Reporting and 
recordkeeping requirements.

    Dated: July 7, 1994.
Carol M. Browner,
Administrator.

    For the reasons set forth in the preamble, EPA is amending part 80 
of title 40 of the Code of Federal Regulations as follows:

PART 80--REGULATIONS OF FUELS AND FUEL ADDITIVES

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

    Authority: Sections 114, 211 and 301(a) of the Clean Air Act as 
amended (42 U.S.C. 7414, 7545 and 7601(a)).

    2. Section 80.29 is revised to read as follows:


Sec. 80.29  Controls and prohibitions on diesel fuel quality.

    (a) Prohibited activities.
    (1) Beginning October 1, 1993, no person, including but not limited 
to, refiners, importers, distributors, resellers, carriers, retailers 
or wholesale purchaser-consumers, shall manufacture, introduce into 
commerce, sell, offer for sale, supply, dispense, offer for supply or 
transport any diesel fuel for use in motor vehicles unless the diesel 
fuel:
    (i) Has a sulfur percentage, by weight, no greater than 0.05 
percent;
    (ii)(A) Has a cetane index of at least 40; or
    (B) Has a maximum aromatic content of 35 volume percent; and
    (iii) Is free of visible evidence of:
    (A) The dye 1,4-dialkylamino-anthraquinone; and
    (B) Beginning October 1, 1994;
    (1) The dye solvent red 164; unless
    (2) It is used in a manner that is tax-exempt as defined under 
Sec. 4082 of the Internal Revenue Code.
    (2) In the case of any diesel fuel not intended for use in motor 
vehicles, no refiner or importer shall add or introduce any amount of 
the dye 1,4-dialkylamino-anthraquinone into such fuel beginning October 
1, 1994.
    (b) Determination of compliance. Any diesel fuel which does not 
show visible evidence of being dyed with either 1,4-dialkylamino-
anthraquinone (which has a characteristic blue-green color in diesel 
fuel) or dye solvent red 164 (which has a characteristic red color in 
diesel fuel) shall be considered to be available for use in diesel 
motor vehicles and motor vehicle engines, and shall be subject to the 
prohibitions of paragraph (a) of this section. Compliance with the 
standards listed in paragraph (a) of this section shall be determined 
by use of one of the sampling methodologies specified in appendix G to 
this part.
    (c) Transfer documents.
    (1) Any person that transfers custody or title of diesel fuel for 
use in motor vehicles which contains visible evidence of the dye 
solvent red 164 shall provide documents to the transferee which state 
that such fuel meets the applicable standards for sulfur and cetane 
index or aromatic content under these regulations and is only for tax-
exempt use in diesel motor vehicles as defined under Sec. 4082 of the 
Internal Revenue Code.
    (2) Any person that is the transferor or the transferee of diesel 
fuel for use in motor vehicles which contains visible evidence of the 
dye solvent red 164, shall retain the documents required under 
paragraph (c)(1) of this section for a period of five years from the 
date of transfer of such fuel and shall provide such documents to the 
Administrator or the Administrator's representative upon request.
    (d) Liability. Liability for violations of paragraph (a)(1) of this 
section shall be determined according to the provisions of Sec. 80.30. 
Any person that violates paragraphs (a)(2) or (c) of this section shall 
be liable for penalties in accordance with paragraph (e) of this 
section.
    (e) Penalties. Penalties for violations of paragraphs (a) or (c) of 
this section shall be determined according to the provisions of 
Sec. 80.5.
    3. Section 80.30 is amended by adding paragraph (g)(7) as follows:


Sec. 80.30  Liability for violations of diesel fuel control and 
prohibitions.

* * * * *
(g) * * *
    (7) In the case of any distributor or reseller that would be in 
violation under paragraph (e)(2) or (f)(2) of this section or any 
wholesale purchaser-consumer or retailer that would be in violation 
under paragraph (e)(1) or (f)(1) of this section for diesel fuel for 
use in motor vehicles which contains visible evidence of the dye 
solvent red 164, the distributor or reseller or wholesale purchaser-
consumer or retailer shall not be deemed in violation if he can:
    (i) Demonstrate that the violation was not caused by him or his 
employee or agent,
    (ii) Demonstrate that the fuel has been supplied, offered for 
supply, transported or available for tax-exempt use as defined under 
Sec. 4082 of the Internal Revenue Code, and
    (iii) Provide evidence from the supplier in the form of 
documentation that the fuel met the applicable standards under 
paragraph (a)(1) of this section for sulfur and cetane index or 
aromatics content for use in motor vehicles.

[FR Doc. 94-17001 Filed 7-13-94; 8:45 am]
BILLING CODE 6560-50-P

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