Subpart G - Exemptions, Hardships, and Special Provisions

§1090.600 General provisions.

(a) Gasoline, diesel fuel, or IMO marine fuel subject to an exemption under this subpart is exempt from the standards and provisions of this part as specified in this subpart.

(b) Fuel that does not meet all the requirements and conditions specified in this subpart for an exemption is subject to all applicable standards and requirements of this part.

§1090.605 National security and military use exemptions.

(a) Fuel, fuel additive, and regulated blendstock that is produced, imported, sold, offered for sale, supplied, offered for supply, stored, dispensed, or transported for use in the following tactical military vehicles, engines, or equipment, including locomotive and marine engines, are exempt from the standards specified in this part:

(1) Tactical military vehicles, engines, or equipment, including locomotive or marine engines, that have an EPA national security exemption from the motor vehicle emission standards under 40 CFR parts 85 or 86, or from the nonroad engine emission standards under 40 CFR parts 89, 92, 94, 1042, or 1068.

(2) Tactical military vehicles, engines, or equipment, including locomotive or marine engines, that are not subject to a national security exemption from vehicle or engine emissions standards specified in paragraph (a)(1) of this section but, for national security purposes (e.g., for purposes of readiness, including training, for deployment overseas), need to be fueled on the same fuel as the vehicles, engines, or equipment that EPA has granted such a national security exemption.

(b) The exempt fuel must meet all the following requirements:

(1) It must be accompanied by PTDs that meet the requirements of subpart L of this part.

(2) It must be segregated from non-exempt fuel at all points in the distribution system.

(3) It must be dispensed from a fuel dispenser stand, fueling truck, or tank that is labeled with the appropriate designation of the fuel.

(4) It must not be used in any vehicles, engines, or equipment, including locomotive and marine engines, other than those specified in paragraph (a) of this section.

[85 FR 78469, Dec. 4, 2020]

§1090.610 Temporary research, development, and testing exemptions.

(a) Requests for an exemption. (1) Any person may receive an exemption from the provisions of this part for fuel used for research, development, or testing (“R&D”) purposes by submitting the information specified in paragraph (c) of this section as specified in §1090.10.

(2) Any person that is performing emissions certification testing for a motor vehicle or motor vehicle engine under 42 U.S.C. 7525 or nonroad engine or nonroad vehicle under 42 U.S.C. 7546 is exempt from the provisions of this part for the fuel they are using for emissions certification testing if they have an exemption under 40 CFR parts 85 and 86 to perform such testing.

(b) Criteria for an R&D exemption. For an R&D exemption to be granted, the person requesting an exemption must meet all the following conditions:

(1) Demonstrate that the exemption is for an appropriate R&D purpose.

(2) Demonstrate that an exemption is necessary.

(3) Design an R&D program that is reasonable in scope.

(4) Have a degree of control consistent with the purpose of the program and EPA's monitoring requirements.

(5) Meet the requirements specified in paragraphs (c) and (d) of this section.

(c) Information required to be submitted. To aid in demonstrating each of the elements in paragraph (b) of this section, the person requesting an exemption must include, at a minimum, all the following information:

(1) A concise statement of the purpose of the program demonstrating that the program has an appropriate R&D purpose.

(2) An explanation of why the stated purpose of the program is unable to be achieved in a practicable manner without meeting the requirements of this part.

(3) A demonstration of the reasonableness of the scope of the program, including all the following:

(i) An estimate of the program's duration in time (including beginning and ending dates).

(ii) An estimate of the maximum number of vehicles, engines, and equipment involved in the program, and the number of miles and engine hours that will be accumulated on each.

(iii) The manner in which the information on vehicles, engines, or equipment used in the program will be recorded and made available to EPA upon request.

(iv) The quantity of the fuel that does not comply with the requirements of this part, as applicable.

(v) The specific applicable standard(s) of this part that would apply to the fuel expected to be used in the program.

(4) With regard to control, a demonstration that the program affords EPA a monitoring capability, including all the following:

(i) A description of the technical and operational aspects of the program.

(ii) The site(s) of the program (including facility name, street address, city, county, state, and ZIP code).

(iii) The manner in which information on vehicles, engines, and equipment used in the program will be recorded and made available to EPA upon request.

(iv) The manner in which information on the fuel used in the program (including quantity, fuel properties, name, address, telephone number, and contact person of the supplier, and the date received from the supplier) will be recorded and made available to EPA upon request.

(v) The manner in which the party will ensure that the fuel will be segregated from fuel that meets the requirements of subparts C and D of this part, as applicable, and how fuel dispensers will be labeled to ensure that the fuel is not dispensed for use in motor vehicles or nonroad engines, vehicles, or equipment, including locomotive or marine engines, that are part of the R&D test program.

(vi) The name, business address, telephone number, and title of the person(s) in the organization requesting an exemption from whom further information on the application may be obtained.

(vii) The name, business address, telephone number, and title of the person(s) in the organization requesting an exemption who is responsible for recording and making available the information specified in this paragraph (c), and the location where such information will be maintained.

(viii) Any other information requested by EPA to determine whether the test program satisfies the criteria of paragraph (b) of this section.

(d) Additional requirements. (1) The PTDs associated with fuel must comply with the requirements of subpart L of this part.

(2) The fuel must be designated as exempt fuel by the fuel manufacturer or supplier, as applicable.

(3) The fuel must be kept segregated from non-exempt fuel at all points in the distribution system.

(4) The fuel must not be sold, distributed, offered for sale or distribution, dispensed, supplied, offered for supply, transported to or from, or stored by a retail outlet or WPC facility, unless the WPC facility is associated with the R&D program that uses the fuel.

(5) At the completion of the program, any emission control systems or elements of design that are damaged or rendered inoperative must be replaced on vehicles remaining in service or the responsible person will be liable for a violation of 42 U.S.C. 7522(a)(3), unless sufficient evidence is supplied that the emission controls or elements of design were not damaged.

(e) Approval of exemption. EPA may grant an R&D exemption upon a demonstration that the requirements of this section have been met. The R&D exemption approval may include such terms and conditions as EPA determines necessary to monitor the exemption and to carry out the purposes of this part, including restoration of emission control systems.

(1) The volume of fuel subject to the approval must not exceed the estimated amount in paragraph (c)(3)(iv) of this section, unless EPA grants an approval for a greater amount.

(2) Any exemption granted under this section will expire at the completion of the test program or 1 year from the date of approval, whichever occurs first, and may only be extended upon re-application consistent with the requirements of this section.

(3) If any information required by paragraph (c) of this section changes after approval of the exemption, the responsible person must notify EPA in writing immediately.

(f) Notification of completion. Any person with an approved exemption under this section must notify EPA in writing within 30 days after completion of the R&D program.

[85 FR 78469, Dec. 4, 2020]

§1090.615 Racing and aviation exemptions.

(a) Fuel, fuel additive, and regulated blendstock that is used in aircraft, or racing vehicles or racing boats in sanctioned racing events, is exempt from the standards in subparts C and D of this part if all the requirements of this section are met.

(b) The fuel, fuel additive, or regulated blendstock is identified on PTDs and on any fuel dispenser from which the fuel, fuel additive, or regulated blendstock is dispensed as restricted for use either in aircraft or in racing motor vehicles or racing boats that are used only in sanctioned racing events.

(c) The fuel, fuel additive, or regulated blendstock is completely segregated from all other non-exempt fuel, fuel additive, or regulated blendstock throughout production, distribution, and sale to the ultimate consumer.

(d) The fuel, fuel additive, or regulated blendstock is not made available for use as gasoline or diesel fuel subject to the standards in subparts C and D of this part, as applicable, or dispensed for use in motor vehicles or nonroad engines, vehicles, or equipment, including locomotive or marine engines, except for those used only in aircraft or in sanctioned racing events.

[85 FR 78469, Dec. 4, 2020]

§1090.620 Exemptions for Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.

Fuel that is produced, imported, sold, offered for sale, supplied, offered for supply, stored, dispensed, or transported for use in the territories of Guam, American Samoa, or the Commonwealth of the Northern Mariana Islands, is exempt from the standards in subparts C and D of this part if all the following requirements are met:

(a) The fuel is designated by the fuel manufacturer as gasoline, diesel fuel, or ECA marine fuel for use only in Guam, American Samoa, or the Commonwealth of the Northern Mariana Islands.

(b) The fuel is used only in Guam, American Samoa, or the Commonwealth of the Northern Mariana Islands.

(c) The fuel is accompanied by PTDs that meet the requirements of subpart L of this part.

(d) The fuel is completely segregated from non-exempt fuel at all points from the point the fuel is designated as exempt fuel for use only in Guam, American Samoa, or the Commonwealth of the Northern Mariana Islands, while the exempt fuel is in the United States (including an ECA or an ECA associated area under 40 CFR 1043.20) but outside these territories.

[85 FR 78469, Dec. 4, 2020]

§1090.625 Exemptions for California gasoline and diesel fuel.

(a) California gasoline and diesel fuel exemption. California gasoline or diesel fuel that complies with all the requirements of this section is exempt from all other provisions of this part.

(b) California gasoline and diesel fuel requirements. (1) Each batch of California gasoline or diesel fuel must be designated as such by its fuel manufacturer.

(2) Designated California gasoline or diesel fuel must be segregated from fuel that is not California gasoline or diesel fuel at all points in the distribution system.

(3) Except for as specified in paragraph (d) or (e) of this section, designated California gasoline or diesel fuel must ultimately be used only in the state of California.

(4) Transferors and transferees of California gasoline or diesel fuel produced outside the state of California must meet the PTD requirements of subpart L of this part.

(5) Each transferor and transferee of California gasoline or diesel fuel produced outside the state of California must maintain copies of the PTDs as specified in subpart M of this part.

(6) California gasoline or diesel fuel must not be used in any part of the United States outside of the state of California unless the manufacturer or distributor recertifies or redesignates the batch of California gasoline or diesel fuel as specified in paragraph (d) or (e) of this section.

(c) Use of California test methods and offsite sampling procedures. For any gasoline or diesel fuel that is not California gasoline or diesel fuel and that is either produced at a facility located in the state of California or is imported from outside the United States into the state of California, the manufacturer must do one of the following:

(1) Comply with the sampling and testing provisions in subpart N of this part, as applicable.

(2) Sample and test using methods approved in Title 13 of the California Code of Regulations.

(3) Sample and test per a current and valid protocol agreement between the fuel manufacturer and the California Air Resources Board or by Executive Order from the California Air Resources Board. Such protocols or Executive Orders must be provided to EPA upon request.

(d) California gasoline used outside of California. California gasoline may be used in any part of the United States outside of the state of California if the manufacturer or distributor of the California gasoline does one of the following:

(1) Recertifies the California gasoline as gasoline under this part and includes the recertified gasoline in their average standard compliance calculations.

(2) Designates the California gasoline as gasoline under this part without recertification and does all the following:

(i) Demonstrates that the fuel meets all applicable requirements for California reformulated gasoline under Title 13 of the California Code of Regulations.

(ii) Properly redesignates the fuel under §1090.1010(b)(2)(vi).

(iii) Generates PTDs under subpart L of this part.

(iv) Keeps records under subpart M of this part.

(v) Does not include the California gasoline in their average standard compliance calculations.

(e) California diesel used outside of California. California diesel fuel may be used in any part of the United States outside of the state of California and is deemed to meet the standards in subpart D of this part without recertification if the fuel designated as California diesel fuel meets all applicable requirements for diesel fuel under Title 13 of the California Code of Regulations and the manufacturer or distributor of the fuel does all the following:

(1) The manufacturer or distributor properly redesignates the fuel under §1090.1015(b)(3)(iii).

(2) The manufacturer or distributor generates PTDs under subpart L of this part.

(3) The manufacturer or distributor keeps records under subpart M of this part.

[85 FR 78469, Dec. 4, 2020]

§1090.630 Exemptions for Alaska, Hawaii, Puerto Rico, and the U.S. Virgin Islands summer gasoline.

Summer gasoline that is produced, imported, sold, offered for sale, supplied, offered for supply, stored, dispensed, or transported for use in the Alaska, Hawaii, Puerto Rico, or the U.S. Virgin Islands, is exempt from the RVP standards in §1090.215 if all the following requirements are met:

(a) The summer gasoline is designated by the fuel manufacturer as summer gasoline for use only in Alaska, Hawaii, Puerto Rico, or the U.S. Virgin Islands.

(b) The summer gasoline is used only in Alaska, Hawaii, Puerto Rico, or the U.S. Virgin Islands.

(c) The summer gasoline is accompanied by PTDs that meet the requirements of subpart L of this part.

(d) The summer gasoline is completely segregated from non-exempt gasoline at all points from the point the summer gasoline is designated as exempt fuel for use only in Alaska, Hawaii, Puerto Rico, or the U.S. Virgin Islands, while the exempt summer gasoline is in the United States but outside these states or territories.

[85 FR 78469, Dec. 4, 2020]

§1090.635 Refinery extreme unforeseen hardship exemption.

(a) In appropriate extreme, unusual, and unforeseen circumstances (e.g., circumstances like a natural disaster or refinery fire; not financial or supplier difficulties) that are clearly outside the control of the refiner and that could not have been avoided by the exercise of prudence, diligence, and due care, EPA may permit a refiner, for a brief period, to distribute fuel that is exempt from the standards in subparts C and D of this part if all the following requirements are met:

(1) It is in the public interest to do so (e.g., distribution of the nonconforming fuel will not damage vehicles or engines and is necessary to meet projected temporary shortfalls in the supply of the fuel in a state or region of the United States for which the shortfall is unable to otherwise be compensated for).

(2) The refiner exercised prudent planning and was not able to avoid the violation and has taken all reasonable steps to minimize the extent of the nonconformity.

(3) The refiner shows how compliance will be achieved as expeditiously as possible.

(4) The refiner agrees to make up any air quality detriment associated with the nonconforming fuel, where practicable.

(5) The refiner pays to the U.S. Treasury an amount equal to the economic benefit of the nonconformity minus the amount expended under paragraph (a)(4) of this section, in making up the air quality detriment.

(b) Hardship applications under this section must be submitted to EPA as specified in §1090.10 and must contain a letter signed by the RCO, or their delegate, stating that the information contained in the application is true and accurate to the best of their knowledge.

[85 FR 78469, Dec. 4, 2020]

§1090.640 Exemptions from the gasoline deposit control requirements.

(a) Gasoline that is used to produce E85 is exempt from the gasoline deposit control requirements in §1090.260.

(b) Any person that uses the exemption in paragraph (a) of this section must keep records to demonstrate that such exempt gasoline was used to produce E85 and was not distributed from a terminal for use as gasoline.

[85 FR 78469, Dec. 4, 2020]

§1090.645 Exemption for exports of fuels, fuel additives, and regulated blendstocks.

(a) Fuel, fuel additive, and regulated blendstock that is exported for sale outside of the United States is exempt from the standards in subparts C and D of this part if all the following requirements are met:

(1) The fuel, fuel additive, or regulated blendstock is designated for export by the fuel manufacturer, fuel additive manufacturer, or regulated blendstock producer.

(2) The fuel, fuel additive, or regulated blendstock designated for export is accompanied by PTDs that meet the requirements of subpart L of this part.

(3) The fuel manufacturer, fuel additive manufacturer, or regulated blendstock producer keeps records that demonstrate that the fuel, fuel additive, or regulated blendstock was ultimately exported from the United States.

(4) The fuel, fuel additive, or regulated blendstock is completely segregated from non-exempt fuels, fuel additives, and regulated blendstocks from the point the fuel, fuel additive, or regulated blendstock is designated for export to the point where it is ultimately exported from the United States.

(5) Fuel, fuel additive, or regulated blendstock certified and designated for export may be certified for use in the United States if all the applicable requirements of this part are met.

(b) Any fuel dispensed from a retail outlet within the geographic boundaries of the United States is not exempt under this section.

[85 FR 78469, Dec. 4, 2020]

§1090.650 Distillate global marine fuel exemption.

(a) The standards of subpart D of this part do not apply to distillate global marine fuel that is produced, imported, sold, offered for sale, supplied, offered for supply, stored, dispensed, or transported for use in steamships or Category 3 marine vessels when operating outside of ECA boundaries.

(b) Exempt distillate global marine fuel under paragraph (a) of this section must meet all the following requirements:

(1) The fuel must not exceed 0.50 weight percent sulfur (5,000 ppm).

(2) The fuel must be accompanied by PTDs as specified in §1090.1115.

(3) The fuel must be designated as specified in §1090.1015.

(4) The fuel must be segregated from non-exempt fuel at all points in the distribution system.

(5) The fuel must not be used in vehicles, engines, or equipment other than those referred to in paragraph (a) of this section.

(c)(1) Fuel that does not meet the requirements specified in paragraph (b) of this section is subject to the standards, requirements, and prohibitions that apply for ULSD under this part.

(2) Any person who produces, imports, sells, offers for sale, supplies, offers for supply, stores, dispenses, or transports distillate global marine fuel without meeting the applicable recordkeeping requirements in subpart M of this part must not claim the fuel is exempt from the standards, requirements, and prohibitions that apply for ULSD under this part.

[85 FR 78469, Dec. 4, 2020]