(a) Prohibited activities. Beginning October 1, 1993 and continuing until the implementation dates for subpart I of part 80 as specified in §80.500, except as provided in 40 CFR 69.51, 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, store, dispense, offer for supply or transport any diesel fuel for use in motor vehicles, unless the diesel fuel:

(1) Has a sulfur percentage, by weight, no greater than 0.05 percent;

(2)

(i) Has a cetane index of at least 40; or

(ii) Has a maximum aromatic content of 35 volume percent; and

(3) Is free of visible evidence of the dye solvent red 164; unless it is used in a manner that is tax-exempt as defined under section 4082 of the Internal Revenue Code (26 U.S.C. 4082).

(b) Determination of compliance.

(1) Any diesel fuel which does not show visible evidence of being dyed with 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.

(2) Compliance with the sulfur, cetane, and aromatics standards in paragraph (a) of this section shall be determined based on the level of the applicable component or parameter, using the sampling methodologies specified in §80.330(b), as applicable, and the appropriate testing methodologies specified in §80.580(a) for sulfur, §80.2(w) for cetane index, and §80.2(z) for aromatic content. Any evidence or information, including the exclusive use of such evidence or information, may be used to establish the level of the applicable component or parameter in the diesel fuel, if the evidence or information is relevant to whether that level would have been in compliance with the standard if the appropriate sampling and testing methodology had been correctly performed. Such evidence may be obtained from any source or location and may include, but is not limited to, test results using methods other than the compliance methods in this paragraph (b), business records, and commercial documents.

(3) Determination of compliance with the requirements of this section other than the standards described in paragraph (a) of this section, and determination of liability for any violation of this section, may be based on information obtained from any source or location. Such information may include, but is not limited to, business records and commercial documents.

(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 section 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 §80.30. Any person that violates paragraph (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 paragraph (a) or (c) of this section shall be determined according to the provisions of §80.5.

[59 FR 35858, July 14, 1994, as amended at 63 FR 49465, Sept. 16, 1998; 66 FR 5135, Jan. 18, 2001]