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

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.

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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

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\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.

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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.

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\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.

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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