1

Potential Regulatory Text for Barley Ethanol Pathway Determination

***************************************

For the reasons set forth in the preamble, 40 CFR part 80 is amended as follows:

PART 80 — REGULATION OF FUELS AND FUEL ADDITIVES

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

Authority: 42 U.S.C. 7414, 7521(1), 7545 and 7601(a).

2. Section 80.1426 is amended by adding three new rows at the end of Table 1 in 

paragraph (f)(1) and by adding paragraph (f)(14) to read as follows:

§80.1426 How are RINs generated and assigned to batches of renewable fuel by 

renewable fuel producers or importers? 

* * * *

(f) * * *

(1) * * *

Table 1 to §80.1426—Applicable D Codes for Each Fuel Pathway for Use in 

Generating RINs

Modified to add:

* * * * * * *

T Ethanol Barley Dry mill process yielding co-product distillers grains 

with solubles (which may be up to 100% dry), and 

using natural gas for process energy and grid 

electricity

6

U Ethanol Barley Dry mill process using no more than 30,700 Btu of 

natural gas for process energy, no more than 4,200 

Btu of biogas from landfills, waste treatment plants, 

barley hull digesters, or waste digesters or biomass 

from barley hulls, and no more than 0.84 kWh of 

5
2

electricity from the grid for the entire facility, per 

gallon of ethanol produced calculated on a per-batch 

basis. 

V Ethanol Barley Dry mill process, using no more than 36,800 Btu 

natural gas for process energy and for on-site 

production of all electricity used at the site other than 

up to 0.19 kWh of electricity from the grid, per gallon 

of ethanol produced calculated on a per batch basis 

5

* * * * *

(14) Unless otherwise specified, in order for facilities to satisfy the requirements of either 

of the two advanced biofuel barley pathways all of the following conditions (in addition 

to other applicable requirements) apply. 

(i) The quantity of natural gas used at the site must be measured and recorded by 

continuous metering.

(ii) The quantity of electricity used at the site that is purchased from the grid must be 

measured and recorded by continuous metering. 

(iii) Any quantity of biogas used at the site for process energy must be sourced from 

landfills, waste treatment plants, barley hull digesters and/or waste digesters and must be 

measured and recorded by continuous metering.

(iv) Any quantity of barley hulls used at the site for process energy must be measured and 

recorded by continuous metering.

(v) For any biogas directly transported to the renewable fuel production facility without 

being placed in a commercial distribution system, all of the following conditions must be 

met:
3

(A) The producer has entered into a written contract for the procurement of biogas that 

specifies the volume of biogas, its heat content, and that the biogas must be derived from 

a landfill, waste treatment plant, barley hull digester and/or waste digester. 

(B) The volume of biogas was sold to the renewable fuel production facility, and to no 

other facility.

(C) The volume of biogas injected into the pipeline and the volume of gas used at the 

renewable fuel production facility are measured by continuous metering.

(vi) For any biogas that has been gathered, processed and injected into a common carrier 

pipeline for sale to the renewable fuel production facility, all of the following conditions 

must be met:

(A) The producer has entered into a written contract for the procurement of biogas that 

specifies a specific volume of biogas with a specific heat content, and that the biogas 

must be derived from a landfill, waste treatment plant, barley hull digester and/or waste 

digester. 

(B) The volume of biogas was sold to the renewable fuel production facility, and to no 

other facility.

(C) The volume of biogas that is withdrawn from the pipeline is withdrawn in a manner 

and at a time consistent with the transport of fuel between the injection and withdrawal 

points.

(D) The volume and heat content of biogas injected into the pipeline and the volume of 

gas used at the renewable fuel production facility are measured by continuous metering.

(E) The common carrier pipeline into which the biogas is placed ultimately serves the 

producer's renewable fuel production facility.
4

(vii) No party has generated RINs based on any or all of the contracted volume of biogas 

sold to the renewable fuel production facility.

* * * * *

3. Section 80.1450 is amended by adding paragraph (b)(1)(x) to read as follows:

§ 80.1450 What are the registration requirements under the RFS program?

* * * *

(b) * * *

(1) * * *

(x)(A) For a producer of ethanol from barley or a foreign ethanol producer making 

product from barley, provide a plan that includes the following information:

(1) Locations from which any biogas used at the facility was produced or extracted.

(2) Name of suppliers of all biogas used at the facility. 

(3) An affidavit from any biogas supplier stating its intent to supply biogas to the 

renewable fuel producer or foreign ethanol producer, the quantity and energy content of 

the biogas that it intends to provide to the renewable fuel producer or foreign ethanol 

producer, and that the biogas will be derived solely from landfills, waste treatment plants, 

barley hull digesters and/or waste digesters.

(4) If the producer intends to generate advanced biofuel RINs, estimates of the total 

amount of natural gas used for process energy, the total amount of biogas or barley hulls 

used for process energy, the total amount of electricity used from the grid, the total 
5

amount of ethanol produced, and a calculation of the amount of natural gas energy, 

biogas or barley hull energy, and electricity per gallon of ethanol produced. 

(5) If the producer intends to generate advanced biofuel RINs using pathway U a 

description of how the facility intends to demonstrate and document that not more than 

30,700 Btu of natural gas, not more than 4,200 Btu of biogas from landfills, waste 

treatment plants, barley hull digesters, or waste digesters or biomass from barley hulls, 

and not more than 0.84 kWh of grid electricity is used per gallon of ethanol produced, 

calculated on a per batch basis at the time of RIN generation. 

(6) If the producer intends to generate advanced biofuel RINs using pathway V a 

description of how the facility intends to demonstrate and document that not more than 

36,800 Btu of natural gas and not more than 0.19 kWh of grid electricity is used per 

gallon of ethanol produced, calculated on a per batch basis at the time of RIN generation. 

(7) Mass and Energy balance.

(8) Quantity of co-products produced in each of the last 5 years.

(B) [Reserved]

* * * * *

4. Section 80.1451 is amended as follows:

a. By removing paragraph (b)(1)(ii)(S)(5).

b. By redesignating paragraph (b)(1)(ii)(T) as (b)(1)(ii)(U).

c. By adding a new paragraph (b)(1)(ii)(T).

§ 80.1451 What are the reporting requirements under the RFS program?
6

* * * *

(b) * * *

(1) * * *

(ii) * * *

(T) Producers of advanced biofuel using barley as a feedstock shall report all of the 

following for each batch of fuel:

(1) The total amount of natural gas that is used at the site for process energy, based on 

metering, in Btu (lower heating value). 

(2) Any amount of biogas from landfills, waste treatment plants, barley hull digesters, or 

waste digesters that is used at the site for process energy, based on metering, in Btu 

(lower heating value). 

(3) Any amount of barley hulls used at the site for process energy, based on metering, in 

Btu (lower heating value). 

(4) The total amount of electricity that is purchased from the grid and used at the site, 

based on metering, in kWh. 

(5) Total amount of ethanol produced. 

(6) Calculation of the amount of natural gas energy used at the site per gallon of ethanol 

produced in each batch.

(7) Calculation of the amount of any biogas from landfills, waste treatment plants, barley 

hull digesters, or waste digesters or biomass from barley hull energy used for process 

energy at the site per gallon of ethanol produced in each batch. 

(8) Calculation of the amount of grid electricity used at the site per gallon of ethanol 

produced in each batch.
7

(9) The batch-RIN number as defined in §80.1426(d)(1) or the gallon-RIN numbers as 

defined in §80.1425 of the batch being reported.

* * * * *

5. Section 80.1454 is amended as follows:

a. By revising paragraph (k)(1).

b. By revising paragraph (k)(2) introductory text.

c. By adding a new paragraph (k)(3).

§ 80.1454 What are the recordkeeping requirements under the RFS program?

* * * *

(k)(1) Biogas and electricity in pathways involving feedstocks other than barley or grain 

sorghum. A renewable fuel producer that generates RINs for biogas or electricity 

produced from renewable biomass (renewable electricity) for fuels that are used for 

transportation pursuant to §80.1426(f)(10) and (11), or that uses process energy from 

biogas to produce renewable fuel for which RINs are generated pursuant to 

§80.1426(f)(12) shall keep all of the following additional records, as appropriate:

(i) Contracts and documents memorializing the sale (including transfer of title and all 

associated environmental attributes) and movement of biogas or renewable electricity for 

use as transportation fuel from the point of biogas or renewable electricity generation to 

the facility that either uses or sells the biogas or renewable electricity as transportation 

fuel. 

(ii) Contracts and documents memorializing the purchase of biogas and all associated 

environmental attributes for use as process energy to make renewable fuel.
8

(iii) Documents demonstrating the volume and energy content of biogas, or kilowatt 

hours of renewable electricity that was delivered to a facility which sells or uses the fuel 

for transportation purposes.

(iv) Documents demonstrating the volume and energy content of biogas, or kilowatt 

hours of renewable electricity that was placed into a common carrier pipeline (for 

biogas) or transmission line (for renewable electricity) either for use at the renewable fuel 

facility to make biofuel (for biogas) or for ultimate use as transportation fuel (for biogas 

or renewable electricity).

(v) Documents demonstrating the volume and energy content of biogas, or kilowatt hours 

of renewable electricity, relied upon under § 80.1426(f)(12) at the point of distribution.

(vi) Affidavits from the biogas or renewable electricity producer and all parties that held 

title to the biogas or renewable electricity confirming that title and environmental 

attributes of the biogas or renewable electricity relied upon under § 80.1426(f)(10) and 

(11) were used for transportation purposes only, and that the environmental attributes of 

the biogas relied upon under § 80.1426(f)(12) were used for process heat at the renewable 

fuel producer's facility, and for no other purpose. The renewable fuel producer shall 

create and/or obtain these affidavits at least once per calendar quarter.

(vii) The biogas or renewable electricity producer's Compliance Certification required 

under Title V of the Clean Air Act.

(viii) Such other records as may be requested by the Administrator. 

(2) Biogas and electricity in pathways involving grain sorghum as feedstock. A 

renewable fuel producer that produces fuel pursuant to a pathway that uses grain sorghum 

as a feedstock shall keep all of the following additional records, as appropriate:
9

* * * * *

(3) Biogas, biomass, natural gas, and electricity in pathways involving barley as 

feedstock. A renewable fuel producer that produces fuel pursuant to a pathway that uses 

barley as a feedstock shall keep all of the following additional records, as appropriate:

(i) Contracts and documents memorializing the purchase and sale of any biogas, the 

source of the biogas (geographic location and whether from landfill, waste treatment 

plant, barley hull digester, or waste digester), and the transfer of biogas from the point of 

generation to the ethanol production facility.

(ii) If one of the advanced biofuel pathways is used, documents describing, on a per batch 

basis, the total amount (Btu) of natural gas, total amount (Btu) of any biogas (from 

landfills, waste treatment plants, barley hull digesters, or waste digesters), total amount 

(Btu) of any barley hulls used, the total kilowatt-hours (kWh) of electricity used from the 

grid, and the total Btu of natural gas, Btu of biogas, Btu of barley hulls, and kWh of grid 

electricity used on a per gallon basis for the volume in each batch.. 

(iii) Affidavits from the producer of any biogas used at the facility, and all parties that 

held title to the biogas, confirming that title and environmental attributes of the biogas 

were used for producing ethanol at the renewable fuel production facility and for no other 

purpose. The renewable fuel producer shall obtain these affidavits at least once per 

calendar quarter. 

(iv) The biogas producer's Compliance Certification required under Title V of the Clean 

Air Act.

(v) Such other records as may be requested by the Administrator.

* * * * *
10