Monday, 

May 10, 2010 

Part IV 

Environmental 

Protection Agency 

40 CFR Part 80 

Regulation of Fuels and Fuel Additives: 

Modifications to Renewable Fuel Standard 

Program; Final Rule and Proposed Rule 

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26026 Federal Register / Vol. 75, No. 89 / Monday, May 10, 2010 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 80 

[EPA–HQ–OAR–2005–0161; FRL–9147–6] 

RIN 2060–AQ31 

Regulation of Fuels and Fuel 

Additives: Modifications to Renewable 

Fuel Standard Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to amend certain of the 

Renewable Fuel Standard program 

regulations published on March 26, 

2010, that are scheduled to take effect 

on July 1, 2010 (the ‘‘RFS2 regulations’’). 

Following publication of the RFS2 

regulations, promulgated in response to 

the requirements of the Energy 

Independence and Security Act of 2007, 

EPA discovered some technical errors 

and areas within the final RFS2 

regulations that could benefit from 

clarification or modification. This direct 

final rule amends the RFS2 regulations 

to make the appropriate corrections, 

clarifications, and modifications. 

DATES: This direct final rule is effective 

on July 1, 2010 without further notice, 

except to the extent that EPA receives 

adverse comment by June 9, 2010 or 

receives a request for a public hearing 

by May 25, 2010. If EPA receives 

adverse comment or a request for a 

hearing, we will publish a timely 

withdrawal in the Federal Register 

informing the public that the 

amendment, paragraph, or section of the 

rule on which adverse comment or a 

hearing request were received will not 

take effect. If a public hearing is 

requested, we will publish a notice in 

the Federal Register announcing the 

date and location of the hearing at least 

14 days prior to the hearing. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2005–0161, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• E-mail: a-and-r-docket@epa.gov, 

Attention Air and Radiation Docket ID 

No. EPA–HQ–OAR–2005–0161. 

• Mail: Air and Radiation Docket, 

Docket No. EPA–HQ–OAR–2005–0161, 

Environmental Protection Agency, Mail 

Code: 6406J, 1200 Pennsylvania Ave., 

NW., Washington, DC 20460. Please 

include a total of 2 copies. 

• Hand Delivery: EPA Docket Center, 

EPA/DC, EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC, 20460, Attention Air and Radiation 

Docket, ID No. EPA–HQ–OAR–2005– 

0161. Such deliveries are only accepted 

during the Docket’s normal hours of 

operation, and special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2005– 

0161. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov website is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket, EPA/DC, 

EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Air 

and Radiation Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: 

Megan Brachtl, Compliance and 

Innovative Strategies Division, Office of 

Transportation and Air Quality, Mail 

Code: 6405J, U.S. Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue, NW., 20460; telephone 

number: (202) 343–9473; fax number: 

(202) 343–2802; e-mail address: 

brachtl.megan@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Why is EPA using a direct final rule? 

EPA is publishing this rule without a 

prior proposed rule because we view 

this as a non-controversial action and 

anticipate no adverse comment. 

However, in the ‘‘Proposed Rules’’ 

section of today’s Federal Register, we 

are publishing a separate document that 

will serve as the proposal to adopt the 

provisions in this direct final rule on 

which adverse comments or a hearing 

request are filed. We will not institute 

a second comment period on this action. 

Any parties interested in commenting 

must do so at this time. For further 

information about commenting on this 

rule, see the ADDRESSES section of this 

document. 

If EPA receives adverse comment or a 

request for hearing on any portion of 

this rule, we will publish a timely 

withdrawal in the Federal Register 

informing the public that the portion of 

the rule on which adverse comment or 

a hearing request was received will not 

take effect. Any distinct amendment, 

paragraph, or section of today’s rule for 

which we do not receive adverse 

comment or a hearing request will 

become effective on the date set out 

above, notwithstanding any adverse 

comment or hearing request on any 

other distinct amendment, paragraph, or 

section of this rule. We will address all 

public comments in any subsequent 

final rule based on the proposed rule. 

II. Does this action apply to me? 

Entities potentially affected by this 

action include those involved with the 

production, distribution and sale of 

transportation fuels, including gasoline 

and diesel fuel, or renewable fuels such 

as ethanol and biodiesel. Regulated 

categories and entities affected by this 

action include: 

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Federal Register / Vol. 75, No. 89 / Monday, May 10, 2010 / Rules and Regulations 26027 

Category NAICS codes a SIC codes b Examples of potentially regulated parties 

Industry ........................ 324110 2911 Petroleum refiners, importers. 

Industry ........................ 325193 2869 Ethyl alcohol manufacturers. 

Industry ........................ 325199 2869 Other basic organic chemical manufacturers. 

Industry ........................ 424690 5169 Chemical and allied products merchant wholesalers. 

Industry ........................ 424710 5171 Petroleum bulk stations and terminals. 

Industry ........................ 424720 5172 Petroleum and petroleum products merchant wholesalers. 

Industry ........................ 454319 5989 Other fuel dealers. 

a North American Industry Classification System (NAICS). 

bStandard Industrial Classification (SIC) system code. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. This table lists 

the types of entities that EPA is now 

aware could be potentially regulated by 

this action. Other types of entities not 

listed in the table could also be 

regulated. To determine whether your 

entity is regulated by this action, you 

should carefully examine the 

applicability criteria of Part 80, subparts 

D, E and F of title 40 of the Code of 

Federal Regulations. If you have any 

question regarding applicability of this 

action to a particular entity, consult the 

person in the preceding FOR FURTHER

INFORMATION CONTACT section above. 

III. What should I consider as I prepare 

my comments for EPA? 

A. Submitting CBI. Do not submit this 

information to EPA through http:// 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD ROM that 

you mail to EPA, mark the outside of the 

disk or CD ROM as CBI and then 

identify electronically within the disk or 

CD ROM the specific information that is 

claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

B. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information 

and/or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

C. Docket Copying Costs. You may be 

charged a reasonable fee for 

photocopying docket materials, as 

provided in 40 CFR part 2. 

IV. Renewable Fuel Standard (RFS2) 

Program Amendments 

EPA is taking direct final action to 

amend certain of the Renewable Fuel 

Standard regulations published on 

March 26, 2010, at 75 FR 14670 (the 

‘‘RFS2 regulations’’) that are scheduled 

to take effect on July 1, 2010. Following 

publication of the RFS2 regulations, 

EPA discovered some technical errors 

and areas that could benefit from 

clarification or modification. As a result, 

we are making the following 

amendments to the RFS2 regulations at 

40 CFR part 80, subpart M. 

A. Summary of Amendments 

Below is a table listing the provisions 

that we are amending. Many of the 

amendments address grammatical or 

typographical errors or provide 

clarification of language contained in 

the final RFS2 regulations. A few 

amendments are being made in order to 

correct regulatory language that 

inadvertently misrepresented our intent 

as reflected in the preamble to the final 

RFS2 regulations. We have provided 

additional explanation for several of 

these amendments in the sections IV.B 

through IV.M below. 

RFS2 PROGRAM AMENDMENTS

Section Description 

80.1401 ................................................................... • Corrected typographical errors in the definitions of ‘‘advanced biofuel’’ and ‘‘forestland.’’ 

• Deleted definition of ‘‘fractionation of feedstocks’’ and added definitions of ‘‘corn oil fractionation,’’ ‘‘membrane separation,’’ and ‘‘raw starch hydrolysis’’ to be consistent with 

terms listed as advanced technologies in Table 2 to § 80.1426. See Section IV.B. 

• Deleted definition of ‘‘yard waste,’’ since the term ‘‘separated yard waste’’ is defined in the 

context of § 80.1426(f)(5)(i)(A). 

• Added definition of ‘‘actual peak capacity’’ (moved from § 80.1403(a)(3)) and revised definition to clarify that actual peak capacity for facilities that commenced construction prior to 

December 19, 2007, but that did not operate prior to 2008, should be based on any calendar year after startup during the first three years of operation. This definition was also 

revised to clarify that for facilities that commenced construction after December 19, 2007 

but before January 1, 2010, that are fired with natural gas, biomass, or a combination 

thereof, the actual peak capacity is based on any calendar year after startup during the 

first three years of operation. 

• Added definition of ‘‘baseline volume’’ (moved from § 80.1403(a)(3)). See Section IV.C. 

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26028 Federal Register / Vol. 75, No. 89 / Monday, May 10, 2010 / Rules and Regulations 

RFS2 PROGRAM AMENDMENTS—Continued 

Section Description 

• Added definition of ‘‘foreign ethanol producer’’ to describe foreign parties that produce ethanol for use in transportation fuel, heating oil, or jet fuel in the United States. See Section 

IV.D. 

• Added definition of ‘‘permitted capacity’’ (moved from 80.1403(a)(3)) and revised definition 

to clarify the dates before which permits used to establish a facility’s permitted capacity 

must have been issued or revised. See Section IV.E. 

• Added definition of ‘‘renewable electricity’’ to clarify that electricity must meet the definition 

of renewable fuel in order to qualify for RINs. 

• Revised definition of ‘‘biogas’’ to clarify that biogas must meet the definition of renewable 

fuel in order to qualify for RINs. 

• Revised definition of ‘‘combined heat and power’’ to clarify meaning. See Section IV.B. 

• Revised definition of ‘‘corn oil extraction’’ to clarify that ‘‘DGS’’ means ‘‘distillers grains and 

solubles.’’ See Section IV.B. 

• Revised definition of ‘‘exporter’’ to clarify that exported fuels must be exported from the 

contiguous 48 states or Hawaii. 

• Revised definition of ‘‘naphtha’’ to clarify that it can be either a blendstock or fuel blending 

component and need not be renewable fuel. See Section IV.F. 

• Revised definition of ‘‘non-ester renewable diesel’’ to clarify that it must be able to be 

used in an engine designed to operate on conventional diesel fuel, or be heating oil or jet 

fuel, and that it may also be known as renewable diesel. Also deleted requirement that 

non-ester renewable diesel be registered under 40 CFR part 79 for consistency with other 

definitions in § 80.1401. 

• Revised definitions of ‘‘pastureland’’ and ‘‘pre-commercial thinnings’’ to clarify meaning. 

• Revised definition of ‘‘Renewable Identification Number (RIN)’’ to clarify that a gallon-RIN 

represents a gallon of renewable fuel used for compliance with renewable volume obligations under § 80.1427. 

• Revised definition of ‘‘transportation fuel’’ to clarify that fuel used in ocean-going vessels is 

not transportation fuel under Subpart M. 

80.1403(a)(1) and (a)(2); removed (a)(3) .............. Moved definitions of ‘‘baseline volume,’’ ‘‘permitted capacity,’’ and ‘‘actual peak capacity’’ to 

§ 80.1401 to consolidate with other definitions. 

80.1403(c)(2) .......................................................... Revised to require that construction of a grandfathered renewable fuel production facility for 

which construction commenced prior to December 19, 2007, be complete by December 

19, 2010, rather than within 36 months from the date of commencement of construction. 

See Section IV.G. 

80.1405(c) .............................................................. Revised definition of ‘‘RFVCB,i’’ to clarify that the volume of cellulosic biofuel used to calculate the annual standard for cellulosic biofuel will either be the statutory volume or the 

adjusted volume in the event that EPA waives a portion of the statutory volume requirement. 

80.1406(c)(1) .......................................................... Revised to clarify that, unless otherwise excepted, when demonstrating compliance with the 

RFS2 regulations on an aggregate basis, an obligated party must include all of the refineries that it operates. 

80.1406(f) ............................................................... Revised to clarify that all joint owners of a gasoline or diesel refinery or import facility are 

subject to the liability provisions of § 80.1461(d). 

80.1415(a)(1) .......................................................... Corrected references to paragraphs that describe gallon equivalents for biogas and electricity. 

80.1415(a)(2) .......................................................... Revised to clarify that the equivalence value represents the number of gallon-RINs that can 

be generated for a gallon of renewable fuel. 

80.1415(b)(5) and (b)(6) ......................................... Revised to clarify the equivalence values for biogas and electricity, respectively. 

80.1415(c)(1) .......................................................... Revised definition of variable ‘‘R’’ in equivalence value equation to clarify that the renewable 

content of a renewable fuel is based on the portion that came from renewable biomass, 

and that it should be expressed as a fraction, not a percentage. 

80.1416(a) and (d) ................................................. Revised to clarify the circumstances under which a party may petition EPA for consideration 

of a D code for their renewable fuel. 

80.1416(b)(2)(vi) ..................................................... Revised to clarify that information submitted to EPA by a company for purposes of evaluating a new renewable fuel pathway must include the current and future quantities of 

feedstocks used to produce the renewable fuel, including information on current and projected yields for feedstocks that are harvested or collected. 

80.1416(c)(2) .......................................................... Revised to clarify that the responsible corporate officer of the company submitting a petition 

for evaluation of a new renewable fuel pathway must sign and certify that the petition 

meets all the applicable requirements. 

80.1425 ................................................................... Amended to clarify that RINs generated after July 1, 2010, may only be generated and 

transferred using the EPA-Moderated Transaction System (EMTS) and will not be identified by a 38-digit code. 

80.1425(i) ............................................................... Revised to clarify that the value of EEEEEEEE in a batch-RIN will be determined by the 

number of gallon-RINs generated for the batch. 

80.1426(a)(2) .......................................................... Amended to clarify that renewable fuel contained in imported heating oil and jet fuel, in addition to that contained in imported transportation fuel, may qualify for RIN generation. 

80.1426(c)(2) .......................................................... Corrected typographical error. 

80.1426(c)(3) and 80.1455(c) ................................ Revised to clarify the conditions under which a renewable fuel producer may qualify for the 

temporary producer threshold and not be required to generate RINs for their renewable 

fuel. 

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Federal Register / Vol. 75, No. 89 / Monday, May 10, 2010 / Rules and Regulations 26029 

RFS2 PROGRAM AMENDMENTS—Continued 

Section Description 

80.1426(c)(4) .......................................................... Revised to prohibit importers of renewable fuel produced by a foreign renewable fuel producer, or of renewable fuel made with ethanol produced by a foreign ethanol producer, 

from generating RINs for such fuel or ethanol unless the foreign renewable fuel producer 

or foreign ethanol producer is registered with EPA as required in § 80.1450. See Section 

IV.D. 

80.1426(c)(6) .......................................................... Revised to prohibit the generation of RINs for a volume of renewable fuel produced from 

other renewable fuel that was accompanied by RINs, either assigned or separated. 

80.1426(d)(1), (f)(3)(iv), and (f)(3)(v) ..................... Revised to clarify that a unique BBBBB code in the RIN, or its equivalent in EMTS, is used 

to identify a batch of renewable fuel from a given renewable fuel producer or importer. 

80.1426(d)(2)(ii) ...................................................... Amended to clarify that the RIN volume used to determine the last gallon-RIN of a batch of 

renewable fuel is identified as VRIN in the equations at § 80.1426(f). 

80.1426, Table 1 .................................................... Revised to clarify which feedstocks may be used to produce renewable fuel, in order to be 

consistent with definitions at § 80.1401. Also revised to clarify the extent to which distillers 

grains and solubles may be dried via the application of thermal energy for renewable fuel 

to qualify for certain fuel pathways. 

80.1426, Table 2 .................................................... Revised to clarify the extent to which renewable fuel producers must use certain advanced 

technologies in order for them to be considered when determining the proper D code for 

their fuel. See Section IV.B. 

80.1426, Table 3 .................................................... Corrected typographical errors in the definitions of VRIN,AB and VRIN,RF. 

80.1426, Table 4 .................................................... Revised definitions of different feedstock energy value (‘‘FE’’) to clarify that they represent 

feedstock energy from all feedstocks used to produce renewable fuel with a certain D 

code. 

80.1426(f)(4) ........................................................... Revised to clarify that partially renewable fuel may be used as transportation fuel, heating 

oil, or jet fuel. 

80.1426(f)(4)(ii) ....................................................... Revised to clarify that the contribution of non-renewable feedstocks to the production of partially renewable fuel should be ignored when determining the appropriate pathway for the 

fuel. 

80.1426(f)(5)(i) ........................................................ Corrected grammatical and typographical errors in definitions of ‘‘separated yard waste,’’ 

‘‘separated food waste,’’ and ‘‘separated municipal solid waste.’’ 

80.1426(f)(5)(iii)(B) ................................................. Revised to clarify that a renewable fuel producer who uses separated municipal solid waste 

as a feedstock must have evidence of all contracts relating to the disposal of the specified 

recyclable materials. 

80.1426(f)(5)(vi) ...................................................... Corrected typographical errors and added the term ‘‘separated’’ to ‘‘food waste’’ and ‘‘MSW’’ 

to be consistent with other sections. 

80.1426(f)(9)(iv)(C) ................................................. Corrected typographical error. 

80.1426(f)(10) ......................................................... Revised to clarify the requirements for generating RINs for renewable electricity or biogas 

that is not commingled with fuel derived from non-renewable feedstocks. 

80.1426(f)(11) ......................................................... Revised to clarify the requirements for generating RINs for renewable electricity or biogas 

that is introduced into a commercial distribution system. 

80.1426(f)(12) ......................................................... Amended to clarify the requirements for gas to be considered biogas for purposes of determining a renewable fuel’s D code. 

80.1427(a)(4)(i) ....................................................... Amended to allow RFS1 RINs with an RR code of ‘‘16’’ to be treated as RFS2 biomassbased diesel RINs with a D code of 4. See Section IV.H. 

80.1427(a)(7)(i) ....................................................... Amended to allow RFS1 RINs with an RR code of ‘‘16’’ to be subtracted from the 2010 biomass-based diesel RVO. See Section IV.H. 

80.1428(c) .............................................................. Revised to clarify that an expired RIN is considered an invalid RIN and cannot be used for 

compliance. 

80.1429(b)(5) .......................................................... Revised to clarify the requirement that the producer of renewable electricity or biogas separate any RINs they generate for a given volume of renewable electricity or biogas. 

80.1429(d) .............................................................. Revised to clarify that separated RINs must be accompanied by a PTD when being transferred from one party to another. 

80.1429(g) .............................................................. Revised to clarify that any 2009 or 2010 RINs retired because renewable fuel was used in a 

specific nonroad application may be reinstated by the retiring party and used for 2010 

RVO compliance. 

80.1430(a) .............................................................. Corrected references to subsequent paragraphs in § 80.1430. 

80.1430(b)(2) and (b)(3) ......................................... Revised definitions of VOLk to eliminate redundant language. 

80.1440(c)(3) .......................................................... Revised to clarify that a renewable fuel blender who delegates its RIN-related responsibilities will remain liable for any violation associated with its renewable fuel blending activities. 

80.1440(d) and (e) ................................................. Revised to clarify restrictions on small blenders who upward delegate their RIN responsibilities. 

80.1442(b)(1), (b)(4), (c), and (d)(1) ...................... Revised to clarify that the small refiner exemption from obligated party requirements is effective immediately for those who qualify. 

80.1450(a), (b), and (c) .......................................... Revised to clarify that registration information for obligated parties and exporters of renewable fuel, renewable fuel producers (unless grandfathered), and renewable fuel importers 

must be submitted to and accepted by EPA no later than July 1, 2010, or 60 days prior to 

generating or owning RINs, whichever date comes later. 

80.1450(b) .............................................................. Revised to require foreign ethanol producers, as defined in § 80.1401, that produce ethanol 

used in renewable fuel for which RINs are generated by a United States importer to register their facilities with EPA prior to the generation of any RINs for fuel made with their 

ethanol. See Section IV.D. 

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26030 Federal Register / Vol. 75, No. 89 / Monday, May 10, 2010 / Rules and Regulations 

RFS2 PROGRAM AMENDMENTS—Continued 

Section Description 

80.1450(b)(1)(v)(A), (b)(1)(v)(B), (b)(1)(v)(C), and 

(b)(1)(vi); removed (b)(1)(v)(D) and (b)(1)(v)(E).

Revised to require all renewable fuel producers to submit information on their baseline production volume, including copies of applicable air permits and other documents, when registering their facility. See Section IV.C. Also revised to correct typographical and grammatical errors. 

80.1450(b)(1)(vi) ..................................................... Revised to clarify the documents required as part of registration for a renewable fuel production facility claiming grandfathered status in order to demonstrate the date that construction of the facility commenced. 

80.1450(b)(1)(vii) and (b)(1)(viii) ............................ Revised to clarify specific registration requirements for producers of renewable fuel made 

from separated yard waste, separated food waste, and separated municipal solid waste. 

80.1450(b)(2)(i)(A) .................................................. Revised to clarify that the engineering review that must be submitted to EPA as part of the 

registration process for a renewable fuel production facility must be conducted by a professional engineer licensed by an appropriate state agency in the U.S. for domestic facilities, or by a foreign equivalent for foreign facilities, and that the engineer must be an independent third party. See Section IV.I. 

80.1450(b)(2)(ii)(E) ................................................. Moved to § 80.1450(b)(2)(v) for clarity. 

Added 80.1450(b)(2)(vi) ......................................... Amended to clarify that owners and operators of grandfathered renewable fuel production 

facilities must submit the engineering review no later than December 31, 2010. While this 

allowance was discussed in the preamble to the final RFS2 regulations, it was inadvertently left out of the final regulations. 

80.1450(b)(3) .......................................................... Moved to § 80.1450(b)(1)(iv) to clarify that a process heat fuel supply plan must be submitted as part of registration for all renewable fuel production facilities, and revised to clarify the information that must be included in such a plan. See Section IV.J. 

80.1450(d)(2) .......................................................... Revised to clarify that any renewable fuel producer who makes changes to their facility that 

will affect the producer’s registration information but will not affect the renewable fuel category for which the producer is registered must update their registration information seven 

(7) days prior to the change. See Section IV.K. 

80.1450(e) .............................................................. Revised to clarify that registration information for RIN owners must be submitted to EPA at 

least 30 days prior to RIN ownership. 

80.1450(f) ............................................................... Revised to clarify that any renewable fuel facility that claims grandfathered status under 

RFS2 must register with EPA no later than July 1, 2013. 

80.1451(a)(1)(xi) ..................................................... Revised to clarify that the annual compliance report that must be submitted by obligated 

parties and exporters of renewable fuel must include a list of all RINs retired for compliance in the reporting period. 

80.1451(b)(1)(ii)(D) ................................................. Corrected typographical error. 

80.1451(b)(1)(ii)(H) ................................................. Revised to clarify that RIN generators must report the fuel type of each batch in their RIN 

generation reports. 

80.1451(b)(1)(ii)(K) and (b)(1)(ii)(N) ....................... Revised to require information on quantities, rather than volume, of renewable fuel feedstocks and co-products, since feedstocks and co-products can be measured in mass or 

volume. 

80.1451(b)(1)(ii)(M) ................................................ Deleted ‘‘of renewable fuel’’ to make language consistent with other reporting elements required under § 80.1454(b)(1)(ii). 

80.1451(b)(1)(ii)(P) and (b)(1)(ii)(Q) ....................... Revised to clarify reporting requirements for producers and importers, as appropriate, of renewable electricity and biogas used for transportation and producers and importers of renewable fuel produced at facilities that use biogas for process heat. Specifically, these 

amendments clarify that the renewable electricity and biogas should be reported as total 

energy used (i.e., kW or BTU) rather than as a rate (kW/hr or BTU/hr). 

80.1451(b)(1)(ii)(R) ................................................. Added the term ‘‘separated’’ to ‘‘municipal solid waste’’ to be consistent with other sections. 

Also revised to clarify that the amount of separated MSW used for renewable fuel that is 

produced or imported should be in units of weight (in tons). 

80.1451(c)(1)(iii)(D) and (c)(2)(xv) ......................... Revised to clarify that reinstatement should apply to all RFS1 RINs generated in 2009 or 

2010. 

80.1451(d) and (d)(1) ............................................. Revised to clarify that producers and RIN-generating importers of renewable fuel made from 

feedstocks not covered by the aggregate compliance approach must submit quarterly reports containing information on their feedstocks, including a summary of the types and 

quantities of feedstocks used in that quarter. 

80.1451(e) .............................................................. Revised to clarify requirements for quarterly reporting on feedstocks by producers of renewable fuel that is made from feedstocks covered by the aggregate compliance approach if 

the 2007 baseline amount of U.S. agricultural land is found to have been exceeded. 

80.1452(b) .............................................................. Revised to clarify that RINs must be generated in EMTS within five (5) business days of 

being assigned to a batch of renewable fuel. This paragraph is also revised to clarify the 

information required to be submitted via EMTS for each batch of renewable fuel produced 

or imported. 

80.1452(c) .............................................................. Revised to clarify that transactions involving RINs generated on or after July 1, 2010 must 

be conducted via EMTS within five (5) business days of a reportable event. This paragraph is also revised to clarify the meaning of the term ‘‘reportable event’’ and to clarify 

the information required to be submitted via EMTS for each transaction involving RINs 

generated on or after July 1, 2010. 

80.1453(a)(5) .......................................................... Deleted the requirement for price to appear on the PTD. Although parties do not need to 

convey price information on the PTD, parties must still be in agreement on whether they 

will submit the price per RIN or price per gallon of renewable fuel to EMTS. 

80.1453(a)(7), (a)(8), and (a)(10) ........................... Revised to clarify the information required on product transfer documents (PTDs) that accompany renewable fuel or separated RINs. 

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RFS2 PROGRAM AMENDMENTS—Continued 

Section Description 

80.1453(a)(11)(i) ..................................................... Revised to clarify the RIN information required on PTDs for RFS1 and RFS2 RINs, since 

RFS2 RINs may be transferred uniquely or generically in EMTS. Section 80.1453(a)(11)(i) 

currently does not identify the information for RFS1 and RFS2 RINs that must be transferred on a PTD. 

80.1453(a)(11)(ii) .................................................... Revised to reference the identifying information required on a PTD for RFS1 and RFS2 

RINs. 

80.1454(a)(2) .......................................................... Revised to clarify that obligated parties and exporters are not required to keep the production outlook reports in § 80.1449. 

80.1454(a)(3)(iv) ..................................................... Revised to clarify the records that obligated parties and exporters of renewable fuel must 

keep related to RIN transactions and their terms. 

Added 80.1454(a)(6) .............................................. Amended to clarify that exporters must maintain invoices, BOLs and other documents related to the purchase, transfer and export of renewable fuel. 

80.1454(c)(1)(i), (c)(1)(ii), (d)(3), and (g); added 

(d)(4).

Revised to clarify that the aggregate compliance approach applies to planted crops and crop 

residue from agricultural land in the U.S. See Section IV.L. 

80.1454(c)(2)(ii) ...................................................... Deleted allowance that duplicate copies of reports submitted to EPA are not required, since 

this language is not necessary. 

80.1454(d) .............................................................. Amended heading to be formatted consistently when printed in the Federal Register. 

80.1454(d)(3) .......................................................... Amended to clarify that domestic renewable fuel producers that use separated yard and 

food waste are subject to additional recordkeeping requirements located at § 80.1454(j). 

This provision was also renumbered as (d)(4). See Section IV.M. 

80.1454(g) and (h) ................................................. Revised to include RIN-generating importers of renewable fuel made from planted crops or 

crop residue from U.S. agricultural land under the aggregate compliance approach for renewable biomass. 

80.1454(g)(2)(ii) ...................................................... Corrected typographical error and reference within paragraph (g)(2)(ii). 

80.1454(h)(6)(v) ...................................................... Revised to clarify that EPA may revoke approval of a survey plan if it determines that the 

approved survey plan was not fully implemented. 

80.1454(j) ............................................................... Added the term ‘‘solid’’ to ‘‘separated municipal waste’’ to be consistent with other sections. 

80.1454(j)(2)(iii); added (j)(2)(iv) ............................ Amended to require renewable fuel producers who use separated municipal solid waste as 

feedstock for renewable fuel to maintain records that demonstrate the fuel sampling methods used and the results of all fuel analyses to determine the non-fossil fraction of the 

fuel. 

80.1454(k) .............................................................. Revised to clarify recordkeeping requirements for a renewable fuel producer that generates 

RINs for biogas or electricity produced from renewable biomass. 

80.1455(a), (b), (c), and (d) ................................... Corrected typographical errors. 

80.1460(c)(2); removed 80.1460(c)(3) ................... Revised to eliminate redundant language. 

80.1463(a) .............................................................. Corrected typographical error. 

80.1463(b) .............................................................. Revised to clarify that any person that fails to meet their RVOs, or causes another person to 

fail to meet their RVOs during any compliance period, is subject to a separate day of violation for each day in the compliance period. 

80.1464(a)(1)(i)(A) .................................................. Corrected references to paragraphs in § 80.1430. 

80.1464(a)(1)(iv)(A) ................................................ Corrected typographical error. 

80.1464(a)(1)(iv)(D); removed 80.1464(a)(1)(vii) ... Revised to clarify the attest procedures specific to an exporter of renewable fuel and deleted 

the requirement that each exporter’s RVO be calculated from a sampling of renewable 

fuel batches, as doing so is infeasible. 

80.1464(b)(1)(i) ....................................................... Corrected references to paragraphs (d) and (e). 

80.1464(b)(1)(ii) ...................................................... Revised to clarify that the number of gallon-RINs must be computed for each batch of renewable fuel produced or imported by a RIN generator as part of the attest engagement 

requirements. 

80.1464(c)(2)(ii) ...................................................... Corrected typographical error. 

80.1465(a)(6) .......................................................... Restructured paragraph to clarify meaning. 

80.1465(d)(1)(ii) ...................................................... Revised to clarify that the volume of imported RFS–FRFUEL must be temperature-corrected 

to 60 °F. 

B. Advanced Technologies for 

Renewable Fuel Pathways 

The final RFS2 rule includes two corn 

ethanol pathways in Table 1 of 

§ 80.1426 that require the use of 

advanced technologies at the production 

facility as a prerequisite to the 

generation of RINs. The advanced 

technologies are listed in Table 2 of 

§ 80.1426. However, only three of these 

advanced technologies are explicitly 

defined in § 80.1401. To clarify our 

intent with regard to implementation of 

these advanced technologies, we have 

created new definitions for membrane 

separation and raw starch hydrolysis. 

We also replaced the existing definition 

of ‘‘fractionation of feedstocks’’ with the 

definition for ‘‘corn oil fractionation’’ to 

be more consistent with the terminology 

used in Table 2 of § 80.1426. Finally, we 

modified the definition of ‘‘combined 

heat and power (CHP)’’ and clarified in 

Table 2 of § 80.1426 the degree to which 

it, as well as the other advanced 

technologies, must be implemented in 

order to represent a valid advanced 

technology for the generation of RINs. 

C. Baseline Production Volume for All 

Renewable Fuel Production Facilities 

Section 80.1450(b)(1)(v) currently 

requires information pertinent to 

facilities described in § 80.1403(c) and 

(d), i.e., those facilities for which the 

renewable fuel would be exempted 

(‘‘grandfathered’’) from the requirement 

of 20 percent GHG emission reduction. 

This amendment modifies 

§ 80.1450(b)(1)(v) to require all 

renewable fuel producers to include 

information on their facilities’ baseline 

volume when registering for RFS2 in 

order for EPA to verify renewable fuel 

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26032 Federal Register / Vol. 75, No. 89 / Monday, May 10, 2010 / Rules and Regulations 

production volumes and RIN generation 

reports. Specifically, all owners and 

operators of renewable fuel facilities, 

including those described in 

§ 80.1403(c) and (d), must submit copies 

of their most recent air permits. In 

addition, the facilities described in 

§ 80.1403(c) must submit copies of air 

permits issued no later than December 

19, 2007; those described in 

§ 80.1403(d) must submit copies of air 

permits issued no later than December 

31, 2009. Thus, for those facilities we 

will have information on permitted 

capacity for 2007 and 2009 from which 

baseline volumes will be determined. 

We will also have the most recent 

permitted capacity for those facilities. In 

case of discrepancies in permitted 

capacity between the most recent 

permits and those representing 

operation in 2007 and 2009, EPA may 

ask for additional information. The 

information required to establish when 

construction of the grandfathered 

facilities commenced is now contained 

in § 80.1450(b)(vi), since § 80.1450(b)(v) 

now addresses only baseline volume. 

D. Foreign Ethanol Producers 

We have added a new definition of 

‘‘foreign ethanol producer’’ to § 80.1401 

that describes foreign producers that 

produce ethanol for use in 

transportation fuel, heating oil or jet fuel 

but who do not add denaturant to their 

product, and therefore do not 

technically produce ‘‘renewable fuel’’ as 

defined in our regulations. We have also 

added amendments to the registration 

provisions at § 80.1450(b) to require the 

registration of these parties if the 

ethanol they produce is used to make 

renewable fuel for which RINs are 

ultimately generated. The result of these 

changes is to require foreign ethanol 

facilities that produce ethanol that 

ultimately becomes part of a renewable 

fuel for which RINs are generated to 

provide EPA the same registration 

information as foreign renewable fuel 

facilities that export their product to the 

United States. In both cases the required 

registration information is important for 

enforcement purposes, including 

verifying the use of renewable biomass 

as feedstock and the assignment of 

appropriate D codes. The changes made 

today conform the regulations to EPA’s 

intent at the time the RFS2 regulations 

were issued. 

E. Permitted Capacity 

EPA is modifying the definition of 

‘‘permitted capacity’’ to reference the 

specific permits, by year, which are to 

be used in establishing the permitted 

capacity of facilities claiming the 

exemptions specified in § 80.1403(c) 

and (d). Permitted capacity is one means 

by which ‘‘baseline volume’’ is 

determined for purposes of these 

exemptions. The registration provisions 

in the existing regulations at 

§ 80.1450(b)(1)(v)(C) accurately identify 

the permits (by year) that are relevant in 

establishing ‘‘permitted capacity’’ for 

facilities claiming the exemptions in 

§ 80.1403(c) and (d), but EPA neglected 

to include comparable references in the 

existing definition of ‘‘permitted 

capacity.’’ Today’s amendments will 

help to clarify the regulations by adding 

comparable references in the definition 

of ‘‘permitted capacity.’’ 

F. Definition for ‘‘Naphtha’’ 

The final RFS2 rule includes the term 

naphtha in Table 1 to § 80.1426 in the 

form of both ‘‘naphtha’’ and ‘‘cellulosic 

naphtha.’’ The final rule also includes a 

definition of naphtha in § 80.1401 

indicating that naphtha must be a 

renewable fuel or fuel blending 

component. Since naphtha is generally 

not used as transportation fuel in its 

neat form, requiring naphtha to be 

renewable fuel could cause confusion. 

Therefore, we have modified the 

definition of naphtha to indicate that it 

must be a blendstock or fuel blending 

component. 

G. Grandfathering Exemption for 

Renewable Fuel Production Facilities 

Section 80.1403(c)(2) requires as a 

condition of the exemption from the 20 

percent greenhouse gas (GHG) emission 

reduction that construction of the 

renewable fuel facility be completed 

within 36 months of commencement. In 

the proposed RFS2 rule, however, the 

regulatory language required completion 

of construction within 36 months of 

EISA enactment, which would be 

December 19, 2010. In preparing the 

final rulemaking package we mistakenly 

removed the proposed language. 

Today’s rule provides that construction 

must be completed within 36 months of 

December 19, 2007, for facilities that 

commenced construction prior to that 

date. For facilities that commenced 

construction after that date, as described 

in § 80.1403(d), the requirement remains 

that construction must be completed 

within three years of commencement of 

construction. 

H. Use of RFS1 RINs for RFS2 

Compliance in 2010 

The RFS2 final rule allows RFS1 RINs 

to be used for compliance purposes 

under RFS2. With regard to biodiesel 

and renewable diesel, the regulations at 

§ 80.1427(a)(4)(i) indicate that RFS1 

RINs with a D code of 2 and RR code 

of 15 or 17 may be deemed equivalent 

to an RFS2 RIN with a D code of 4 

representing biomass-based diesel. The 

RR codes of 15 and 17 were included in 

this provision because they are 

indicative of biodiesel and renewable 

diesel, respectively, as described in the 

assignment of Equivalence Values in 

§ 80.1415. However, EPA also approved 

an Equivalence Value of 1.6 for a 

particular renewable fuel diesel 

substitute that is compositionally 

similar to biodiesel. Therefore, we are 

modifying the RFS1/RFS2 transition 

provisions at § 80.1427(a)(4)(i) to also 

allow RFS1 RINs with a D code of 2 and 

RR code of 16 to be deemed equivalent 

to an RFS2 RIN with a D code of 4. 

I. Engineering Review 

Section 80.1450(b)(2)(i)(A) and 

(b)(2)(i)(B) are amended to clarify the 

types of professional engineers who may 

qualify to conduct the third-party 

engineering review for renewable fuel 

facilities located in the United States or 

in a foreign country. The original 

requirements in the final regulations in 

§ 80.1450(b)(2)(i)(A) state that domestic 

renewable fuel production facilities 

must have an engineering review 

conducted by a ‘‘Professional Chemical 

Engineer.’’ For foreign facilities, 

§ 80.1450(b)(2)(i)(B) provides that the 

review should be conducted by ‘‘a 

licensed professional engineer or foreign 

equivalent who works in the chemical 

engineering field.’’ EPA interprets these 

provisions similarly but is amending the 

regulations to clarify that the 

requirements are the same. For both 

domestic and foreign facilities the third 

party engineering review should be 

conducted by a professional engineer (or 

foreign equivalent) who works in the 

chemical engineering field. EPA views 

renewable fuel production to fall 

generally within the chemical 

engineering field, and is amending the 

regulation to clarify that professional 

work experience related to renewable 

fuel production will satisfy this 

requirement. As required in 

§ 80.1450(b)(2)(ii)(E), the professional 

engineer shall provide to EPA 

documentation of their qualifications to 

conduct the engineering review, 

including but not limited to proof of a 

license as a professional engineer and 

relevant work experience. Additional 

language is added to clarify that the 

professional engineer must also be an 

independent third-party, which is 

further defined in § 80.1450(b)(2)(ii), to 

qualify to conduct the engineering 

review. 

J. Process Heat Fuel Supply Plan 

The requirements for the process heat 

fuel supply plan were moved from 

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Federal Register / Vol. 75, No. 89 / Monday, May 10, 2010 / Rules and Regulations 26033 

§ 80.1450(b)(3) and inserted under 

§ 80.1450(b)(1)(iv) in these amendments 

to minimize duplicative requirements 

and to provide clear instruction that the 

process heat fuel supply plan is 

required to be submitted as part of 

registration and will be subject to 

verification in the engineer review 

required in § 80.1450(b)(2). 

The requirements for the process heat 

fuel supply plan have been divided into 

two subparts. Section 

80.1450(b)(1)(iv)(A) is applicable to all 

renewable fuel producers and requires 

submissions of information on any 

process heat fuel that is used at a 

renewable fuel facility. Examples of 

process heat fuel include biomass, 

biogas, coal, and natural gas. The 

information submitted on the type of 

process heat fuel and its supply source 

will help EPA determine if a renewable 

fuel facility qualifies as a grandfathered 

facility pursuant to § 80.1403(d) and 

help verify a producer’s fuel pathway 

pursuant to Table 1 to § 80.1426. 

The required information in 

§ 80.1450(b)(1)(iv)(B) for renewable fuel 

producers using biogas as process heat 

fuel will help EPA verify the contractual 

pathway of the biogas from the supplier 

to the renewable fuel facility for the 

purposes of confirming the applicable 

fuel pathway pursuant to Table 1 to 

§ 80.1426 and to § 80.1426(f)(12). 

The information submitted under 

§ 80.1450(b)(1)(iv)(A) and (b)(1)(iv)(B) 

will also help EPA in our evaluation of 

the engineering review that is 

conducted and submitted by an 

independent third party engineer 

pursuant to § 80.1450(b)(2). Since the 

requirements for the process heat fuel 

supply plan have been revised and 

relocated within the regulations, the 

requirements stipulated in the original 

§ 80.1450(b)(3)(ii) through (iv) have 

been deleted to avoid redundancy. 

K. Updating Registration To Account for 

Facility Changes Not Affecting the 

Renewable Fuel Category 

Section 80.1450(d)(2) currently 

requires producers of renewable fuel to 

update their facility registration seven 

(7) days prior to any change to the 

facility that does not affect the 

renewable fuel category for which the 

producer is registered. EPA is revising 

§ 80.1450(d)(2) to narrow the scope of 

changes that would require a producer 

to update their registration. The 

revisions clarify that not just any 

change, but only changes to the facility 

that actually affect the information 

submitted to EPA in the producer’s 

original registration, will trigger such a 

registration update. 

L. Applicability of the Renewable 

Biomass Aggregate Compliance 

Approach 

Sections 80.1451 and 80.1454 include 

requirements for renewable fuel 

producers to report and maintain 

records to affirm that their feedstocks 

meet the definition of renewable 

biomass and come from qualifying land. 

Through amendments to these two 

sections, EPA is clarifying our intent, as 

discussed in the preamble to the final 

RFS2 regulations, that producers, either 

domestic or foreign, who use crops and 

crop residue from existing U.S. 

agricultural land are covered by the 

renewable biomass aggregate 

compliance approach for those 

particular feedstocks, as described in 

§ 80.1454(g), and need not keep detailed 

records or report to EPA concerning 

whether those particular feedstocks 

meet the definition of renewable 

biomass. However, if a producer 

(domestic or foreign) uses any type of 

feedstock other than crops and crop 

residue from existing U.S. agricultural 

land, then he or she must keep records 

and report to EPA to demonstrate that 

their feedstocks meet the definition of 

renewable biomass. This includes 

maintaining records that show that the 

feedstock type is one allowed under the 

renewable biomass definition under the 

RFS2 regulations and that the feedstock 

is harvested from qualifying lands, 

where applicable. 

M. Additional Recordkeeping 

Requirements for Renewable Fuel 

Producers Using Separated Yard and 

Food Waste as a Feedstock 

Section 80.1454(d)(3) currently 

requires that domestic renewable fuel 

producers using feedstock other than 

planted trees or tree residue from 

actively managed tree plantations, slash 

or pre-commercial thinnings from nonfederal forestland, biomass from areas at 

risk of wildfire, crops or crop residue 

covered by the aggregate compliance 

approach under § 80.1454(g), or any 

feedstock covered by an alternative 

biomass tracking approach under 

§ 80.1454(h) must maintain documents 

from their feedstock supplier certifying 

that their feedstocks meet the definition 

of renewable biomass. While separated 

yard and food waste falls into this 

category, parties using these feedstocks 

are also subject to the additional 

recordkeeping requirements in 

§ 80.1454(j). Therefore, EPA is revising 

§ 80.1454(d)(3) to clarify that renewable 

fuel producers that use separated yard 

and food waste as a feedstock are 

subject to the additional requirements in 

§ 80.1454(j). 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under 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 entitlements, 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. 

It has been determined that this action 

is not a ‘‘significant regulatory action’’ 

under the terms of Executive Order 

12866 and is therefore not subject to 

OMB review. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. The 

corrections, clarifications, and 

modifications to the final RFS2 

regulations contained in this rule are 

within the scope of the information 

collection requirements submitted to the 

Office of Management and Budget 

(OMB) for the final RFS2 regulations. 

OMB has partially approved the 

information collection requirements 

contained in the existing regulations at 

40 CFR part 80, subpart M under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. and has 

assigned OMB control number 2060– 

0637. The remaining RFS2 information 

collection requirements are currently 

pending approval at OMB (EPA ICR No. 

2333.02). The OMB control numbers for 

EPA’s regulations in 40 CFR are listed 

in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

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26034 Federal Register / Vol. 75, No. 89 / Monday, May 10, 2010 / Rules and Regulations 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this action on small entities, 

I certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

This direct final rule will not impose 

any requirements on small entities that 

were not already considered under the 

final RFS2 regulations, as it makes 

relatively minor corrections and 

modifications to those regulations. 

D. Unfunded Mandates Reform Act 

This rule does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for State, local, 

and tribal governments, in the aggregate, 

or the private sector in any one year. We 

have determined that this action will 

not result in expenditures of $100 

million or more for the above parties 

and thus, this rule is not subject to the 

requirements of sections 202 or 205 of 

UMRA. 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. It 

only applies to gasoline, diesel, and 

renewable fuel producers, importers, 

distributors and marketers and makes 

relatively minor corrections and 

modifications to the RFS2 regulations. 

E. Executive Order 13132 (Federalism) 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This action only 

applies to gasoline, diesel, and 

renewable fuel producers, importers, 

distributors and marketers and makes 

relatively minor corrections and 

modifications to the RFS2 regulations. 

Thus, Executive Order 13132 does not 

apply to this action. 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This direct final rule does not have 

tribal implications, as specified in 

Executive Order 13175 (65 FR 67249, 

November 9, 2000). It applies to 

gasoline, diesel, and renewable fuel 

producers, importers, distributors and 

marketers. This action makes relatively 

minor corrections and modifications to 

the RFS regulations, and does not 

impose any enforceable duties on 

communities of Indian tribal 

governments. Thus, Executive Order 

13175 does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it does not establish 

an environmental standard intended to 

mitigate health or safety risks. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211 (66 FR 18355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this direct 

final rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. These technical 

amendments do not relax the control 

measures on sources regulated by the 

RFS regulations and therefore will not 

cause emissions increases from these 

sources. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

L. Clean Air Act Section 307(d) 

This rule is subject to Section 307(d) 

of the CAA. Section 307(d)(7)(B) 

provides that ‘‘[o]nly an objection to a 

rule or procedure which was raised with 

reasonable specificity during the period 

for public comment (including any 

public hearing) may be raised during 

judicial review.’’ This section also 

provides a mechanism for the EPA to 

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Federal Register / Vol. 75, No. 89 / Monday, May 10, 2010 / Rules and Regulations 26035 

convene a proceeding for 

reconsideration, ‘‘[i]f the person raising 

an objection can demonstrate to the EPA 

that it was impracticable to raise such 

objection within [the period for public 

comment] or if the grounds for such 

objection arose after the period for 

public comment (but within the time 

specified for judicial review) and if such 

objection is of central relevance to the 

outcome of the rule.’’ Any person 

seeking to make such a demonstration to 

the EPA should submit a Petition for 

Reconsideration to the Office of the 

Administrator, U.S. EPA, Room 3000, 

Ariel Rios Building, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460, with 

a copy to both the person(s) listed in the 

preceding FOR FURTHER INFORMATION

CONTACT section, and the Director of the 

Air and Radiation Law Office, Office of 

General Counsel (Mail Code 2344A), 

U.S. EPA, 1200 Pennsylvania Ave., 

NW., Washington, DC 20460. 

List of Subjects in 40 CFR Part 80 

Environmental protection, 

Administrative practice and procedure, 

Agriculture, Air pollution control, 

Confidential business information, 

Diesel Fuel, Energy, Forest and Forest 

Products, Fuel additives, Gasoline, 

Imports, Motor vehicle pollution, 

Penalties, Petroleum, Reporting and 

recordkeeping requirements. 

Dated: April 30, 2010. 

Lisa P. Jackson, 

Administrator. 

■ 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, 7542, 7545, and 

7601(a). 

■ 2. Section 80.1401 is amended as 

follows: 

■ a. By revising the definitions of 

‘‘Advanced biofuel’’, ‘‘Biogas’’, 

‘‘Combined heat and power (CHP)’’, 

‘‘Corn oil extraction’’, ‘‘Exporter of 

renewable fuel’’, ‘‘Forestland’’, 

‘‘Naphtha’’, ‘‘Non-ester renewable 

diesel’’, ‘‘Pastureland’’, ‘‘Pre-commercial 

thinnings’’, ‘‘Renewable Identification 

Number (RIN)’’, and ‘‘Transportation 

fuel’’. 

■ b. By removing the definitions of 

‘‘Fractionation of feedstocks’’ and ‘‘Yard 

waste’’. 

■ c. By adding definitions of ‘‘Actual 

peak capacity’’, ‘‘Baseline volume’’, 

‘‘Corn oil fractionation’’, Foreign ethanol 

producer’’, ‘‘Membrane separation’’, 

‘‘Permitted capacity’’, ‘‘Raw starch 

hydrolysis’’, and ‘‘Renewable 

electricity’’, in alphabetical order. 

§ 80.1401 Definitions. 

* * * * * 

Actual peak capacity means 105% of 

the maximum annual volume of 

renewable fuels produced from a 

specific renewable fuel production 

facility on a calendar year basis. 

(1) For facilities that commenced 

construction prior to December 19, 

2007, the actual peak capacity is based 

on the last five calendar years prior to 

2008, unless no such production exists, 

in which case actual peak capacity is 

based on any calendar year after startup 

during the first three years of operation. 

(2) For facilities that commenced 

construction after December 19, 2007 

and before January 1, 2010 that are fired 

with natural gas, biomass, or a 

combination thereof, the actual peak 

capacity is based on any calendar year 

after startup during the first three years 

of operation. 

(3) For all other facilities not included 

above, the actual peak capacity is based 

on the last five calendar years prior to 

the year in which the owner or operator 

registers the facility under the 

provisions of § 80.1450, unless no such 

production exists, in which case actual 

peak capacity is based on any calendar 

year after startup during the first three 

years of operation. 

Advanced biofuel means renewable 

fuel, other than ethanol derived from 

cornstarch, that has lifecycle greenhouse 

gas emissions that are at least 50 percent 

less than baseline lifecycle greenhouse 

gas emissions. 

* * * * * 

Baseline volume means the permitted 

capacity or, if permitted capacity cannot 

be determined, the actual peak capacity 

of a specific renewable fuel production 

facility on a calendar year basis. 

* * * * * 

Biogas means a mixture of 

hydrocarbons that is a gas at 60 degrees 

Fahrenheit and 1 atmosphere of 

pressure that is produced through the 

conversion of organic matter. Only 

biogas that is used as renewable fuel can 

generate RINs. Biogas includes propane, 

landfill gas, manure digester gas, and 

sewage waste treatment gas. 

* * * * * 

Combined heat and power (CHP), also 

known as cogeneration, refers to 

industrial processes in which waste heat 

from the production of electricity is 

used for process energy in the 

renewable fuel production facility. 

* * * * * 

Corn oil extraction means the 

recovery of corn oil from the thin 

stillage and/or the distillers grains and 

solubles produced by a dry mill corn 

ethanol plant, most often by mechanical 

separation. 

Corn oil fractionation means a process 

whereby seeds are divided in various 

components and oils are removed prior 

to fermentation for the production of 

ethanol. 

* * * * * 

Exporter of renewable fuel means: 

(1) A person that transfers any 

renewable fuel from a location within 

the contiguous 48 states or Hawaii to a 

location outside the contiguous 48 states 

and Hawaii; and 

(2) A person that transfers any 

renewable fuel from a location in the 

contiguous 48 states or Hawaii to Alaska 

or a United States territory, unless that 

state or territory has received an 

approval from the Administrator to optin to the renewable fuel program 

pursuant to § 80.1443. 

* * * * * 

Foreign ethanol producer means a 

person from a foreign country or from 

an area that has not opted into the 

program requirements of this subpart 

who produces ethanol for use in 

transportation fuel, heating oil, or jet 

fuel but who does not add denaturant to 

their product as described in paragraph 

(2) of the definition of renewable fuel in 

this section. 

Forestland is generally undeveloped 

land covering a minimum area of 1 acre 

upon which the primary vegetative 

species are trees, including land that 

formerly had such tree cover and that 

will be regenerated and tree plantations. 

Tree-covered areas in intensive 

agricultural crop production settings, 

such as fruit orchards, or tree-covered 

areas in urban settings, such as city 

parks, are not considered forestland. 

* * * * * 

Membrane separation means the 

process of dehydrating ethanol to fuel 

grade (> 99.5% purity) using a 

hydrophilic membrane. 

* * * * * 

Naphtha means a blendstock or fuel 

blending component falling within the 

boiling range of gasoline. 

* * * * * 

Non-ester renewable diesel, also 

known as renewable diesel, means 

renewable fuel which is all of the 

following: 

(1) A fuel which can be used in an 

engine designed to operate on 

conventional diesel fuel, or be heating 

oil or jet fuel. 

(2) Not a mono-alkyl ester. 

* * * * * 

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Pastureland is land managed for the 

production of select indigenous or 

introduced forage plants for livestock 

grazing or hay production, and to 

prevent succession to other plant types. 

Permitted capacity means 105% of 

the maximum permissible volume 

output of renewable fuel that is allowed 

under operating conditions specified in 

the most restrictive of all applicable 

preconstruction, construction and 

operating permits issued by regulatory 

authorities (including local, regional, 

state or a foreign equivalent of a state, 

and federal permits, or permits issued 

by foreign governmental agencies) that 

govern the construction and/or 

operation of the renewable fuel facility, 

based on an annual volume output in a 

calendar year basis. If the permit 

specifies maximum rated volume output 

on an hourly basis, then annual volume 

output is determined by multiplying the 

hourly output by 8,322 hours per year. 

(1) For facilities that commenced 

construction prior to December 19, 

2007, the permitted capacity is based on 

permits issued or revised no later than 

December 19, 2007. 

(2) For facilities that commenced 

construction after December 19, 2007 

and before January 1, 2010 that are fired 

with natural gas, biomass, or a 

combination thereof, the permitted 

capacity is based on permits issued or 

revised no later than December 31, 

2009. 

(3) For facilities other than those 

described in paragraphs (1) and (2) of 

this definition, permitted capacity is 

based on the most recent applicable 

permits. 

* * * * * 

Pre-commercial thinnings are trees, 

including unhealthy or diseased trees, 

removed to reduce stocking to 

concentrate growth on more desirable, 

healthy trees, or other vegetative 

material that is removed to promote tree 

growth. 

Raw starch hydrolysis means the 

process of hydrolyzing corn starch into 

simple sugars at low temperatures, 

generally not exceeding 100 °F (38 °C), 

using enzymes designed to be effective 

under these conditions. 

* * * * * 

Renewable electricity means 

electricity that meets the definition of 

renewable fuel. 

* * * * * 

Renewable Identification Number 

(RIN), is a unique number generated to 

represent a volume of renewable fuel 

pursuant to §§ 80.1425 and 80.1426. 

(1) Gallon-RIN is a RIN that represents 

an individual gallon of renewable fuel 

used for compliance purposes pursuant 

to § 80.1427 to satisfy a renewable 

volume obligation. 

(2) Batch-RIN is a RIN that represents 

multiple gallon-RINs. 

* * * * * 

Transportation fuel means fuel for use 

in motor vehicles, motor vehicle 

engines, nonroad vehicles, or nonroad 

engines (except fuel for use in oceangoing vessels). 

* * * * * 

■ 3. Section 80.1403 is amended as 

follows: 

■ a. By revising paragraph (a). 

■ b. By revising paragraph (c)(2). 

■ c. By revising paragraphs (d) 

introductory text and (d)(3). 

§ 80.1403 Which fuels are not subject to 

the 20% GHG thresholds? 

(a) For purposes of this section, the 

following definitions apply: 

(1) Commence construction, as 

applied to facilities that produce 

renewable fuel, means that: 

(i) The owner or operator has all 

necessary preconstruction approvals or 

permits (as defined at 40 CFR 

52.21(b)(10)), and has satisfied either of 

the following: 

(A) Begun, or caused to begin, a 

continuous program of actual 

construction on-site (as defined in 40 

CFR 52.21(b)(11)). 

(B) Entered into binding agreements 

or contractual obligations, which cannot 

be cancelled or modified without 

substantial loss to the owner or 

operator, to undertake a program of 

actual construction of the facility. 

(ii) For multi-phased projects, the 

commencement of construction of one 

phase does not constitute 

commencement of construction of any 

later phase, unless each phase is 

mutually dependent for physical and 

chemical reasons only. 

(2) [Reserved] 

* * * * * 

(c) * * * 

(2) Completed construction by 

December 19, 2010. 

(d) The baseline volume of ethanol 

that is produced from facilities and any 

expansions all of which commenced 

construction after December 19, 2007 

and on or before December 31, 2009, 

shall not be subject to the requirement 

that lifecycle greenhouse gas emissions 

be at least 20 percent less than baseline 

lifecycle greenhouse gas emissions if 

such facilities are fired with natural gas, 

biomass, or a combination thereof at all 

times the facility operated between 

December 19, 2007 and December 31, 

2009 and if: 

* * * * * 

(3) The baseline volume continues to 

be produced through processes fired 

with natural gas, biomass, or any 

combination thereof. 

* * * * * 

■ 4. Section 80.1405 is amended by 

revising paragraph (c) to read as follows: 

§ 80.1405 What are the Renewable Fuel 

Standards? 

* * * * * 

(c) EPA will calculate the annual 

renewable fuel percentage standards 

using the following equations: 

Std

RFV

CB, i

CB, i = ∗ ( ) − + − ( ) − +− ( ) + −

100

G RG GS RGS GE D RD DS i i i i ii i i ( ) RDS DE i i −

Std

RFV

BBD, i

BBD, i = ∗ ×

( ) − + − ( ) − +− ( 100

1 5.

G RG GS RGS GE D RD i i i i ii i ) + − ( ) DS RDS DE i ii −

Std

RFV

AB, i

AB, i = ∗ ( ) − + − ( ) − +− ( ) + −

100

G RG GS RGS GE D RD DS i i i i ii i i ( ) RDS DE i i −


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Std

RFV

RF, i

RF, i = ∗ ( ) − + − ( ) − +− ( ) + −

100

G RG GS RGS GE D RD DS i i i i ii i i ( ) RDS DE i i −

Where: 

StdCB,i = The cellulosic biofuel standard for 

year i, in percent. 

StdBBD,i = The biomass-based diesel standard 

for year i, in percent. 

StdAB,i = The advanced biofuel standard for 

year i, in percent. 

StdRF,i = The renewable fuel standard for year 

i, in percent. 

RFVCB,i = Annual volume of cellulosic 

biofuel required by section 211(o)(2)(B) 

of the Clean Air Act for year i, or volume 

as adjusted pursuant to section 

211(o)(7)(D) of the Clean Air Act, in 

gallons. 

RFVBBD,i = Annual volume of biomass-based 

diesel required by section 211(o)(2)(B) of 

the Clean Air Act for year i, in gallons. 

RFVAB,i = Annual volume of advanced 

biofuel required by section 211(o)(2)(B) 

of the Clean Air Act for year i, in gallons. 

RFVRF,i = Annual volume of renewable fuel 

required by section 211(o)(2)(B) of the 

Clean Air Act for year i, in gallons. 

Gi = Amount of gasoline projected to be used 

in the 48 contiguous states and Hawaii, 

in year i, in gallons. 

Di = Amount of diesel projected to be used 

in the 48 contiguous states and Hawaii, 

in year i, in gallons. 

RGi = Amount of renewable fuel blended into 

gasoline that is projected to be consumed 

in the 48 contiguous states and Hawaii, 

in year i, in gallons. 

RDi = Amount of renewable fuel blended into 

diesel that is projected to be consumed 

in the 48 contiguous states and Hawaii, 

in year i, in gallons. 

GSi = Amount of gasoline projected to be 

used in Alaska or a U.S. territory, in year 

i, if the state or territory has opted-in or 

opts-in, in gallons. 

RGSi = Amount of renewable fuel blended 

into gasoline that is projected to be 

consumed in Alaska or a U.S. territory, 

in year i, if the state or territory opts-in, 

in gallons. 

DSi = Amount of diesel projected to be used 

in Alaska or a U.S. territory, in year i, if 

the state or territory has opted-in or optsin, in gallons. 

RDSi = Amount of renewable fuel blended 

into diesel that is projected to be 

consumed in Alaska or a U.S. territory, 

in year i, if the state or territory opts-in, 

in gallons. 

GEi = The amount of gasoline projected to be 

produced by exempt small refineries and 

small refiners, in year i, in gallons in any 

year they are exempt per §§ 80.1441 and 

80.1442, respectively. Assumed to equal 

0.119*(Gi-RGi). 

DEi = The amount of diesel fuel projected to 

be produced by exempt small refineries 

and small refiners in year i, in gallons, 

in any year they are exempt per 

§§ 80.1441 and 80.1442, respectively. 

Assumed to equal 0.152*(Di-RDi). 

* * * * * 

■ 5. Section 80.1406 is amended by 

revising paragraphs (c)(1) and (f) to read 

as follows: 

§ 80.1406 Who is an obligated party under 

the RFS program? 

* * * * * 

(c) * * * 

(1) Except as provided in paragraphs 

(c)(2), (d) and (e) of this section, an 

obligated party may comply with the 

requirements of paragraph (b) of this 

section in the aggregate for all of the 

refineries that it operates, or for each 

refinery individually. 

* * * * * 

(f) Where a refinery or import facility 

is jointly owned by two or more parties, 

the requirements of paragraph (b) of this 

section may be met by one of the joint 

owners for all of the gasoline or diesel 

fuel produced/imported at the facility, 

or each party may meet the 

requirements of paragraph (b) of this 

section for the portion of the gasoline or 

diesel fuel that it produces or imports, 

as long as all of the gasoline or diesel 

fuel produced/imported at the facility is 

accounted for in determining the 

Renewable Volume Obligations under 

§ 80.1407. In either case, all joint 

owners are subject to the liability 

provisions of § 80.1461(d). 

* * * * * 

■ 6. Section 80.1415 is amended as 

follows: 

■ a. By revising paragraph (a). 

■ b. By revising paragraphs (b)(5) and 

(b)(6). 

■ c. By revising paragraph (c)(1). 

§ 80.1415 How are equivalence values 

assigned to renewable fuel? 

(a)(1) Each gallon of a renewable fuel, 

or gallon equivalent pursuant to 

paragraph (b)(5) or (b)(6) of this section, 

shall be assigned an equivalence value 

by the producer or importer pursuant to 

paragraph (b) or (c) of this section. 

(2) The equivalence value is a number 

that is used to determine how many 

gallon-RINs can be generated for a 

gallon of renewable fuel according to 

§ 80.1426. 

(b) * * * 

(5) 77,000 Btu (lower heating value) of 

biogas shall represent one gallon of 

renewable fuel with an equivalence 

value of 1.0. 

(6) 22.6 kW-hr of electricity shall 

represent one gallon of renewable fuel 

with an equivalence value of 1.0. 

* * * * * 

(c) * * * 

(1) The equivalence value for 

renewable fuels described in paragraph 

(b)(7) of this section shall be calculated 

using the following formula: 

EV = (R/0.972) * (EC/77,000) 

Where: 

EV = Equivalence Value for the renewable 

fuel, rounded to the nearest tenth. 

R = Renewable content of the renewable fuel. 

This is a measure of the portion of a 

renewable fuel that came from renewable 

biomass, expressed as a fraction, on an 

energy basis. 

EC = Energy content of the renewable fuel, 

in Btu per gallon (lower heating value). 

* * * * * 

■ 7. Section 80.1416 is revised to read 

as follows: 

§ 80.1416 Petition process for evaluation 

of new renewable fuels pathways. 

(a) Pursuant to this section, a party 

may petition EPA to assign a D code for 

their renewable fuel if any of the 

following apply: 

(1) The renewable fuel pathway has 

not been evaluated by EPA to determine 

if it qualifies for a D code pursuant to 

§ 80.1426(f). 

(2) The renewable fuel pathway has 

been determined by EPA not to qualify 

for a D code pursuant to § 80.1426(f) and 

the party can document significant 

differences between their fuel 

production processes and the fuel 

production processes already 

considered by EPA. 

(3) The renewable fuel pathway has 

been determined to qualify for a certain 

D code pursuant to § 80.1426(f) and the 

party can document significant 

differences between their fuel 

production processes and the fuel 

production processes already 

considered by EPA that may qualify 

their fuel pathway for a different D 

code. 

(b)(1) Any petition under paragraph 

(a) of this section shall include all the 

following: 

(i) The information specified under 

§ 80.76. 

(ii) A technical justification that 

includes a description of the renewable 

fuel, feedstock(s) used to make it, and 

the production process. The justification 

must include process modeling flow 

charts. 

(iii) A mass balance for the pathway, 

including feedstocks, fuels produced, 

co-products, and waste materials 

production. 


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(iv) Information on co-products, 

including their expected use and market 

value. 

(v) An energy balance for the 

pathway, including a list of any energy 

and process heat inputs and outputs 

used in the pathway, including such 

sources produced off site or by another 

entity. 

(vi) Any other relevant information, 

including information pertaining to 

energy saving technologies or other 

process improvements. 

(vii) The Administrator may ask for 

additional information to complete the 

lifecycle greenhouse gas assessment of 

the new fuel or pathway. 

(2) For those companies who use a 

feedstock not previously evaluated by 

EPA under this subpart, the petition 

must include all the following in 

addition to the requirements in 

paragraph (b)(1) of this section: 

(i) Type of feedstock and description 

of how it meets the definition of 

renewable biomass. 

(ii) Market value of the feedstock. 

(iii) List of other uses for the 

feedstock. 

(iv) List of chemical inputs needed to 

produce the renewable biomass source 

of the feedstock and prepare the 

renewable biomass for processing into 

feedstock. 

(v) Identify energy needed to obtain 

the feedstock and deliver it to the 

facility. If applicable, identify energy 

needed to plant and harvest the 

renewable biomass source of the 

feedstock and modify the source to 

create the feedstock. 

(vi) Current and projected quantities 

of the feedstock that will be used to 

produce the fuel, including information 

on current and projected yields for 

feedstocks that are harvested or 

collected. 

(vii) The Administrator may ask for 

additional information to complete the 

lifecycle Greenhouse Gas assessment of 

the new fuel or pathway. 

(c)(1) A company may only submit 

one petition per pathway. If EPA 

determines the petition to be 

incomplete, then the company may 

resubmit. 

(2) The petition must be signed and 

certified as meeting all the applicable 

requirements of this subpart by the 

responsible corporate officer of the 

applicant company. 

(3) If EPA determines that the petition 

is incomplete then EPA will notify the 

applicant in writing that the petition is 

incomplete and will not be reviewed 

further. However, an amended petition 

that corrects the omission may be resubmitted for EPA review. 

(4) If the fuel or pathway described in 

the petition does not meet the 

definitions in § 80.1401 of renewable 

fuel, advanced biofuel, cellulosic 

biofuel, or biomass-based diesel, then 

EPA will notify the applicant in writing 

that the petition is denied and will not 

be reviewed further. 

(d) A D code must be approved prior 

to the generation of RINs for the fuel in 

question. 

(e) The petition under this section 

shall be submitted on forms and 

following procedures as prescribed by 

EPA. 

■ 8. Section 80.1425 is amended by 

revising the introductory text and 

paragraph (i) to read as follows: 

§ 80.1425 Renewable Identification 

Numbers (RINs). 

RINs generated on or after July 1, 2010 

shall not be generated as a 38-digit code, 

but shall be identified by the 

information specified in paragraphs (a) 

through (i) of this section and 

introduced into EMTS as data elements 

during the generation of RINs pursuant 

to § 80.1452(b). For RINs generated prior 

to July 1, 2010, each RIN is a 38-digit 

code of the following form: 

KYYYYCCCCFFFFFBBBBB

RRDSSSSSSSSEEEEEEEE 

* * * * * 

(i) EEEEEEEE is a number 

representing the last gallon-RIN 

associated with a batch of renewable 

fuel. EEEEEEEE will be identical to 

SSSSSSSS if the batch-RIN represents a 

single gallon-RIN. The value of 

EEEEEEEE will be determined by the 

number of gallon-RINs being generated 

for the batch as described in 

§ 80.1426(f). 

■ 9. Section 80.1426 is amended as 

follows: 

■ a. By revising paragraph (a)(2). 

■ b. By revising paragraphs (c)(2), (c)(3), 

(c)(4), and (c)(6)(ii). 

■ c. By revising paragraphs (d)(1) 

introductory text and (d)(2)(ii). 

■ d. By revising paragraph (f)(1) and 

Table 1 to § 80.1426 and Table 2 to 

§ 80.1426. 

■ e. By revising paragraphs (f)(3)(iv) and 

(f)(3)(v), and Table 3 to § 80.1426. 

■ f. By revising paragraph (f)(4). 

■ g. By revising paragraphs (f)(5)(i) and 

(f)(5)(iii)(B). 

■ h. By revising paragraph (f)(10). 

■ i. By revising paragraphs (f)(11)(i) 

introductory text, (f)(11)(i)(C), (f)(11)(ii) 

introductory text, (f)(11)(iii) 

introductory text, (f)(11)(iii)(A), and 

(f)(11)(iv). 

■ j. By revising paragraph (f)(12). 

§ 80.1426 How are RINs generated and 

assigned to batches of renewable fuel by 

renewable fuel producers or importers? 

(a) * * * 

(2) To generate RINs for imported 

renewable fuel, including any 

renewable fuel contained in imported 

transportation fuel, heating oil, or jet 

fuel, importers must obtain information 

from a foreign producer that is 

registered pursuant to § 80.1450 

sufficient to make the appropriate 

determination regarding the applicable 

D code and compliance with the 

renewable biomass definition for each 

imported batch for which RINs are 

generated. 

* * * * * 

(c) * * * 

(2) Small producer/importer 

threshold. Pursuant to § 80.1455(a) and 

(b), renewable fuel producers that 

produce less than 10,000 gallons a year 

of renewable fuel, and importers that 

import less than 10,000 gallons a year of 

renewable fuel, are not required to 

generate and assign RINs to batches of 

renewable fuel that satisfy the 

requirements of paragraph (a)(1) of this 

section that they produce or import. 

(3) Temporary new producer 

threshold. Pursuant to § 80.1455(c) and 

(d), new renewable fuel producers that 

produce less than 125,000 gallons of 

renewable fuel a year are not required 

to generate and assign RINs to batches 

of renewable fuel to satisfy the 

requirements of paragraph (a)(1) of this 

section. 

(i) The provisions of this paragraph 

(c)(3) apply only to new facilities, for a 

maximum of three years beginning with 

the calendar year in which the 

production facility produces its first 

gallon of renewable fuel. 

(ii) [RESERVED] 

(4) Importers shall not generate RINs 

for renewable fuel imported from a 

foreign renewable fuel producer, or for 

renewable fuel made with ethanol 

produced by a foreign ethanol producer, 

unless the foreign renewable fuel 

producer or foreign ethanol producer is 

registered with EPA as required in 

§ 80.1450. 

* * * * * 

(6) * * * 

(ii) The fuel has been produced from 

a chemical conversion process that uses 

another renewable fuel as a feedstock, 

the renewable fuel used as a feedstock 

was produced by another party, and 

RINs were received with the renewable 

fuel. 

(A) Parties who produce renewable 

fuel made from a feedstock which itself 

was a renewable fuel received with 

RINs, shall assign the original RINs to 

the new renewable fuel. 

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Federal Register / Vol. 75, No. 89 / Monday, May 10, 2010 / Rules and Regulations 26039 

(B) [Reserved] 

(d)(1) Definition of batch. For the 

purposes of this section and § 80.1425, 

a ‘‘batch of renewable fuel’’ is a volume 

of renewable fuel that has been assigned 

a unique BBBBB code in the RIN, or its 

equivalent in EMTS, within a calendar 

year by the producer or importer of the 

renewable fuel in accordance with the 

provisions of this section and § 80.1425. 

* * * * * 

(2) * * * 

(ii) The value of EEEEEEEE in the 

batch-RIN shall represent the last 

gallon-RIN associated with the volume 

of renewable fuel, based on the RIN 

volume VRIN determined pursuant to 

paragraph (f) of this section. 

* * * * * 

(f) * * * 

(1) Applicable pathways. D codes 

shall be used in RINs generated by 

producers or importers of renewable 

fuel according to the pathways listed in 

Table 1 to this section, or as approved 

by the Administrator. In choosing an 

appropriate D code, producers and 

importers may disregard any incidental, 

de minimis feedstock contaminants that 

are impractical to remove and are 

related to customary feedstock 

production and transport. 

TABLE 1 TO § 80.1426—APPLICABLE D CODES FOR EACH FUEL PATHWAY FOR USE IN GENERATING RINS

Fuel type Feedstock Production process requirements D–code 

Ethanol ....................................... Corn starch ............................... All of the following: ......................................................................

Dry mill process, using natural gas, biomass, or biogas for 

process energy and at least two advanced technologies from 

Table 2 to this section. 

6 

Ethanol ....................................... Corn starch ............................... All of the following: ......................................................................

Dry mill process, using natural gas, biomass, or biogas for 

process energy and at least one of the advanced technologies from Table 2 to this section plus drying no more 

than 65% of the distillers grains with solubles it markets annually. 

6 

Ethanol ....................................... Corn starch ............................... All of the following: ......................................................................

Dry mill process, using natural gas, biomass, or biogas for 

process energy and drying no more than 50% of the distillers 

grains with solubles it markets annually. 

6 

Ethanol ....................................... Corn starch ............................... Wet mill process using biomass or biogas for process energy. 6 

Ethanol ....................................... Starches from crop residue and 

annual covercrops.

Fermentation using natural gas, biomass, or biogas for process 

energy.

6 

Biodiesel, and renewable diesel Soy bean oil; 

Oil from annual covercrops; 

One of the following: ....................................................................

Trans-Esterification 

4 

Algal oil; Hydrotreating 

Biogenic waste oils/fats/ 

greases; 

Excluding processes that co-process renewable biomass and 

petroleum. 

Non-food grade corn oil.

Biodiesel, and renewable diesel Soy bean oil; One of the following: .................................................................... 5 

Oil from annual covercrops; ..... Trans-Esterification.

Algal oil; Hydrotreating 

Biogenic waste oils/fats/ 

greases; 

Includes only processes that co-process renewable biomass 

and petroleum. 

Non-food grade corn oil.

Ethanol ....................................... Sugarcane ................................ Fermentation ................................................................................ 5 

Ethanol ....................................... Cellulosic Biomass from crop 

residue, slash, pre-commercial thinnings and tree residue, annual covercrops, 

switchgrass, and miscanthus; 

cellulosic components of separated yard waste; cellulosic 

components of separated 

food waste; and cellulosic 

components of separated 

MSW.

Any ............................................................................................... 3 

Cellulosic Diesel, Jet Fuel and 

Heating Oil.

Cellulosic Biomass from crop 

residue, slash, pre-commercial thinnings and tree residue, annual covercrops, 

switchgrass, and miscanthus; 

cellulosic components of separated yard waste; cellulosic 

components of separated 

food waste; and cellulosic 

components of separated 

MSW.

Any ............................................................................................... 7 

Butanol ....................................... Corn starch ............................... Fermentation; dry mill using natural gas, biomass, or biogas for 

process energy.

6 

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26040 Federal Register / Vol. 75, No. 89 / Monday, May 10, 2010 / Rules and Regulations 

TABLE 1 TO § 80.1426—APPLICABLE D CODES FOR EACH FUEL PATHWAY FOR USE IN GENERATING RINS—Continued 

Fuel type Feedstock Production process requirements D–code 

Cellulosic Naphtha ..................... Cellulosic Biomass from crop 

residue, slash, pre-commercial thinnings and tree residue, annual covercrops, 

switchgrass, and miscanthus; 

cellulosic components of separated yard waste; cellulosic 

components of separated 

food waste; and cellulosic 

components of separated 

MSW.

Fischer-Tropsch process ............................................................. 3 

Ethanol, renewable diesel, jet 

fuel, heating oil, and naphtha.

The non-cellulosic portions of 

separated food waste.

Any ............................................................................................... 5 

Biogas ........................................ Landfills, sewage waste treatment plants, manure digesters.Any ............................................................................................... 5 

TABLE 2 TO § 80.1426—ADVANCED

TECHNOLOGIES

Corn oil fractionation that is applied to all 

corn used to produce ethanol in the facility. 

Corn oil extraction that is applied to all the 

thin stillage and distillers grains and 

solubles produced by the ethanol production facility. 

Membrane separation in which all ethanol 

dehydration in the ethanol production facility is done using a hydrophilic membrane. 

Raw starch hydrolysis that is used for all 

starch hydrolysis in the ethanol production 

facility instead of hydrolysis using a traditional high heat (>120 °C) cooking process. 

Combined heat and power such that all the 

thermal energy used at the facility (including thermal energy produced at the facility 

and that which is derived from an off-site 

waste heat supplier), exclusive of any thermal energy used for the drying of distillers 

grains and solubles, is used to produce 

electricity prior to being used to meet the 

process heat requirements of the facility. 

* * * * * 

(3) * * * 

(iv) If the pathway applicable to a 

producer changes on a specific date, 

such that one pathway applies before 

the date and another pathway applies 

on and after the date, and each batch is 

of a single fuel type, then the applicable 

D code and unique BBBBB code, or its 

equivalent in EMTS, used in generating 

RINs must change on the date that the 

change in pathway occurs and the 

number of gallon-RINs that shall be 

generated for a batch of renewable fuel 

shall be equal to a volume calculated 

according to the following formula: 

VRIN = EV * Vs

Where: 

VRIN = RIN volume, in gallons, for use in 

determining the number of gallon-RINs 

that shall be generated for a batch with 

a single applicable D code. 

EV = Equivalence value for the batch of 

renewable fuel per § 80.1415. 

Vs = Standardized volume of the batch of 

renewable fuel at 60 °F, in gallons, 

calculated in accordance with paragraph 

(f)(8) of this section. 

(v) If a producer produces batches that 

are comprised of a mixture of fuel types 

with different equivalence values and 

different applicable D codes, then 

separate values for VRIN shall be 

calculated for each category of 

renewable fuel according to formulas in 

Table 3 to this section. All batch-RINs 

thus generated shall be assigned unique 

BBBBB codes in the RIN, or their 

equivalents in EMTS, for each portion of 

the batch with a different D code. 

TABLE 3 TO § 80.1426—NUMBER OF

GALLON-RINS TO ASSIGN TO

BATCH-RINS WITH D CODES DEPENDENT ON FUEL TYPE

D code to use 

in batch-RIN Number of gallon-RINs 

D = 3 ............ VRIN, CB = EVCB * Vs, CB

D = 4 ............ VRIN, BBD = EVBBD * Vs, BBD

D = 5 ............ VRIN, AB = EVAB * Vs, AB

D = 6 ............ VRIN, RF = EVRF * Vs, RF

D = 7 ............ VRIN, CD = EVCD * Vs, CD

Where: 

VRIN,CB = RIN volume, in gallons, for use in 

determining the number of gallon-RINs 

that shall be generated for the cellulosic 

biofuel portion of the batch with a D 

code of 3. 

VRIN,BBD = RIN volume, in gallons, for use in 

determining the number of gallon-RINs 

that shall be generated for the biomassbased diesel portion of the batch with a 

D code of 4. 

VRIN,AB = RIN volume, in gallons, for use in 

determining the number of gallon-RINs 

that shall be generated for the advanced 

biofuel portion of the batch with a D 

code of 5. 

VRIN,RF = RIN volume, in gallons, for use in 

determining the number of gallon-RINs 

that shall be generated for the renewable 

fuel portion of the batch with a D code 

of 6. 

VRIN,CD = RIN volume, in gallons, for use in 

determining the number of gallon-RINs 

that shall be generated for the cellulosic 

diesel portion of the batch with a D code 

of 7. 

EVCB = Equivalence value for the cellulosic 

biofuel portion of the batch per 

§ 80.1415. 

EVBBD = Equivalence value for the biomassbased diesel portion of the batch per 

§ 80.1415. 

EVAB = Equivalence value for the advanced 

biofuel portion of the batch per 

§ 80.1415. 

EVRF = Equivalence value for the renewable 

fuel portion of the batch per § 80.1415. 

EVCD = Equivalence value for the cellulosic 

diesel portion of the batch per § 80.1415. 

Vs,CB = Standardized volume at 60 °F of the 

portion of the batch that must be 

assigned a D code of 3, in gallons, 

calculated in accordance with paragraph 

(f)(8) of this section. 

Vs,BBD = Standardized volume at 60 °F of the 

portion of the batch that must be 

assigned a D code of 4, in gallons, 

calculated in accordance with paragraph 

(f)(8) of this section. 

Vs,AB = Standardized volume at 60 °F of the 

portion of the batch that must be 

assigned a D code of 5, in gallons, 

calculated in accordance with paragraph 

(f)(8) of this section. 

Vs,RF = Standardized volume at 60 °F of the 

portion of the batch that must be 

assigned a D code of 6, in gallons, 

calculated in accordance with paragraph 

(f)(8) of this section. 

Vs,CD = Standardized volume at 60 °F of the 

portion of the batch that must be 

assigned a D code of 7, in gallons, 

calculated in accordance with paragraph 

(f)(8) of this section. 

* * * * * 

(4) Renewable fuel that is produced by 

co-processing renewable biomass and 

non-renewable feedstocks 

simultaneously to produce a fuel that is 

partially renewable. 

(i) The number of gallon-RINs that 

shall be generated for a batch of 

partially renewable fuel shall be equal 

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Federal Register / Vol. 75, No. 89 / Monday, May 10, 2010 / Rules and Regulations 26041 

to a volume VRIN calculated according to 

Method A or Method B. 

(A) Method A. 

(1) VRIN shall be calculated according 

to the following formula: 

VRIN = EV * Vs * FER/(FER + FENR) 

Where: 

VRIN = RIN volume, in gallons, for use in 

determining the number of gallon-RINs 

that shall be generated for the batch. 

EV = Equivalence value for the batch of 

renewable fuel per § 80.1415. 

Vs = Standardized volume of the batch of 

renewable fuel at 60 °F, in gallons, 

calculated in accordance with paragraph 

(f)(8) of this section. 

FER = Feedstock energy from renewable 

biomass used to make the transportation 

fuel, heating oil, or jet fuel, in Btu. 

FENR = Feedstock energy from non-renewable 

feedstocks used to make the 

transportation fuel, heating oil, or jet 

fuel, in Btu. 

(2) The value of FE for use in 

paragraph (f)(4)(i)(A)(1) of this section 

shall be calculated from the following 

formula: 

FE = M * (1¥m) * CF * E 

Where: 

FE = Feedstock energy, in Btu. 

M = Mass of feedstock, in pounds, measured 

on a daily or per-batch basis. 

m = Average moisture content of the 

feedstock, in mass percent. 

CF = Converted Fraction in annual average 

mass percent, representing that portion 

of the feedstock that is converted into 

transportation fuel, heating oil, or jet fuel 

by the producer. 

E = Energy content of the components of the 

feedstock that are converted to fuel, in 

annual average Btu/lb, determined 

according to paragraph (f)(7) of this 

section. 

(B) Method B. VRIN shall be calculated 

according to the following formula: 

VRIN = EV * Vs * R 

Where: 

VRIN = RIN volume, in gallons, for use in 

determining the number of gallon-RINs 

that shall be generated for the batch. 

EV = Equivalence value for the batch of 

renewable fuel per § 80.1415. 

Vs = Standardized volume of the batch of 

renewable fuel at 60 °F, in gallons, 

calculated in accordance with paragraph 

(f)(8) of this section. 

R = The renewable fraction of the fuel as 

measured by a carbon-14 dating test 

method as provided in paragraph (f)(9) of 

this section. 

(ii) The D code that shall be used in 

the RINs generated to represent partially 

renewable transportation fuel, heating 

oil, or jet fuel shall be the D code 

specified in Table 1 to this section, or 

a D code as approved by the 

Administrator, which corresponds to 

the pathway that describes a producer’s 

operations. In determining the 

appropriate pathway, the contribution 

of non-renewable feedstocks to the 

production of partially renewable fuel 

shall be ignored. 

(5) * * * 

(i) Separated yard waste and food 

waste means, for the purposes of this 

section, waste that is one of the 

following: 

(A) Separated yard waste, which is a 

feedstock stream consisting of yard 

waste kept separate since generation 

from other waste materials. Separated 

yard waste is deemed to be composed 

entirely of cellulosic materials. 

(B) Separated food waste, which is a 

feedstock stream consisting of food 

waste kept separate since generation 

from other waste materials, and which 

includes food and beverage production 

waste and post-consumer food and 

beverage waste. Separated food waste is 

deemed to be composed entirely of noncellulosic materials, unless a party 

demonstrates that a portion of the 

feedstock is cellulosic through approval 

of their facility registration. 

(C) Separated municipal solid waste 

(separated MSW), which is material 

remaining after separation actions have 

been taken to remove recyclable paper, 

cardboard, plastics, rubber, textiles, 

metals, and glass from municipal solid 

waste, and which is composed of both 

cellulosic and non-cellulosic materials. 

* * * * * 

(iii) * * * 

(B) The fuel producer has evidence of 

all contracts relating to the disposition 

of paper, cardboard, plastics, rubber, 

textiles, metals, and glass that are 

recycled. 

* * * * * 

(10)(i) For purposes of this section, 

renewable electricity or biogas that is 

not introduced into a distribution 

system with fuels derived from nonrenewable feedstocks is considered 

renewable fuel and the producer may 

generate RINs if all of the following 

apply: 

(A) The fuel is produced from 

renewable biomass and qualifies for a D 

code in Table 1 to this section or has 

received approval for use of a D code by 

the Administrator; 

(B) The fuel producer has entered into 

a written contract for the sale and use 

of a specific quantity of renewable 

electricity or biogas as transportation 

fuel; and 

(C) The renewable electricity or biogas 

is used as a transportation fuel. 

(ii) A producer of renewable 

electricity that is generated by co-firing 

a combination of renewable biomass 

and fossil fuel may generate RINs only 

for the portion attributable to the 

renewable biomass, using the procedure 

described in paragraph (f)(4) of this 

section. 

(11)(i) For purposes of this section, 

renewable electricity or biogas that is 

introduced into a commercial 

distribution system may be considered 

renewable fuel and the producer may 

generate RINs if: 

* * * * * 

(C) The quantity of biogas or 

renewable electricity for which RINs 

were generated was sold for use as 

transportation fuel and for no other 

purposes. 

(ii) For biogas that is introduced into 

a commercial distribution system, the 

producer may generate RINs only for the 

volume of biogas that has been gathered, 

processed, and injected into a common 

carrier pipeline if: 

* * * * * 

(iii) The fuel used for transportation 

purposes is considered produced from 

renewable biomass only to the extent 

that: 

(A) The amount of fuel sold for use as 

transportation fuel matches the amount 

of fuel derived from renewable biomass 

that the producer contracted to have 

placed into the commercial distribution 

system; and 

* * * * * 

(iv) For renewable electricity that is 

generated by co-firing a combination of 

renewable biomass and fossil fuel, the 

producer may generate RINs only for the 

portion attributable to the renewable 

biomass, using the procedure described 

in paragraph (f)(4) of this section. 

(12) For purposes of Table 1 to this 

section, process heat produced from 

combustion of gas at a renewable fuel 

facility is considered derived from 

biomass if the gas is biogas. 

(i) For biogas directly transported to 

the facility without being placed in a 

commercial distribution system, all of 

the following conditions must be met: 

(A) The producer has entered into a 

written contract for the procurement of 

a specific volume of biogas with a 

specific heat content. 

(B) The volume of biogas was sold to 

the renewable fuel production facility, 

and to no other facility. 

(C) The volume and heat content of 

biogas injected into the pipeline and the 

volume of gas used as process heat are 

measured by continuous metering. 

(D) The common carrier pipeline into 

which the biogas is placed ultimately 

serves the producer’s renewable fuel 

facility. 

(ii) For biogas that has been gathered, 

processed and injected into a common 

carrier pipeline, all of the following 

conditions must be met: 

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26042 Federal Register / Vol. 75, No. 89 / Monday, May 10, 2010 / Rules and Regulations 

(A) The producer has entered into a 

written contract for the procurement of 

a specific volume of biogas with a 

specific heat content. 

(B) The volume of biogas was sold to 

the renewable fuel production facility, 

and to no other facility. 

(C) The volume of biogas placed into 

a common carrier pipeline is ultimately 

withdrawn from that 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 as process heat are 

measured by continuous metering. 

(E) The common carrier pipeline into 

which the biogas is placed ultimately 

serves the producer’s renewable fuel 

facility. 

(iii) The process heat produced from 

combustion of gas at a renewable fuel 

facility described in paragraph (f)(12)(i) 

of this section shall not be considered 

derived from biomass if any other party 

relied upon the contracted volume of 

biogas for the creation of RINs. 

■ 10. Section 80.1427 is amended by 

revising paragraphs (a)(4)(i) and (a)(7)(i) 

to read as follows: 

§ 80.1427 How are RINs used to 

demonstrate compliance? 

(a) * * * 

(4) * * * 

(i) A RIN generated pursuant to 

§ 80.1126 with a D code of 2 and an RR 

code of 15, 16, or 17 is deemed 

equivalent to a RIN generated pursuant 

to § 80.1426 having a D code of 4. 

* * * * * 

(7) * * * 

(i) Prior to determining compliance 

with the 2010 biomass-based diesel 

RVO, obligated parties may reduce the 

value of RVOBBD,2010 by an amount 

equal to the sum of all 2008 and 2009 

RINs that they used for compliance 

purposes for calendar year 2009 which 

have a D code of 2 and an RR code of 

15, 16, or 17. 

* * * * * 

■ 11. Section 80.1428 is amended by 

revising paragraph (c) to read as follows: 

§ 80.1428 General requirements for RIN 

distribution. 

* * * * * 

(c) RIN expiration. Except as provided 

in § 80.1427(a)(7), a RIN is valid for 

compliance during the calendar year in 

which it was generated, or the following 

calendar year. Any RIN that is not used 

for compliance purposes for the 

calendar year in which it was generated, 

or for the following calendar year, will 

be considered an expired RIN. Pursuant 

to § 80.1431(a), an expired RIN will be 

considered an invalid RIN and cannot 

be used for compliance purposes. 

* * * * * 

■ 12. Section 80.1429 is amended by 

revising paragraphs (d) and (g) to read 

as follows: 

§ 80.1429 Requirements for separating 

RINs from volumes of renewable fuel. 

* * * * * 

(d) Upon and after separation of a RIN 

from its associated volume of renewable 

fuel, the separated RIN must be 

accompanied by a PTD pursuant to 

§ 80.1453 when transferred to another 

party. 

* * * * * 

(g) Any 2009 or 2010 RINs retired 

pursuant to § 80.1129 because 

renewable fuel was used in a nonroad 

vehicle or nonroad engine (except for 

ocean-going vessels), or as heating oil or 

jet fuel may be reinstated by the retiring 

party for sale or use to demonstrate 

compliance with a 2010 RVO. 

■ 13. Section 80.1430 is amended by 

revising paragraphs (a), (b)(2), and (b)(3) 

to read as follows: 

§ 80.1430 Requirements for exporters of 

renewable fuels. 

(a) Any party that owns any amount 

of renewable fuel, whether in its neat 

form or blended with gasoline or diesel, 

that is exported from any of the regions 

described in § 80.1426(b) shall acquire 

sufficient RINs to comply with all 

applicable Renewable Volume 

Obligations under paragraphs (b) 

through (e) of this section representing 

the exported renewable fuel. 

(b) * * * 

(2) Biomass-based diesel. 

RVOBBD,i = S(VOLk * EVk)i + DBBD,i-1

Where: 

RVOBBD,i = The Renewable Volume 

Obligation for biomass-based diesel for 

the exporter for calendar year i, in 

gallons. 

k = A discrete volume of exported renewable 

fuel. 

VOLk = The standardized volume of discrete 

volume k of exported renewable fuel that 

is biodiesel or renewable diesel, in 

gallons, calculated in accordance with 

§ 80.1426(f)(8). 

EVk = The equivalence value associated with 

discrete volume k. 

S = Sum involving all volumes of biodiesel 

or renewable diesel exported. 

DBBD,i-1 = Deficit carryover from the previous 

year for biomass-based diesel, in gallons. 

(3) Advanced biofuel. 

RVOAB,i = S(VOLk * EVk)i + DAB,i-1

Where: 

RVOAB,i = The Renewable Volume Obligation 

for advanced biofuel for the exporter for 

calendar year i, in gallons. 

k = A discrete volume of exported renewable 

fuel. 

VOLk = The standardized volume of discrete 

volume k of exported renewable fuel that 

is biodiesel or renewable diesel, or that 

the exporter knows or has reason to 

know is cellulosic biofuel or advanced 

biofuel, in gallons, calculated in 

accordance with § 80.1426(f)(8). 

EVk = The equivalence value associated with 

discrete volume k. 

S = Sum involving all volumes of advanced 

biofuel exported. 

DAB,i-1 = Deficit carryover from the previous 

year for advanced biofuel, in gallons. 

* * * * * 

■ 14. Section 80.1440 is amended by 

revising paragraphs (c)(3), (d), and (e) to 

read as follows: 

§ 80.1440 What are the provisions for 

blenders who handle and blend less than 

125,000 gallons of renewable fuel per year? 

* * * * * 

(c) * * * 

(3) A renewable fuel blender who 

delegates its RIN-related responsibilities 

under this section will remain liable for 

any violation of this subpart M 

associated with its renewable fuel 

blending activities. 

(d) Renewable fuel blenders who 

handle and blend less than 125,000 

gallons of renewable fuel per year and 

delegate their RIN-related 

responsibilities under paragraph (b) of 

this section must register pursuant to 

§ 80.1450(e), and may not own RINs. 

(e) Renewable fuel blenders who 

handle and blend less than 125,000 

gallons of renewable fuel per year and 

who do not opt to delegate their RINrelated responsibilities, or own RINs, 

will be subject to all requirements stated 

in paragraph (b) of this section, and all 

other applicable requirements of this 

subpart M. 

■ 15. Section 80.1442 is amended as 

follows: 

■ a. By revising paragraph (b)(1). 

■ b. By removing and reserving 

paragraph (b)(4). 

■ c. By revising paragraph (c). 

■ d. By revising paragraph (d)(1). 

§ 80.1442 What are the provisions for 

small refiners under the RFS program? 

* * * * * 

(b)(1) The small refiner exemption in 

paragraph (c) of this section is effective 

immediately, except as provided in 

paragraph (b)(5) of this section, 

provided that all requirements of this 

section are satisfied. 

* * * * * 

(4) [Reserved] 

* * * * * 

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Federal Register / Vol. 75, No. 89 / Monday, May 10, 2010 / Rules and Regulations 26043 

(c) Small refiner temporary 

exemption. 

(1) Transportation fuel produced by 

an small refiner pursuant to paragraph 

(b)(1) of this section, or an approved 

foreign small refiner (as defined at 

§ 80.1465(a)), is exempt from January 1, 

2010 through December 31, 2010 from 

the renewable fuel standards of 

§ 80.1405 and the requirements that 

apply to obligated parties under this 

subpart if the refiner or foreign refiner 

meets all the criteria of paragraph (a)(1) 

of this section. 

(2) The small refiner exemption shall 

apply to a small refiner pursuant to 

paragraph (b)(1) of this section or an 

approved foreign small refiner unless 

that refiner chooses to waive this 

exemption (as described in paragraph 

(d) of this section). 

(d)(1) A refiner may, at any time, 

waive the small refiner exemption 

under paragraph (c) of this section upon 

notification to EPA. 

* * * * * 

■ 16. Section 80.1450 is amended by 

revising paragraphs (b), (c), (d)(2), (e), 

and (f) to read as follows: 

§ 80.1450 What are the registration 

requirements under the RFS program? 

* * * * * 

(b) Producers. Any RIN-generating 

foreign or domestic producer of 

renewable fuel, any foreign renewable 

fuel producer that sells renewable fuel 

for RIN generation by a United States 

importer, or any foreign ethanol 

producer that produces ethanol used in 

renewable fuel for which RINs are 

generated by a United States importer, 

must provide EPA the information 

specified under § 80.76 if such 

information has not already been 

provided under the provisions of this 

part, and must receive EPA-issued 

company and facility identification 

numbers prior to the generation of any 

RINs for their fuel or for fuel made with 

their ethanol. Unless otherwise 

specifically indicated, all the following 

registration information must be 

submitted and accepted by EPA by July 

1, 2010, or 60 days prior to the 

generation of RINs, whichever date 

comes later, subject to this subpart: 

(1) A description of the types of 

renewable fuels or ethanol that the 

producer intends to produce at the 

facility and that the facility is capable of 

producing without significant 

modifications to the existing facility. 

For each type of renewable fuel or 

ethanol, the renewable fuel producer or 

foreign ethanol producer shall also 

provide all the following: 

(i) A list of all the feedstocks the 

facility is capable of utilizing without 

significant modification to the existing 

facility. 

(ii) A description of the facility’s 

renewable fuel or ethanol production 

processes. 

(iii) The type of co-products produced 

with each type of renewable fuel or 

ethanol. 

(iv) A process heat fuel supply plan 

that includes all of the following: 

(A) For all process heat fuel, provide 

all the following information: 

(1) Each type of process heat fuel used 

at the facility. 

(2) Name and address of the company 

supplying each process heat fuel to the 

renewable fuel or foreign ethanol 

facility. 

(B) For biogas used for process heat, 

provide all the following information: 

(1) Locations from which the biogas 

was produced or extracted. 

(2) Name of suppliers of all biogas the 

producer purchases for use for process 

heat in the facility. 

(3) An affidavit from the biogas 

supplier stating its intent to supply 

biogas to the renewable fuel producer or 

foreign ethanol producer, and the 

quantity and energy content of the 

biogas that it intends to provide to the 

renewable fuel producer or foreign 

ethanol producer. 

(v) The following records that support 

the facility’s baseline volume as defined 

in § 80.1401 or, for foreign ethanol 

facilities, their production volume: 

(A) For all facilities except those 

described in paragraph (b)(1)(v)(B) of 

this section, copies of the most recent 

applicable air permits issued by the U.S. 

Environmental Protection Agency, state, 

local air pollution control agencies, or 

foreign governmental agencies and that 

govern the construction and/or 

operation of the renewable fuel or 

foreign ethanol facility. 

(B) For facilities claiming the 

exemption described in § 80.1403(c) or 

(d), applicable air permits issued by the 

U.S. Environmental Protection Agency, 

state, local air pollution control 

agencies, or foreign governmental 

agencies that govern the construction 

and/or operation of the renewable fuel 

facility that were: 

(1) Issued or revised no later than 

December 19, 2007, for facilities 

described in § 80.1403(c); or 

(2) Issued or revised no later than 

December 31, 2009, for facilities 

described in § 80.1403(d). 

(C) For all facilities, copies of 

documents demonstrating each facility’s 

actual peak capacity as defined in 

§ 80.1401 if the maximum rated annual 

volume output of renewable fuel is not 

specified in the air permits specified in 

paragraphs (b)(1)(v)(A) and (b)(1)(v)(B) 

of this section, as appropriate. 

(D) Such other records as may be 

requested by the Administrator. 

(vi) For facilities claiming the 

exemption described in § 80.1403(c) or 

(d), evidence demonstrating the date 

that construction commenced (as 

defined in § 80.1403(a)(1)) including all 

of the following: 

(A) Contracts with construction and 

other companies. 

(B) Applicable air permits issued by 

the U.S. Environmental Protection 

Agency, state, local air pollution control 

agencies, or foreign governmental 

agencies that governed the construction 

and/or operation of the renewable fuel 

facility during construction and when 

first operated. 

(vii)(A) For a producer of renewable 

fuel or a foreign producer of ethanol 

made from separated yard waste per 

§ 80.1426(f)(5)(i)(A): 

(1) The location of any municipal 

waste facility or other facility from 

which the waste stream consisting 

solely of separated yard waste is 

collected; and 

(2) A plan documenting how the 

waste will be collected and how the 

renewable fuel producer or foreign 

ethanol producer will conduct ongoing 

verification that such waste consists 

only of yard waste (and incidental other 

components such as paper and plastics) 

that is kept separate since generation 

from other waste materials. 

(B) For a producer of renewable fuel 

or a foreign producer of ethanol made 

from separated food waste per 

§ 80.1426(f)(5)(i)(B): 

(1) The location of any municipal 

waste facility or other facility from 

which the waste stream consisting 

solely of separated food waste is 

collected; and 

(2) A plan documenting how the 

waste will be collected, how the 

cellulosic and non-cellulosic portions of 

the waste will be quantified, and for 

ongoing verification that such waste 

consists only of food waste (and 

incidental other components such as 

paper and plastics) that is kept separate 

since generation from other waste 

materials. 

(viii) For a producer of renewable 

fuel, or a foreign producer of ethanol, 

made from separated municipal solid 

waste per § 80.1426(f)(5)(i)(C): 

(A) The location of the municipal 

waste facility from which the separated 

municipal solid waste is collected or 

from which material is collected that 

will be processed to produce separated 

municipal solid waste. 

(B) A plan providing ongoing 

verification that there is separation of 

recyclable paper, cardboard, plastics, 

rubber, textiles, metals, and glass wastes 

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to the extent reasonably practicable and 

which documents the following: 

(1) Extent and nature of recycling that 

occurred prior to receipt of the waste 

material by the renewable fuel producer 

or foreign ethanol producer; 

(2) Identification of available 

recycling technology and practices that 

are appropriate for removing recycling 

materials from the waste stream by the 

fuel producer or foreign ethanol 

producer; and 

(3) Identification of the technology or 

practices selected for implementation by 

the fuel producer or foreign ethanol 

producer including an explanation for 

such selection, and reasons why other 

technologies or practices were not. 

(C) Contracts relevant to materials 

recycled from municipal waste streams 

as described in § 80.1426(f)(5)(iii). 

(D) Certification by the producer that 

recycling is conducted in a manner 

consistent with goals and requirements 

of applicable State and local laws 

relating to recycling and waste 

management. 

(2) An independent third-party 

engineering review and written report 

and verification of the information 

provided pursuant to paragraph (b)(1) of 

this section. The report and verification 

shall be based upon a site visit and 

review of relevant documents and shall 

separately identify each item required 

by paragraph (b)(1) of this section, 

describe how the independent thirdparty evaluated the accuracy of the 

information provided, state whether the 

independent third-party agrees with the 

information provided, and identify any 

exceptions between the independent 

third-party’s findings and the 

information provided. 

(i) The verifications required under 

this section must be conducted by a 

professional engineer, as specified in 

paragraphs (b)(2)(i)(A) and (b)(2)(i)(B) of 

this section, who is an independent 

third-party. The verifying engineer must 

be: 

(A) For a domestic renewable fuel 

production facility or a foreign ethanol 

production facility, a professional 

engineer who is licensed by an 

appropriate state agency in the United 

States, with professional work 

experience in the chemical engineering 

field or related to renewable fuel 

production. 

(B) For a foreign renewable fuel 

production facility, an engineer who is 

a foreign equivalent to a professional 

engineer licensed in the United States 

with professional work experience in 

the chemical engineering field or related 

to renewable fuel production. 

(ii) To be considered an independent 

third-party under this paragraph (b)(2): 

(A) The third-party shall not be 

operated by the renewable fuel producer 

or foreign ethanol producer, or any 

subsidiary or employee of the renewable 

fuel producer or foreign ethanol 

producer. 

(B) The third-party shall be free from 

any interest in the renewable fuel 

producer or foreign ethanol producer’s 

business. 

(C) The renewable fuel producer or 

foreign ethanol producer shall be free 

from any interest in the third-party’s 

business. 

(D) Use of a third-party that is 

debarred, suspended, or proposed for 

debarment pursuant to the Governmentwide Debarment and Suspension 

regulations, 40 CFR part 32, or the 

Debarment, Suspension and Ineligibility 

provisions of the Federal Acquisition 

Regulations, 48 CFR, part 9, subpart 9.4, 

shall be deemed noncompliance with 

the requirements of this section. 

(iii) The independent third-party shall 

retain all records pertaining to the 

verification required under this section 

for a period of five years from the date 

of creation and shall deliver such 

records to the Administrator upon 

request. 

(iv) The renewable fuel producer or 

foreign ethanol producer must retain 

records of the review and verification, 

as required in § 80.1454(b)(6). 

(v) The third-party must provide to 

EPA documentation of his or her 

qualifications as part of the engineering 

review, including proof of appropriate 

professional license or foreign 

equivalent. 

(vi) Owners and operators of facilities 

described in § 80.1403(c) and (d) must 

submit the engineering review no later 

than December 31, 2010. 

(c) Importers. Importers of renewable 

fuel must provide EPA the information 

specified under § 80.76, if such 

information has not already been 

provided under the provisions of this 

part and must receive an EPA-issued 

company identification number prior to 

generating or owning RINs. Registration 

information must be submitted and 

accepted by EPA by July 1, 2010, or 60 

days prior to an importer importing any 

renewable fuel with assigned RINs or 

generating any RINs for renewable fuel, 

whichever dates comes later. 

(d) * * * 

(2) Any producer of renewable fuel 

who makes any other changes to a 

facility that will affect the producer’s 

registration information but will not 

affect the renewable fuel category for 

which the producer is registered per 

paragraph (b) of this section must 

update his registration information 7 

days prior to the change. 

(e) Any party who owns RINs, intends 

to own RINs, or intends to allow another 

party to separate RINs as per § 80.1440, 

but who is not covered by paragraph (a), 

(b), or (c) of this section, must provide 

EPA the information specified under 

§ 80.76, if such information has not 

already been provided under the 

provisions of this part and must receive 

an EPA-issued company identification 

number prior to owning any RINs. 

Registration information must be 

submitted at least 30 days prior to RIN 

ownership. 

(f) Registration for any facility 

claiming an exemption under 

§ 80.1403(c) or (d), must be submitted 

by July 1, 2013. EPA may in its sole 

discretion waive this requirement if it 

determines that the information 

submitted in any later registration can 

be verified by EPA in the same manner 

as would have been possible with a 

timely submission. 

* * * * * 

■ 17. Section 80.1451 is amended as 

follows: 

■ a. By revising paragraph (a)(1)(xi). 

■ b. By revising paragraphs (b)(1)(ii)(H), 

(b)(1)(ii)(K), (b)(1)(ii)(N), (b)(1)(ii)(P), 

(b)(1)(ii)(Q), and (b)(1)(ii)(R). 

■ c. By revising paragraphs (c)(1)(iii)(D) 

and (c)(2)(xv). 

■ d. By revising paragraphs (d) 

introductory text and (d)(1). 

■ e. By revising paragraph (e). 

§ 80.1451 What are the reporting 

requirements under the RFS program? 

(a) * * * 

(1) * * * 

(xi) A list of all RINs retired for 

compliance in the reporting period. 

* * * * * 

(b) * * * 

(1) * * * 

(ii) * * * 

(H) The fuel type of each batch. 

* * * * * 

(K) The types and quantities of 

feedstocks used. 

* * * * * 

(M) The type of co-products produced 

with each batch. 

(N) The quantity of co-products 

produced in each quarter. 

* * * * * 

(P) Producers of renewable electricity 

and producers or importers of biogas 

used for transportation as described in 

§ 80.1426(f)(10) and (11), shall report all 

of the following: 

(1) The total energy produced and 

supplied for use as a transportation fuel, 

in units of energy (for example, MMBtu 

or MW) based on metering of gas 

volume or electricity. 

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(2) The name and location of where 

the fuel is sold for use as a 

transportation fuel. 

(Q) Producers or importers of 

renewable fuel produced at facilities 

that use biogas for process heat as 

described in § 80.1426(f)(12), shall 

report the total energy supplied to the 

renewable fuel facility, in MMBtu based 

on metering of gas volume. 

(R) Producers or importers of 

renewable fuel made from separated 

municipal solid waste as described in 

§ 80.1426(f)(5)(i)(C), shall report the 

amount of paper, cardboard, plastics, 

rubber, textiles, metals, and glass 

separated from municipal solid waste 

for recycling. Reporting shall be in units 

of weight (in tons). 

* * * * * 

(c) * * * 

(1) * * * 

(iii) * * * 

(D) Transaction type (i.e., RIN buy, 

RIN sell, RIN separation, RIN retire, 

reinstated 2009 or 2010 RINs). 

* * * * * 

(2) * * * 

(xv) The total 2009 and 2010 retired 

RINs reinstated. 

* * * * * 

(d) Except for those producers using 

feedstocks subject to the aggregate 

compliance approach described in 

§ 80.1454(g), producers and RINgenerating importers of renewable fuel 

made from feedstocks that are planted 

crops and crop residue from existing 

foreign agricultural land, planted trees 

or tree residue from actively managed 

tree plantations, slash and precommercial thinnings from forestlands 

or biomass obtained from areas at risk 

of wildfire must submit quarterly 

reports according to the schedule in 

paragraph (f)(2) of this section that 

include all of the following: 

(1) A summary of the types and 

quantities of feedstocks used in that 

quarter. 

* * * * * 

(e) If EPA finds that the 2007 baseline 

amount of agricultural land has been 

exceeded in any year beginning in 2010, 

beginning on the first day of July of the 

following calendar year any producers 

or importers of renewable fuel as 

defined in § 80.1401 who use planted 

crops and/or crop residue from existing 

U.S. agricultural lands as feedstock 

must submit quarterly reports according 

to the schedule in paragraph (f)(2) of 

this section that include all of the 

following: 

(1) A summary of the types and 

quantities of feedstocks used in that 

quarter. 

(2) Electronic data identifying the 

land by coordinates of the points 

defining the boundaries from which 

each type of feedstock listed per 

paragraph (d)(1) of this section was 

harvested. 

(3) If electronic data identifying a plot 

of land have been submitted previously, 

producers and RIN-generating importers 

may submit a cross-reference to that 

electronic data. 

* * * * * 

■ 18. Section 80.1452 is amended as 

follows: 

■ a. By revising paragraphs (b) 

introductory text, (b)(2), (b)(4), (b)(6), 

(b)(9), (b)(13), and (b)(15). 

■ b. By revising paragraphs (c) 

introductory text, (c)(4), (c)(5), and 

(c)(7). 

§ 80.1452 What are the requirements 

related to the EPA Moderated Transaction 

System (EMTS)? 

* * * * * 

(b) Starting July 1, 2010, each time a 

domestic or foreign producer or 

importer of renewable fuel assigns RINs 

to a batch of renewable fuel pursuant to 

§ 80.1426(e), all the following 

information must be submitted to EPA 

via the submitting party’s EMTS 

account within five (5) business days of 

the date of RIN assignment. 

* * * * * 

(2) The EPA company registration 

number of the producer of renewable 

fuel. 

* * * * * 

(4) The EPA facility registration 

number of the producer of the 

renewable fuel. 

* * * * * 

(6) The D code of RINs generated for 

the batch. 

* * * * * 

(9) The fuel type of the batch. 

* * * * * 

(13) The type and quantity of 

feedstock(s) used for the batch. 

* * * * * 

(15) The type and quantity of coproducts produced with the batch of 

renewable fuel. 

* * * * * 

(c) Starting July 1, 2010, each time 

any party engages in a transaction 

involving RINs generated on or after 

July 1, 2010, all the following 

information must be submitted to EPA 

via the submitting party’s EMTS 

account within five (5) business days of 

the reportable event. The reportable 

event for a RIN purchase or sale occurs 

on the date of transfer per 

§ 80.1453(a)(4). The reportable event for 

a RIN separation or retirement occurs on 

the date of separation or retirement as 

described in § 80.1429. 

* * * * * 

(4) The RIN status (Assigned or 

Separated). 

(5) The D code of the RINs. 

* * * * * 

(7) The date of transfer per 

§ 80.1453(a)(4), if applicable. 

* * * * * 

■ 19. Section 80.1453 is amended as 

follows: 

■ a. By removing and reserving 

paragraph (a)(5). 

■ b. By revising paragraphs (a)(7), (a)(8), 

(a)(10), and (a)(11). 

§ 80.1453 What are the product transfer 

document (PTD) requirements for the RFS 

program? 

(a) * * * 

(5) [Reserved] 

* * * * * 

(7) The D code of the RINs. 

(8) The RIN status (Assigned or 

Separated). 

* * * * * 

(10) The associated reason for the sell 

or buy transaction (e.g., standard trade 

or remedial action). 

(11) Additional RIN-related 

information, as follows: 

(i) If assigned RINs are being 

transferred on the same PTD used to 

transfer ownership of the renewable 

fuel, then the assigned RIN information 

shall be identified on the PTD. 

(A) The identifying information for a 

RIN that is transferred in EMTS 

generically is the information specified 

in paragraphs (a)(1) through (a)(10) of 

this section. 

(B) The identifying information for a 

RIN that is transferred in EMTS 

uniquely is the information specified in 

paragraphs (a)(1) through (a)(10) of this 

section, the RIN generator company ID, 

the RIN generator facility ID, and the 

batch number. 

(C) The identifying information for a 

RIN that is generated prior to July 1, 

2010, is the 38-digit code pursuant to 

§ 80.1425, in its entirety. 

(ii) If assigned RINs are being 

transferred on a separate PTD from that 

which is used to transfer ownership of 

the renewable fuel, then the PTD which 

is used to transfer ownership of the 

renewable fuel shall include all the 

following: 

(A) The number of gallon-RINs being 

transferred. 

(B) A unique reference to the PTD 

which is transferring the assigned RINs. 

(C) The information specified in 

paragraphs (a)(11)(i)(A) through 

(a)(11)(i)(C) of this section, as 

appropriate. 

(iii) If no assigned RINs are being 

transferred with the renewable fuel, the 

PTD which is used to transfer 

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ownership of the renewable fuel shall 

state ‘‘No assigned RINs transferred.’’. 

(iv) If RINs have been separated from 

the renewable fuel or fuel blend 

pursuant to § 80.1429(b)(4), then all 

PTDs which are at any time used to 

transfer ownership of the renewable fuel 

or fuel blend shall state ‘‘This volume of 

fuel must be used in the designated 

form, without further blending.’’. 

* * * * * 

■ 20. Section 80.1454 is amended as 

follows: 

■ a. By revising paragraphs (a)(2) and 

(a)(3)(iv), and adding a new paragraph 

(a)(6). 

■ b. By revising paragraphs (c)(1)(i) 

introductory text, (c)(1)(i)(A), 

(c)(1)(ii)(A), and (c)(2)(ii). 

■ c. By revising paragraph (d) 

introductory text. 

■ d. By redesignating paragraph (d)(3) as 

paragraph (d)(4), adding a new 

paragraph (d)(3), and revising newly 

designated paragraph (d)(4). 

■ e. By revising paragraph (g). 

■ f. By revising paragraphs (h) 

introductory text and (h)(6)(v). 

■ g. By revising paragraph (j) 

introductory text. 

■ h. By redesignating paragraph 

(j)(2)(iii) as paragraph (j)(2)(iv), and 

adding a new paragraph (j)(2)(iii). 

■ i. By revising paragraphs (k)(1) 

through (k)(5). 

§ 80.1454 What are the recordkeeping 

requirements under the RFS program? 

(a) * * * 

(2) Copies of all reports submitted to 

EPA under § 80.1451(a), as applicable. 

(3) * * * 

(iv) Additional information, including 

contracts, correspondence, and invoices, 

related to details of the RIN transaction 

and its terms. 

* * * * * 

(6) For exported renewable fuel, 

invoices, bills of lading and other 

documents describing the exported 

renewable fuel. 

* * * * * 

(c) * * * 

(1) * * * 

(i) RIN-generating foreign producers 

and importers of renewable fuel made 

from feedstocks that are planted crops 

or crop residue from existing foreign 

agricultural land, planted trees or tree 

residue from actively managed tree 

plantations, slash and pre-commercial 

thinnings from forestlands or biomass 

obtained from wildland-urban interface 

must maintain all the following records 

to verify the location where these 

feedstocks were produced: 

(A) Maps or electronic data 

identifying the boundaries of the land 

where each type of feedstock was 

produced. 

* * * * * 

(ii)(A) RIN-generating foreign 

producers and importers of renewable 

fuel made from planted crops or crop 

residue from existing foreign 

agricultural land must keep records that 

serve as evidence that the land from 

which the feedstock was obtained was 

cleared or cultivated prior to December 

19, 2007 and actively managed or 

fallow, and nonforested on December 

19, 2007. RIN-generating foreign 

producers or importers of renewable 

fuel made from planted trees or tree 

residue from actively managed tree 

plantations must keep records that serve 

as evidence that the land from which 

the feedstock was obtained was cleared 

prior to December 19, 2007 and actively 

managed on December 19, 2007. 

* * * * * 

(2) * * * 

(ii) Copies of all reports submitted to 

EPA under §§ 80.1449 and 80.1451(b). 

* * * * * 

(d) Additional requirements for 

domestic producers of renewable fuel. 

Except as provided in paragraphs (g) 

and (h) of this section, beginning July 1, 

2010, any domestic producer of 

renewable fuel as defined in § 80.1401 

that generates RINs for such fuel must 

keep documents associated with 

feedstock purchases and transfers that 

identify where the feedstocks were 

produced and are sufficient to verify 

that feedstocks used are renewable 

biomass (as defined in § 80.1401) if RINs 

are generated. 

* * * * * 

(3) Domestic producers of renewable 

fuel made from planted crops or crop 

residue from existing foreign 

agricultural land must keep all the 

following records: 

(i) Records that serve as evidence that 

the land from which the feedstock was 

obtained was cleared or cultivated prior 

to December 19, 2007 and actively 

managed or fallow, and nonforested on 

December 19, 2007. The records must be 

provided by the feedstock producer and 

must include at least one of the 

following documents, which must be 

traceable to the land in question: 

(A) Sales records for planted crops, 

crop residue, or livestock. 

(B) Purchasing records for fertilizer, 

weed control, seeds, seedlings, or other 

nursery stock. 

(C) A written management plan for 

agricultural purposes. 

(D) Documentation of participation in 

an agricultural program sponsored by a 

Federal, State, or local government 

agency. 

(E) Documentation of land 

management in accordance with an 

agricultural product certification 

program. 

(ii) Records to verify the location 

where the feedstocks were produced: 

(A) Maps or electronic data 

identifying the boundaries of the land 

where each type of feedstock was 

produced; and 

(B) Bills of lading, product transfer 

documents or other commercial 

documents showing the quantity of 

feedstock purchased from each area 

identified in paragraph (d)(3)(ii)(A) of 

this section, and showing each transfer 

of custody of the feedstock from the 

location where it was produced to the 

renewable fuel facility. 

(4) Domestic producers of renewable 

fuel made from any other type of 

renewable biomass must have 

documents from their feedstock supplier 

certifying that the feedstock qualifies as 

renewable biomass as defined in 

§ 80.1401, describing the feedstock. 

Separated yard and food waste and 

separated municipal solid waste are 

subject to the requirements in paragraph 

(j) of this section. 

* * * * * 

(g) Aggregate compliance with 

renewable biomass requirement. Any 

producer or RIN-generating importer of 

renewable fuel made from planted crops 

or crop residue from existing U.S. 

agricultural land as defined in § 80.1401 

is subject to the aggregate compliance 

approach and is not required to 

maintain feedstock records unless EPA 

publishes a finding that the 2007 

baseline amount of agricultural land has 

been exceeded. 

(1) EPA will make a finding 

concerning whether the 2007 baseline 

amount of U.S. agricultural land has 

been exceeded and will publish this 

finding in the Federal Register by 

November 30 of the year preceding the 

compliance period. 

(2) If EPA finds that the 2007 baseline 

amount of U.S. agricultural land has 

been exceeded, beginning on the first 

day of July of the compliance period in 

question any producer or RINgenerating importer of renewable fuel 

made from planted crops and/or crop 

residue from U.S. agricultural lands as 

feedstock for renewable fuel for which 

RINs are generated must keep all the 

following records: 

(i) Records that serve as evidence that 

the land from which the feedstock was 

obtained was cleared or cultivated prior 

to December 19, 2007 and actively 

managed or fallow, and nonforested on 

December 19, 2007. The records must be 

provided by the feedstock producer and 

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must include at least one of the 

following documents, which must be 

traceable to the land in question: 

(A) Sales records for planted crops, 

crop residue or livestock. 

(B) Purchasing records for fertilizer, 

weed control, seeds, seedlings, or other 

nursery stock. 

(C) A written management plan for 

agricultural purposes. 

(D) Documentation of participation in 

an agricultural program sponsored by a 

Federal, state, or local government 

agency. 

(E) Documentation of land 

management in accordance with an 

agricultural product certification 

program. 

(ii) Records to verify the location 

where the feedstocks were produced: 

(A) Maps or electronic data 

identifying the boundaries of the land 

where each type of feedstock was 

produced; and 

(B) Bills of lading, product transfer 

documents or other commercial 

documents showing the quantity of 

feedstock purchased from each area 

identified in paragraph (g)(2)(ii)(A) of 

this section, and showing each transfer 

of custody of the feedstock from the 

location where it was produced to the 

renewable fuel facility. 

(h) Alternative renewable biomass 

tracking requirement. Any foreign or 

domestic renewable fuel producer or 

RIN-generating importer may comply 

with the following alternative renewable 

biomass tracking requirement instead of 

the recordkeeping requirements in 

paragraphs (c)(1), (d), and (g) of this 

section: 

* * * * * 

(6) * * * 

(v) EPA may revoke any approval of 

a survey plan under this section for 

cause, including an EPA determination 

that the approved survey plan had 

proved inadequate in practice or that it 

was not fully implemented. 

* * * * * 

(j) A renewable fuel producer that 

produces fuel from separated yard and 

food waste as described in 

§ 80.1426(f)(5)(i)(A) and (B) and 

separated municipal solid waste as 

described in § 80.1426(f)(5)(i)(C) shall 

keep all the following additional 

records: 

* * * * * 

(2) * * * 

(iii) Documents demonstrating the 

fuel sampling methods used pursuant to 

§ 80.1426(f)(9) and the results of all fuel 

analyses to determine the non-fossil 

fraction of fuel made from separated 

municipal solid waste. 

(k) * * * 

(1) Contracts and documents 

memorializing the sale of biogas or 

renewable electricity for use as 

transportation fuel relied upon in 

§ 80.1426(f)(10), § 80.1426(f)(11), or for 

use of biogas for use as process heat to 

make renewable fuel as relied upon in 

§ 80.1426(f)(12), and the transfer of title 

of the biogas or renewable electricity 

and all associated environmental 

attributes from the point of generation to 

the facility which sells or uses the fuel 

for transportation purposes. 

(2) Documents demonstrating the 

volume and energy content of biogas, or 

kilowatts of renewable electricity, relied 

upon under § 80.1426(f)(10) that was 

delivered to the facility which sells or 

uses the fuel for transportation 

purposes. 

(3) Documents demonstrating the 

volume and energy content of biogas, or 

kilowatts of renewable electricity, relied 

upon under § 80.1426(f)(11), or biogas 

relied upon under § 80.1426(f)(12), that 

was placed into the common carrier 

pipeline (for biogas) or transmission line 

(for renewable electricity). 

(4) Documents demonstrating the 

volume and energy content of biogas, or 

kilowatts of renewable electricity, relied 

upon under § 80.1426(f)(12) at the point 

of distribution. 

(5) 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. 

* * * * * 

■ 21. Section 80.1455 is amended by 

revising paragraphs (a) introductory 

text, (b)(1), (c) introductory text, and 

(d)(1) to read as follows: 

§ 80.1455 What are the small volume 

provisions for renewable fuel production 

facilities and importers? 

(a) Standard volume threshold. 

Renewable fuel production facilities 

located within the United States that 

produce less than 10,000 gallons of 

renewable fuel each year, and importers 

who import less than 10,000 gallons of 

renewable fuel each year, are not subject 

to the requirements of § 80.1426(a) and 

(e) related to the generation and 

assignment of RINs to batches of 

renewable fuel. Except as stated in 

paragraph (b) of this section, such 

production facilities and importers that 

do not generate and assign RINs to 

batches of renewable fuel are also 

exempt from all the following 

requirements of this subpart: 

* * * * * 

(b)(1) Renewable fuel production 

facilities and importers who produce or 

import less than 10,000 gallons of 

renewable fuel each year and that 

generate and assign RINs to batches of 

renewable fuel are subject to the 

provisions of §§ 80.1426, 80.1449 

through 80.1452, 80.1454, and 80.1464. 

* * * * * 

(c) Temporary volume threshold. 

Renewable fuel production facilities 

located within the United States that 

produce less than 125,000 gallons of 

renewable fuel each year are not subject 

to the requirements of § 80.1426(a) and 

(e) related to the generation and 

assignment of RINs to batches of 

renewable fuel for up to three years, 

beginning with the calendar year in 

which the production facility produces 

its first gallon of renewable fuel. Except 

as stated in paragraph (d) of this section, 

such production facilities that do not 

generate and assign RINs to batches of 

renewable fuel are also exempt from all 

the following requirements of this 

subpart for a maximum of three years: 

* * * * * 

(d)(1) Renewable fuel production 

facilities who produce less than 125,000 

gallons of renewable fuel each year and 

that generate and assign RINs to batches 

of renewable fuel are subject to the 

provisions of §§ 80.1426, 80.1449 

through 80.1452, 80.1454, and 80.1464. 

* * * * * 

■ 22. Section 80.1460 is amended by 

revising paragraph (c)(2) to read as 

follows: 

§ 80.1460 What acts are prohibited under 

the RFS program? 

* * * * * 

(c) * * * 

(2) Use a validly generated RIN to 

meet the person’s RVOs under 

§ 80.1427, or separate and transfer a 

validly generated RIN, where the person 

using the RIN ultimately uses the 

renewable fuel volume associated with 

the RIN in an application other than for 

use as transportation fuel, jet fuel, or 

heating oil (as defined in § 80.1401). 

* * * * * 

■ 23. Section 80.1463 is amended by 

revising paragraphs (a) and (b) to read 

as follows: 

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26048 Federal Register / Vol. 75, No. 89 / Monday, May 10, 2010 / Rules and Regulations 

§ 80.1463 What penalties apply under the 

RFS program? 

(a) Any person who is liable for a 

violation under § 80.1461 is subject to a 

civil penalty as specified in sections 205 

and 211(d) of the Clean Air Act, for 

every day of each such violation and the 

amount of economic benefit or savings 

resulting from each violation. 

(b) Any person liable under 

§ 80.1461(a) for a violation of 

§ 80.1460(c) for failure to meet its RVOs, 

or § 80.1460(e) for causing another 

person to fail to meet their RVOs during 

any compliance period, is subject to a 

separate day of violation for each day in 

the compliance period. 

* * * * * 

■ 24. Section 80.1464 is amended as 

follows: 

■ a. By revising paragraphs (a)(1)(i)(A) 

and (a)(1)(iv)(A), adding paragraph 

(a)(1)(iv)(D), and removing paragraph 

(a)(1)(vii). 

■ b. By revising paragraphs (b)(1)(i) and 

(b)(1)(ii). 

■ c. By revising paragraph (c)(2)(ii). 

§ 80.1464 What are the attest engagement 

requirements under the RFS program? 

* * * * * 

(a) * * * 

(1) * * * 

(i) * * * 

(A) The obligated party’s volume of 

all products listed in § 80.1407(c) and 

(e), or the exporter’s volume of each 

category of exported renewable fuel 

identified in § 80.1430(b)(1) through 

(b)(4). 

* * * * * 

(iv) For exporters, perform all of the 

following: 

(A) Obtain the database, spreadsheet, 

or other documentation that the 

exporter maintains for all exported 

renewable fuel. 

* * * * * 

(D) Select sample batches in 

accordance with the guidelines in 

§ 80.127 from each separate category of 

renewable fuel exported and identified 

in § 80.1451(a); obtain invoices, bills of 

lading and other documentation for the 

representative samples; state whether 

any of these documents refer to the 

exported fuel as advanced biofuel or 

cellulosic biofuel; and report as a 

finding whether or not the exporter 

calculated an advanced biofuel or 

cellulosic biofuel RVO for these fuels 

pursuant to § 80.1430(b)(1) or 

§ 80.1430(b)(3). 

* * * * * 

(b) * * * 

(1) * * * 

(i) Obtain and read copies of the 

reports required under § 80.1451(b)(1), 

(d), and (e) for the compliance year. 

(ii) Obtain production data for each 

renewable fuel batch by type of 

renewable fuel that was produced or 

imported during the year being 

reviewed; compute the number of 

gallon–RINs production dates, types, 

volumes of denaturant and applicable 

equivalence values, and production 

volumes for each batch; report the total 

RINs generated during the year being 

reviewed; and state whether this 

information agrees with the party’s 

reports to EPA. Report as a finding any 

exceptions. 

* * * * * 

(c) * * * 

(2) * * * 

(ii) Obtain the database, spreadsheet, 

or other documentation used to generate 

the information in the RIN activity 

reports; compare the RIN transaction 

samples reviewed under paragraph 

(c)(1) of this section with the 

corresponding entries in the database or 

spreadsheet and report as a finding any 

discrepancies; compute the total 

number of current-year and prior-year 

RINs owned at the start and end of each 

quarter, purchased, sold, retired, 

separated, and reinstated and for parties 

that reported RIN activity for RINs 

assigned to a volume of renewable fuel, 

the volume of renewable fuel owned at 

the end of each quarter, as represented 

in these documents; and state whether 

this information agrees with the party’s 

reports to EPA. 

* * * * * 

■ 25. Section 80.1465 is amended by 

revising paragraphs (a)(6) and (d)(1)(ii) 

to read as follows: 

§ 80.1465 What are the additional 

requirements under this subpart for foreign 

small refiners, foreign small refineries, and 

importers of RFS–FRFUEL? 

(a) * * * 

(6) Non-RFS–FRFUEL is 

transportation fuel produced at a foreign 

refinery that has not received a small 

refinery exemption under § 80.1441 or 

by a foreign refiner that has not received 

a small refiner exemption under 

§ 80.1442. 

* * * * * 

(d) * * * 

(1) * * * 

(ii) Determine the volume of RFS– 

FRFUEL loaded onto the vessel, 

temperature-corrected to 60°F (exclusive 

of any tank bottoms before loading). 

* * * * * 

[FR Doc. 2010–10851 Filed 5–7–10; 8:45 am] 

BILLING CODE 6560–50–P 

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