(a) A motor vehicle diesel fuel small refiner is defined as any person, as defined by 42 U.S.C. 7602(e), who—

(1) Produces diesel fuel at a refinery by processing crude oil through refinery processing units; and

(2) Employed an average of no more than 1,500 people, based on the average number of employees for all pay periods from January 1, 1999, to January 1, 2000; and

(3) Had an average crude oil capacity less than or equal to 155,000 barrels per calendar day (bpcd) for 1999; or

(4) Has been approved by EPA as a small refiner under §80.235 and continues to meet the criteria of a small refiner under §80.225.

(b) A NRLM diesel fuel small refiner is defined as any person, as defined by 42 U.S.C. 7602(e), who—

(1) Produces diesel fuel at a refinery by processing crude oil through refinery processing units;

(2) Employed an average of no more than 1,500 people, based on the average number of employees for all pay periods from January 1, 2002, to January 1, 2003; and

(3) Had an average crude oil capacity less than or equal to 155,000 barrels per calendar day (bpcd) for 2002.

(c) Determine the number of employees and crude oil capacity under paragraphs (a) or (b) of this section, as follows:

(1) The refiner shall include the employees and crude oil capacity of any subsidiary companies, any parent company and subsidiaries of the parent company in which the parent has 50 percent or greater ownership, and any joint venture partners.

(2) For any refiner owned by a governmental entity, the number of employees and total crude oil capacity as specified in paragraph (a) of this section shall include all employees and crude oil production of the government to which the governmental entity is a part.

(3) Any refiner owned and controlled by an Alaska Regional or Village Corporation organized pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601) is not considered an affiliate of such entity, or with other concerns owned by such entity solely because of their common ownership.

(d)

(1) Notwithstanding the provisions of paragraph (a) of this section, a refiner that acquires or reactivates a refinery that was shut down or non-operational between January 1, 1999, and January 1, 2000, may apply for motor vehicle diesel fuel small refiner status in accordance with the provisions of §80.551(c)(1)(ii).

(2) Notwithstanding the provisions of paragraph (b) of this section, a refiner that acquires or reactivates a refinery that was shutdown or non-operational between January 1, 2002, and January 1, 2003, may apply for NRLM diesel fuel small refiner status in accordance with the provisions of §80.551(c)(2)(ii).

(e) The following are ineligible for the small refiner provisions:

(1)

(i) For motor vehicle diesel fuel, refiners with refineries built or started up after January 1, 2000.

(ii) For NRLM diesel fuel, refiners with refineries built or started up after January 1, 2003.

(2)

(i) For motor vehicle diesel fuel, persons who exceed the employee or crude oil capacity criteria under this section on January 1, 2000, but who meet these criteria after that date, regardless of whether the reduction in employees or crude oil capacity is due to operational changes at the refinery or a company sale or reorganization.

(ii) For NRLM diesel fuel, persons who exceed the employee or crude oil capacity criteria under this section on January 1, 2003, but who meet these criteria after that date, regardless of whether the reduction in employees or crude oil capacity is due to operational changes at the refinery or a company sale or reorganization.

(3) Importers.

(4) Refiners who produce motor vehicle diesel fuel or NRLM diesel fuel other than by processing crude oil through refinery processing units.

(f)

(1)

(i) Refiners who qualify as motor vehicle diesel fuel small refiners under this section and subsequently cease production of diesel fuel from processing crude oil through refinery processing units, or employ more than 1,500 people or exceed the 155,000 bpcd crude oil capacity limit after January 1, 2004 as a result of merger with or acquisition of or by another entity, are disqualified as small refiners, except as provided for under paragraph (f)(4) of this section. If disqualification occurs, the refiner shall notify EPA in writing no later than 20 days following this disqualifying event.

(ii) Except as provided under paragraph (f)(3) of this section, any refiner whose status changes under this paragraph shall meet the applicable standards of §80.520 within a period of up to 30 months from the disqualifying event for any of its refineries that were previously subject to the small refiner standards of §80.552, but no later than the May 31, 2010.

(2)

(i) Refiners who qualify as NRLM diesel fuel small refiners under this section and subsequently cease production of diesel fuel from crude oil, or employ more than 1,500 people or exceed the 155,000 bpcd crude oil capacity limit after January 1, 2004 as a result of merger with or acquisition of or by another entity, are disqualified as small refiners, except as provided for under paragraph (f)(4) of this section. If disqualification occurs, the refiner shall notify EPA in writing no later than 20 days following this disqualifying event.

(ii) Except as provided under paragraph (f)(3) of this section, any refiner whose status changes under this paragraph shall meet the applicable standards of §80.510 within a period of up to 30 months of the disqualifying event for any of its refineries that were previously subject to the small refiner standards of §80.552, but no later than the dates specified in §80.554(a) or (b), as applicable.

(3) A refiner may apply to EPA for up to an additional six months to comply with the standards of §80.510 or §80.520 if more than 30 months would be required for the necessary engineering, permitting, construction, and start-up work to be completed. Such applications must include detailed technical information supporting the need for additional time. EPA will base a decision to approve additional time on information provided by the refiner and on other relevant information. In no case will EPA extend the compliance date beyond May 31, 2010 for a motor vehicle diesel fuel small refiner or beyond the dates specified in §80.554(a) or (b), as applicable, for a NRLM diesel fuel small refiner.

(4) Disqualification under paragraphs (f)(1) or (f)(2) of this section shall not apply in the case of a merger between two previously approved small refiners.

(5) During the period of time up to 30 months provided under paragraph (f)(1)(ii) of this section, and any extension provided under paragraph (f)(3) of this section, the refiner may not generate motor vehicle diesel fuel sulfur credits under §80.531(e). During the period of time up to 30 months provided under paragraph (f)(2)(ii) of this section, and any extension provided under paragraph (f)(3) of this section, the refiner may not generate NRLM diesel fuel sulfur credits under §80.535(b) or (d).

(g) Notwithstanding the criteria in paragraph (a) of this section, any small refiner that has been approved by EPA as a small refiner under §80.235 and meets the criteria of paragraph (a)(1) of this section, will be considered a small refiner under this section as well, for as long as they are a small refiner under §80.225. The provisions of paragraph (f) of this section apply to any such refiner.

[66 FR 5136, Jan. 18, 2001, as amended at 69 FR 39177, June 29, 2004; 70 FR 40896, July 15, 2005]