62462 Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Rules and Regulations 

OHIO—PM2.5—Continued 

[Annual NAAQS] 

Designated area 

Designation a

Date 1 Type 

Stark County ....................................................................................................................................................... 10/22/13 Attainment. 

* * * * * * * 

a Includes Indian Country located in each county or area, except as otherwise specified. 

1This date is 90 days after January 5, 2005, unless otherwise noted. 

* * * * * 

OHIO—PM2.5

[24-Hour NAAQS] 

Designated area 

Designation for the 1997 NAAQSa Designation for the 2006 

NAAQSa

Date 1 Type Date 2 Type 

*******

Canton-Massillon, OH: 

Stark County ............................................. ........................ Unclassifiable/Attainment ................................. 10/22/13 Attainment. 

* * * * * * * 

a Includes Indian Country located in each county or area, except as otherwise specified. 

1This date is 90 days after January 5, 2005, unless otherwise noted. 

2This date is 30 days after November 13, 2009, unless otherwise noted. 

[FR Doc. 2013–24282 Filed 10–21–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 80 

[EPA–HQ–OAR–2012–0223; FRL–9900–89– 

OAR] 

RIN 2060–AR87 

Regulation of Fuels and Fuel 

Additives: Modifications to Renewable 

Fuel Standard Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: In this final rule EPA is 

amending the definition of ‘‘heating oil’’ 

in the regulations for the Renewable 

Fuel Standard (RFS) program under 

section 211(o) of the Clean Air Act. This 

amendment expands the scope of 

renewable fuels that can be used to 

show compliance with the RFS 

renewable fuel volume obligations by 

adding an additional category of 

compliant renewable fuel referred to as 

‘‘fuel oils,’’ produced from qualifying 

renewable biomass and used to generate 

heat to warm buildings or other 

facilities where people live, work, 

recreate, or conduct other activities. 

Producers or importers of fuel oil that 

meets the amended definition of heating 

oil will be allowed to generate 

Renewable Identification Numbers 

(RINs), provided that the fuel oil meets 

all other requirements specified in the 

RFS regulations. Fuel oils used to 

generate process heat, power, or other 

functions are not included in this 

additional category of heating oil. All 

fuels previously included in the 

definition of heating oil continue to be 

included as heating oil for purposes of 

the RFS program. 

We are also finalizing specific 

registration, reporting, product transfer 

document, and recordkeeping 

requirements applicable specifically to 

these fuel oils, necessary to demonstrate 

that the fuel oil volume for which RINs 

were generated was or will be used to 

heat buildings for climate control for 

human comfort prior to generating RINs. 

The final rule is being adopted with 

only minor changes from the rule 

proposed on October 9, 2012, and 

responses to public comments are 

provided. 

DATES: This rule is effective on 

December 23, 2013. 

ADDRESSES: EPA established a docket 

for this action under the Docket ID No. 

EPA–HQ–OAR–2012–0223. All 

documents in the docket are listed in 

the www.regulations.gov index. 

Although listed in the index, some 

information may not be 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 at 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket and 

Information Center, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave. 

NW., Washington, DC 20460. 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 Docket is (202) 566– 

1742. You may be charged a reasonable 

fee for photocopying docket materials, 

as provided for in 40 CFR part 2. 

FOR FURTHER INFORMATION CONTACT: 

Suzanne Bessette, Office of 

Transportation and Air Quality, U.S. 

Environmental Protection Agency, 2000 

Traverwood Dr., Ann Arbor, MI 48105; 

telephone number: (734) 214–4703; fax 

number: (734) 214–4869; email address: 

bessette.suzanne@epa.gov. 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Rules and Regulations 62463 

1The Energy Independence and Security Act of 

2007 (EISA) amended section 211(o) of the Clean 

Air Act, which was originally added by the Energy 

Policy Act of 2005 (EPAct). 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

A. Purpose 

This final rule expands the regulatory 

definition of ‘‘heating oil’’ for purposes 

of the RFS program. This expansion of 

the types of fuel that can be considered 

heating oil under the RFS program 

furthers the goals of the Energy 

Independence and Security Act of 2007 

(EISA) to reduce the use of fossil fuels 

and encourage increased production of 

renewable fuels. The EPA expects this 

rule to allow for the generation of 

additional advanced and cellulosic 

RINs, which will help enable obligated 

parties under the RFS to meet their 

renewable fuel obligations and offer 

their customers more alternative fuel 

products. 

B. Summary of Today’s Rule 

This rule amends the definition of 

‘‘heating oil’’ in 40 CFR 80.1401 in the 

RFS program promulgated under section 

211(o) of the Clean Air Act (CAA). This 

amendment expands the scope of 

renewable fuels that can generate RINs 

as heating oil by adding an additional 

category of fuel oils that will be used to 

generate heat to warm buildings or other 

facilities where people live, work, 

recreate, or conduct other activities. 

Fuel oils used to generate process heat, 

power, or other functions are not 

included in this additional category of 

heating oil. This rule will allow 

producers or importers of fuel oil that 

meets the amended definition of heating 

oil to generate RINs, provided that other 

requirements specified in the 

regulations are met. These include new 

registration, reporting, product transfer 

document, and recordkeeping 

requirements applicable specifically to 

these fuel oils, necessary to demonstrate 

that the fuel oil volume was or will be 

used to heat buildings for climate 

control for human comfort prior to 

generating RINs. 

The amendment expands the fuels 

included in the definition of heating oil 

for purposes of the RFS program. All 

fuels previously included in the 

definition of heating oil continue to be 

included as heating oil under 40 CFR 

80.1401 for purposes of the RFS 

program. 

C. Costs and Benefits 

This amendment provides new 

opportunities for RIN generation under 

the RFS program. Therefore, EPA 

believes that this amendment will 

impose no new direct costs or burdens 

on regulated entities beyond the 

minimal costs associated with reporting 

and recordkeeping requirements. At the 

same time, EPA does not believe that 

this amendment will adversely impact 

emissions. 

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, as well as 

those involved with the production, 

distribution and sale of other fuel oils 

that are not transportation fuel. 

Regulated categories and entities 

affected by this action include: 

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, subpart 

M of title 40 of the Code of Federal 

Regulations. If you have any questions 

regarding applicability of this action to 

a particular entity, consult the person in 

the preceding FOR FURTHER INFORMATION

CONTACT section above. 

III. Amendments to the Renewable Fuel 

Standard Program 

A. Amended Definition of Heating Oil 

EPA is issuing this final rule to amend 

the definition of heating oil in 40 CFR 

80.1401 in the RFS program 

promulgated under section 211(o) of the 

CAA.1 This amendment will expand the 

scope of renewable fuels that can 

generate RINs as heating oil to include 

fuel oil that will be used to generate 

heat to warm buildings or other 

facilities where people live, work, 

recreate, or conduct other activities. 

This rule will allow producers or 

importers of fuel oil that meets the 

amended definition of heating oil to 

generate RINs, provided that other 

requirements specified in the 

regulations are met, including new 

registration, reporting, product transfer 

document, and recordkeeping 

requirements being finalized in this 

action that are applicable specifically to 

these fuel oils. Fuel oils used to generate 

process heat, power, or other functions 

will not be approved for RIN generation 

under the amended definition of heating 

oil, as these fuels are not within the 

scope of ‘‘home heating oil’’ as that term 

is used in EISA, for the RFS program. 

All fuels previously included in the 

definition of heating oil continue to be 

included as heating oil under 40 CFR 

80.1401 for purposes of the RFS 

program. 

The RFS program requires the 

production and use of renewable fuel to 

replace or reduce the quantity of fossil 

fuel present in transportation fuel. 

Under EPA’s RFS program, producers or 

importers of qualified renewable fuel 

generate RINs which represent the 

volume of renewable fuel that has been 

produced or imported. RINs are 

transferred to the producers or 

importers of gasoline and diesel 

transportation fuel who then use the 

RINs to demonstrate compliance with 

their renewable fuel volume obligations. 

RINs also serve the function of credits 

under the RFS program for regulated 


emcdonald on DSK67QTVN1PROD with RULES
62464 Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Rules and Regulations 

2 75 FR 14670, 14686 (March 26, 2010). 

3See CAA sections 211(o)(1)(A) and (o)(5)(E). 

4 75 FR 14670, 14687 (March 26, 2010). 

5The reference to ‘‘stationary diesel engines’’ was 

removed from the definition of 40 CFR 80.2(ccc) as 

part of EPA’s final rule concerning oceangoing 

vessels. 75 FR 22896 (April 30, 2010). Deleting this 

example from the definition avoids confusion that 

otherwise might arise, given the requirements under 

40 CFR 60.4207 for use of ultra low sulfur diesel 

fuel in certain stationary diesel engines. See 40 CFR 

60.4207, applicable beginning with model year 

2007. 

6 77 FR 61281 (October 9, 2012); 77 FR 61313 

(October 9, 2012). 

7 77 FR 72746 (December 6, 2012). 

parties who exceed their annual volume 

obligation. 

Congress provided that EPA could 

establish provisions for the generation 

of credits by producers of certain 

renewable fuel that was not used in 

transportation fuel, called ‘‘additional 

renewable fuel.’’ 2 Additional renewable 

fuel is defined as fuel produced from 

renewable biomass that is used to 

replace or reduce the quantity of fossil 

fuel present in home heating oil or jet 

fuel.3 In essence, additional renewable 

fuel has to meet all of the requirements 

applicable to qualify it as renewable fuel 

under the regulations, with the only 

difference being that it is blended into 

or is home heating oil or jet fuel instead 

of transportation fuel. This does not 

change the volume requirements of the 

statute itself, but it can provide an 

important additional avenue for parties 

to generate RINs for use by obligated 

parties, thus promoting the overall costeffective production and use of 

renewable fuels. 

EPA addressed the provision for 

additional renewable fuels in the final 

rule published on March 26, 2010 (74 

FR 14670), specifically addressing the 

category of ‘‘home heating oil.’’ EPA 

determined that this term was 

ambiguous, and defined it by 

incorporating the existing definition of 

heating oil at 40 CFR 80.2(ccc). EPA 

stated that: 

EISA uses the term ‘‘home heating oil’’ in 

the definition of ‘‘additional renewable fuel.’’ 

The statute does not clarify whether the term 

should be interpreted to refer only to heating 

oil actually used in homes, or to all fuel of 

a type that can be used in homes. We note 

that the term ‘home heating oil’ is typically 

used in industry in the latter manner, to refer 

to a type of fuel, rather than a particular use 

of it, and the term is typically used 

interchangeably in industry with heating oil, 

heating fuel, home heating fuel, and other 

terms depending on the region and market. 

We believe this broad interpretation based on 

typical industry usage best serves the goals 

and purposes of the statute. If EPA 

interpreted the term to apply only to heating 

oil actually used in homes, we would 

necessarily require tracking of individual 

gallons from production through ultimate 

[use] in homes in order to determine 

eligibility of the fuel for RINs. Given the 

fungible nature of the oil delivery market, 

this would likely be sufficiently difficult and 

potentially expensive so as to discourage the 

generation of RINs for renewable fuels used 

as home heating oil. This problem would be 

similar to that which arose under RFS1 for 

certain renewable fuels (in particular 

biodiesel) that were produced for the 

highway diesel market but were also suitable 

for other markets such as heating oil and 

non-road applications where it was unclear 

at the time of fuel production (when RINs are 

typically generated under the RFS program) 

whether the fuel would ultimately be eligible 

to generate RINs. Congress eliminated the 

complexity with regards to non-road 

applications in RFS2 by making all fuels 

used in both motor vehicle and nonroad 

applications subject to the renewable fuel 

standard program. We believe it best to 

interpret the Act so as to also avoid this type 

of complexity in the heating oil context. 

Thus, under today’s regulations, RINs may be 

generated for renewable fuel used as ‘‘heating 

oil,’’ as defined in existing EPA regulations 

at § 80.2(ccc). In addition to simplifying 

implementation and administration of the 

Act, this interpretation will best realize the 

intent of EISA to reduce or replace the use 

of fossil fuels.4

The existing definition of heating oil at 

40 CFR 80.2(ccc) is ‘‘any #1, #2, or nonpetroleum diesel blend that is sold for 

use in furnaces, boilers, and similar 

applications and which is commonly or 

commercially known or sold as heating 

oil, fuel oil, or similar trade names, and 

that is not jet fuel, kerosene, or 

MVNRLM [Motor Vehicle, Non-Road, 

Locomotive and Marine] diesel fuel.’’ 5

The existing definition of nonpetroleum diesel at 40 CFR 80.2(sss) is 

‘‘a diesel fuel that contains at least 80 

percent mono-alkyl esters of long chain 

fatty acids derived from vegetable oils or 

animal fats.’’ Thus, under the existing 

definitions, RINs may be generated for 

heating oil that is either a #1 or #2 fuel 

oil or a non-petroleum diesel blend 

containing at least 80 percent monoalkyl esters of long chain fatty acids 

derived from vegetable oils or animal 

fats, as well as meeting all other 

requirements of the RFS regulations for 

renewable fuels. 

The existing regulations do not allow 

a party to generate RINs for a nonpetroleum fuel that is used as a heating 

oil unless the fuel contains at least 80 

percent mono-alkyl esters of long chain 

fatty acids derived from vegetable oils or 

animal fats. Since the promulgation of 

the March 26, 2010 rule, we have 

received a number of requests from 

producers to consider expanding the 

scope of the home heating oil provision 

to include additional fuel oils that are 

produced from qualifying renewable 

biomass but do not meet the regulatory 

definition of heating oil because they 

are not #1 or #2 diesel and are not nonpetroleum diesel containing at least 80 

percent mono-alkyl esters. Parties 

raising this issue have suggested that 

limiting ‘‘home heating oil’’ to the fuel 

types defined in 40 CFR 80.2(ccc) 

disqualifies certain types of renewable 

fuel oils that could be used for home 

heating and that this limitation does not 

align with our reasoning in the 

preamble to take a broad interpretation 

of the term ‘‘home heating oil’’ in CAA 

section 211(o). 

EPA considered this issue further and 

issued a direct final rule and parallel 

proposed rule to amend the definition of 

heating oil in the RFS program to 

expand the scope of fuels that can 

generate RINs as heating oil under the 

RFS program.6 EPA received adverse 

public comment and withdrew the 

direct final rule.7

After considering the public 

comments, EPA is revising the 

definition of heating oil for purposes of 

the RFS program to include an 

additional category of fuel oil, as 

proposed. RINs may be generated for an 

additional category of renewable fuel 

that is fuel oil used to heat interior 

spaces of homes or buildings to control 

ambient climate for human comfort. 

This additional category will not 

include fuel oils used to generate 

process heat, power, or other functions. 

The fuel oil must be used to generate 

heat to warm buildings or other 

facilities where people live, work, 

recreate, or conduct other activities. The 

fuel oil must only be used in heating 

applications, where the sole purpose of 

the fuel is for heating and not for any 

other combined use such as process 

energy use. This is in addition to the 

fuel oils previously included in the 

definition of heating oil at 40 CFR 

80.1401, which refers to section 

80.2(ccc). All fuels previously included 

in the definition of heating oil continue 

to be included as heating oil under 40 

CFR 80.1401 for purposes of the RFS 

program. 

EPA believes this expansion of the 

scope of the home heating oil provision 

is appropriate and authorized under 

CAA section 211(o). As EPA described 

in the RFS final rule, Congress did not 

define the statutory term ‘‘home heating 

oil,’’ and it does not have a fixed or 

definite commercial meaning. In the 

March 26, 2010 final rule, EPA focused 

on whether the provision was limited to 

heating oil actually used in homes. EPA 

noted that the term home heating oil is 

usually used in the industry to refer to 

one type of fuel, and not to a specific 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Rules and Regulations 62465 

8See Table 1 to 40 CFR § 80.1426. 

use for the fuel. Given this more general 

usage of the term, EPA defined home 

heating oil by identifying the types of 

fuel oils that are typically used to heat 

homes. EPA determined this was a 

reasonable interpretation of an 

ambiguous statutory provision that 

simplified implementation and 

administration of the Act and promoted 

achievement of the goals of the RFS 

program. 

The expansion of the definition 

adopted in this rulemaking will add a 

category to the definition to include two 

types of fuel oils not included in the 

original definition of heating oil in 

section 80.1401. First, the new category 

will include additional fuel oils that do 

not meet the definition of heating oil in 

section 80.2(ccc) but are actually used to 

heat homes. 

Second, the new category will include 

fuel oils that are used to heat facilities 

other than homes to control ambient 

climate for human comfort. Under the 

original definition of heating oil in 

section 80.1401, a fuel oil meets the 

definition of heating oil based on its 

physical properties, not whether it is 

actually used to heat a home. In the new 

category added in the amended 

definition, the additional qualifying fuel 

oils will be used for heating places 

where people live, work, or recreate, 

and not just their homes. It focuses more 

on what is getting heated—people—and 

not where the people are located. EPA 

believes this is a reasonable 

interpretation of the phrase ‘‘home 

heating oil.’’ This interpretation 

recognizes the ambiguity of the phrase 

used by Congress, which is not defined 

and does not have a clear and definite 

commercial meaning. It gives reasonable 

meaning to the term home heating oil, 

both by limiting the additional fuel oils 

to fuel oils used for heating facilities 

that people will occupy, and excluding 

the additional fuel oils when used for 

other purposes such as generation of 

energy used in the manufacture of 

products. It also focuses on the aspect 

of home that is most important here— 

the heating of people. This 

interpretation also promotes the 

purposes of the EISA in that it will 

increase the production and use of 

renewable fuels by introducing new 

sources of fuel producers to the RFS 

program. It will specifically promote the 

RFS programmatic goals by facilitating 

the generation of RINs for renewable 

fuels that reduce emissions of 

greenhouse gases compared to fossil 

fuels. For example, EPA has received 

information from Envergent 

Technologies (an alliance of Ensyn and 

UOP/Honeywell) that such an expanded 

definition of heating oil would result in 

nearly immediate production of 3.5 

million gallons from their existing 

facilities, with an additional projected 

production of up to 45 million gallons 

per year within 24 months following 

regulatory action. Based on this 

information from Envergent 

Technologies and other parties who 

commented on the proposed rule, the 

application of the expanded definition 

of heating oil to the entire industry 

would result in the production of many 

more million additional gallons of RINgenerating renewable fuel. 

B. Lifecycle Greenhouse Gas Assessment 

of the Amended Definition of Heating 

Oil 

EPA has also evaluated whether any 

revisions will need to be made to Table 

1 to 40 CFR 80.1426. Table 1 lists the 

applicable D codes for each fuel 

pathway for use in generating RINs in 

the RFS regulations in light of the 

additional fuel oils included in the 

expanded definition of heating oil. As 

discussed below, EPA has determined 

that the existing D code entries for 

heating oil in Table 1 to 40 CFR 80.1426 

will continue to be appropriate and will 

not need to be revised in light of the 

expanded definition of heating oil. 

Under the RFS program, EPA must 

assess lifecycle greenhouse gas (GHG) 

emissions to determine which fuel 

pathways meet the GHG reduction 

thresholds for the four required 

renewable fuel categories. The RFS 

program requires a 20% reduction in 

lifecycle GHG emissions for 

conventional renewable fuel (except for 

grandfathered facilities and volumes), a 

50% reduction for biomass-based diesel 

or advanced biofuel, and a 60% 

reduction for cellulosic biofuel. For the 

final March 2010 RFS rule, EPA 

assessed the lifecycle greenhouse gas 

emissions of multiple renewable fuel 

pathways and classified pathways based 

on these GHG thresholds, as compared 

to the EISA statutory baseline.8 In 

addition, EPA has added several 

pathways since the final rule was 

published. Expanding the definition of 

heating oil does not affect these prior 

analyses. 

The fuel pathways consist of fuel 

type, feedstock, and production process 

requirements. GHG emissions are 

assessed at all points throughout the 

lifecycle pathway. For instance, 

emissions associated with sowing and 

harvesting of feedstocks and in the 

production, distribution and use of the 

renewable fuel are examples of what are 

accounted for in the GHG assessment. A 

full accounting of emissions is then 

compared with the petroleum baseline 

emissions for the conventional fuel 

being replaced. The lifecycle GHG 

emissions determination is one factor 

used to determine compliance with the 

regulations. 

There are currently several fuel 

pathways that list heating oil as a fuel 

type with various types of feedstock and 

production processes used, qualifying 

the heating oil pathways as either 

biomass-based diesel, advanced, or 

cellulosic. The determinations for these 

different pathways were based on the 

current definition of heating oil. The 

pathways also include several types of 

distillate product including diesel fuel, 

jet fuel and heating oil. 

The lifecycle calculations and 

threshold determinations are based on 

the GHG emissions associated with 

production of the fuel and processing of 

the feedstock. Converting biomass 

feedstocks such as triglycerides (if oils 

are used as feedstock) or hemi-cellulose, 

cellulose, lignin, starches, etc. (if solid 

biomass feedstock is used) into heating 

oil products can be accomplished 

through either a biochemical or 

thermochemical process converting 

those molecules into a fuel product. The 

existing heating oil pathways were 

based on the original definition of 

heating oil in section 80.1401, and were 

based on a certain level of processing to 

produce #1, #2, or a non-petroleum 

diesel blend and the related energy use 

and GHG emissions that were part of the 

lifecycle determination for those fuel 

pathways. 

The main difference between the 

original definition of heating oil, which 

refers to #1, #2, or a non-petroleum 

diesel blend, and the new category 

added in the expanded definition 

adopted in this rulemaking is that the 

new category will include heavier types 

of fuel oil with larger molecules. Based 

on the type of conversion process, 

producing these heavier fuel oil 

products versus the #1, #2, or a nonpetroleum diesel blend will affect the 

amount of energy used and therefore the 

GHG emissions from the process. There 

are two main paths for producing a fuel 

oil product from biomass. In one the 

biomass is converted into a biocrude 

which is further refined into lighter 

products. In this case, producing a 

heavier fuel oil product will require less 

processing energy and have lower GHG 

emissions than converting the same 

feedstock into a #1, #2, or nonpetroleum diesel blend. 

In the other type of process, the 

compounds in the biomass are changed 

into a set of intermediary products, such 

as hydrogen (H) and carbon monoxide 


emcdonald on DSK67QTVN1PROD with RULES
62466 Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Rules and Regulations 

9This describes the Fischer-Tropsch process. 

Other processes rely on forming different sets of 

compounds from the biomass, and then producing 

the fuel product from the set of compounds. 

10 ‘‘Regulation of Fuel and Fuel Additives; 

Changes to Renewable Fuel Standard Program,’’ 75 

FR 14670, available at http://www.gpo.gov/fdsys/ 

pkg/FR-2010-03-26/pdf/2010-3851.pdf. See also, 

EPA’s summary factsheet, ‘‘EPA Lifecycle Analysis 

of Greenhouse Gas Emissions from Renewable 

Fuels,’’ available at http://www.epa.gov/otaq/ 

renewablefuels/420f10006.pdf. 

(CO).9 These compounds are then either 

catalytically or biochemically converted 

into the fuel product. In this case, the 

vast majority of the energy is associated 

with breaking down the feedstock into 

the set of intermediary compounds. The 

process used and the energy needed for 

it does not vary based on the type of fuel 

that is then produced from these 

intermediary compounds. The type of 

fuel could affect the type of catalyst or 

biological process used to change the 

intermediary compounds into the fuel 

product, but based on EPA calculations 

and assessments developed as part of 

the March 26, 2010 RFS rulemaking,10

this will have no real impact on the 

energy used or the GHG emissions 

associated with converting the biomass 

into a different fuel product. 

Based on these considerations, EPA 

believes the GHG emissions associated 

with producing the additional fuel oils 

included in the expanded definition 

will be the same or lower than the GHG 

emissions associated with producing a 

#1, #2, or non-petroleum diesel blend. 

Therefore, the original lifecycle analyses 

for heating oil support applying the 

existing pathways for heating oil in the 

RFS regulations to the expanded 

definition of heating oil. Once the 

regulatory change to the definition of 

heating oil is final, all of the pathways 

currently applicable to heating oil under 

Table 1 to 40 CFR 80.1426 will apply to 

the expanded definition of heating oil. 

C. Additional Registration, Reporting, 

Product Transfer Document, and 

Recordkeeping Requirements 

An important issue to address is how 

to implement such an expanded 

definition. EPA recognized in the March 

26, 2010 rule that it would be difficult 

and expensive to track heating oil to 

make sure it was actually used in 

homes, and so decided to define home 

heating oil as a type of fuel with certain 

characteristics, rather than a fuel used 

in a certain way. This approach avoided 

the need to track heating oil to its actual 

end use, and the definition of heating 

oil at 40 CFR 80.1401 simply referred 

back to the 40 CFR 80.2(ccc) technical 

definition. 

The expansion of the definition raises 

this same issue but in a more significant 

way. The original definition does not 

provide a way to assure that RINs are 

only generated for fuel oils used to heat 

buildings for climate control for human 

comfort, and not for those used to 

generate process heat or other purposes. 

Therefore, for the additional fuel oils 

other than those qualifying as heating 

oil based on the definition in 40 CFR 

80.2(ccc), EPA is requiring that the 

renewable fuel producer or importer 

have adequate documentation to 

demonstrate that the fuel oil volume for 

which RINs were generated was or will 

be used to heat buildings for climate 

control for human comfort as a 

condition for generating RINs. 

EPA recognizes that for fuels meeting 

the original definition of heating oil in 

section 80.1401, no tracking or other 

documentation of end use is required, 

and some heating oils that meet the 

original definition could end up being 

used for other purposes. However, fuel 

qualifying as heating oil under the 

original definition has to have the 

physical or other characteristics that 

make it the type of fuel oil normally 

used to heat homes. The additional fuel 

oils qualifying as heating oil under the 

new category of the expanded definition 

will be identified as heating oil not by 

their chemical specifications but instead 

by their actual use for heating for the 

purposes of climate control for human 

comfort. EPA is not requiring physical 

specifications for the additional fuel oil 

category, beyond the requirement that it 

be a ‘‘fuel oil’’, meaning that it is a 

liquid at 60 degrees Fahrenheit and one 

atmosphere of pressure and contains no 

more than 2.5% mass solids. Solid or 

gaseous fuels, for example wood chips 

or unrefined waste fats or gases, would 

not qualify as heating oil capable of 

generating RINs under the RFS. 

For informational purposes, there are 

industry standard specifications for fuel 

oils that could qualify as heating oils 

under the expanded definition of 

heating oil. For example, ASTM D396 

covers grades of fuel oil intended for use 

in fuel oil burning equipment, ASTM 

D7666 covers two grades of burner fuel 

consisting of triglycerides and naturally 

occurring constituents of triglycerides 

including monoglycerides, diglycerides, 

and free fatty acids and distinguished by 

the pour point, and ASTM D7544 covers 

grades of pyrolysis liquid biofuel 

produced from biomass intended for use 

in fuel oil burner equipment. These and 

other fuel oils would also have to meet 

the requirements related to use of the 

fuel oil for heating, as well as any other 

regulatory requirements applicable 

under the RFS program. 

In order to verify that the fuel oils are 

actually used to generate heat for 

climate control purposes, EPA is 

adopting the following registration, 

recordkeeping, product transfer 

document (PTD) and reporting 

requirements. These requirements will 

not apply to fuels qualifying under the 

original part of the 40 CFR 80.1401 

definition, i.e., they would not apply to 

fuels that meet the definition of heating 

oil in section 80.2(ccc). These 

requirements will only apply to the 

additional fuel oils qualifying under the 

new category of the expanded definition 

in 40 CFR 80.1401. If those fuel oils are 

designated for but not actually used to 

generate heat for climate control 

purposes, the end user of that fuel oil is 

subject to and liable for violations of the 

RFS regulations and the CAA, as are as 

any parties that caused that violation. 

Also, pursuant to the existing regulation 

in § 80.1460(c)(2), the end user in this 

situation would not be allowed to retire 

RINs still associated with the fuel oil for 

RVO compliance purposes or transfer 

such RINs to any other party. Finally, 

since the additional category of fuel oils 

is defined as heating oil in terms of its 

use instead of its physical 

characteristics, EPA must ensure as far 

as is practicable that the RIN-generating 

renewable fuel is actually used for the 

proper purpose by the end user. We 

believe it is reasonable to require that 

the RIN-generating renewable fuel 

producer or importer document that the 

appropriate end use of the fuel is 

certified by an end user. As further 

discussed below, the RIN generator 

must submit proof of such assurances to 

EPA in its registration and quarterly 

reports. 

Once the fuel producer has the 

appropriate affidavit from the end user 

certifying that it has used or intends to 

use the fuel for the proper purpose, the 

fuel producer may validly generate RINs 

for the fuel. We emphasize that 

subsequent improper end use would not 

invalidate any RINs generated by the 

fuel producer for that volume of fuel oil. 

We are not requiring that the RINgenerating producer track the fuel’s 

actual end use; only that the fuel be sold 

for use as a heating oil and that the fuel 

producer receives the appropriate 

affidavit from the end user attesting that 

the fuel has or will actually be used as 

a heating oil prior to RIN generation. A 

RIN will not be considered valid unless 

the renewable producer can 

demonstrate by the end user’s affidavit 

that the fuel has or will actually be used 

as heating oil. Parties that purchase 

RINs generated by renewable fuel 

producers that rely on this new 

definition will be able to evaluate 

whether the proper use requirement is 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Rules and Regulations 62467 

11Regulation of Fuels and Fuel Additives: 

Modifications to Renewable Fuel Standard Program 

Response to Comments, available in the docket at 

http://www.regulations.gov. 

met by examining these affidavits. 

Therefore, while there is a slight chance 

that the fuel associated with a validly 

generated RIN may be improperly used, 

once the appropriate certification is 

made, the RIN may be generated and 

will remain valid regardless of the 

actual end use. 

1. Registration 

For the purpose of registration, EPA is 

allowing the producer of the expanded 

fuel oil types to establish its facility’s 

baseline volume in the same manner as 

all other producers under the RFS 

program, e.g., based on the facility’s 

permitted capacity or actual peak 

capacity. Additionally, we are requiring 

producers of the new category fuel oils 

to submit affidavits in support of their 

registrations, including a statement that 

the RIN generating fuel will be used for 

the purposes of heating interior spaces 

of homes or buildings to control 

ambient climate for human comfort, and 

no other purpose. We also require that 

producers submit secondary affidavits 

from the existing end users to verify that 

the fuel oil is actually being used for or 

is intended for a qualifying purpose. We 

are also adopting new reporting, 

product transfer documents (PTD), and 

recordkeeping requirements, discussed 

below, that will help assure that the 

qualifying fuel oil is being used in an 

approved application. These 

requirements are necessary to provide 

assurance that the fuel oil used to 

generate RINs is actually used for a 

qualifying purpose because these types 

of fuel may not have previously been 

used as heating oil, and may not be 

readily identifiable by their physical 

characteristics. Without such 

safeguards, EPA could not be confident 

that the fuel oil is used as heating oil, 

and end users might not have adequate 

notice that the fuel oil must be used as 

heating oil. EPA believes these 

requirements will place a small but 

necessary burden on producers and end 

users, and greatly benefit the integrity of 

the program. 

2. Reporting, Product Transfer 

Documents and Recordkeeping 

Requirements 

For the purpose of continued 

verification after registration, EPA is 

adopting additional requirements for 

reporting in § 80.1451(b)(1)(ii)(T), PTDs 

in § 80.1453(d), and recordkeeping in 

§ 80.1454(b), for the new category of fuel 

oils qualifying as heating oil. 

The reporting, PTD, and 

recordkeeping requirements will help 

ensure that the new category of fuel oils 

used to generate RINs are actually used 

for the appropriate purpose of heating 

interior spaces for human comfort. For 

reporting, producers are required to file 

quarterly reports with EPA that identify 

certain information about the volume of 

fuel oil produced and used as heating 

oil. The additional reporting 

requirements stipulate that the producer 

of fuel oils submit affidavits to EPA 

reporting the total quantity of the fuel 

oils produced, the total quantity of the 

fuel oils sold to end users, and the total 

quantity of fuel oils sold to end users for 

which RINs were generated. 

Additionally, affidavits from each end 

user must be obtained by the producer 

and reported to EPA, describing the 

total quantity of fuel oils received from 

the producer, the total amount of fuel 

oil used for qualifying purposes, the 

date the fuel oil was received from the 

producer, the blend level of the fuel oil, 

quantity of assigned RINs received with 

the renewable fuel, and quantity of 

assigned RINs that the end user 

separated from the renewable fuel, if 

applicable. 

The additional product transfer 

document requirement associated with 

the new category of heating oil is that 

a PTD must be prepared and maintained 

between the fuel oil producer and the 

final end user for the legal transfer of 

title and custody of a specific volume of 

fuel oil that is designated for use only 

for the purpose of heating interior 

spaces of buildings to control ambient 

climate for human comfort. This 

additional PTD requirement requires 

that the PTD used to transfer ownership 

and custody of the renewable fuel must 

contain the statement: ‘‘This volume of 

renewable fuel oil is designated and 

intended to be used to heat interior 

spaces of homes or buildings to control 

ambient climate for human comfort. Do 

NOT use for process heat or any other 

purpose, as these uses are prohibited 

pursuant to 40 CFR 80.1460(g).’’ EPA 

believes that this PTD requirement will 

help to ensure that each gallon of fuel 

oil that is transferred from the producer 

to the end user is used for qualifying 

purposes under the expanded definition 

of heating oil. If the fuel oil is used for 

some non-qualifying purpose instead of 

for generating heat for climate control 

purposes, then the end user of that fuel 

oil is subject to and liable for violations 

of the RFS regulations and the CAA, as 

are any parties that caused that 

violation. 

The additional recordkeeping 

requirement for the new category of 

heating oil is that producers must keep 

copies of the contracts which describe 

the fuel oil under contract with each 

end user. If the producer is not selling 

the fuel oil directly to the end user, this 

may require the collection of one or 

more intermediate contracts showing 

the chain of custody of the fuel oil from 

the producer to the end user. Consistent 

with existing regulations, producers are 

required to maintain all documents and 

records submitted for registration, 

reporting, and PTDs as part of the 

producer’s recordkeeping requirements. 

EPA believes the producer’s 

maintenance of these records will allow 

for continued tracking and verification 

that the end use of the fuel oil is 

consistent with the meaning of ‘‘heating 

oil’’ intended under EISA. 

IV. Summary and Analysis of 

Comments 

EPA has provided a summary of the 

comments received and its response. 

EPA has developed a more thorough 

Response to Comments document that 

addresses each comment specifically 

and addresses requests for clarification 

to the extent appropriate for this rule.11

Clarification on Existing Definition of 

Heating Oil 

Comment 

Several commenters sought a variety 

of clarifications on changes being made 

to the existing definition of heating oil 

in section 80.1401. 

Response 

As explained in this final rule and the 

October 9, 2012 proposal, this 

amendment does not modify, limit, or in 

any way change the inclusion of fuels 

covered by the existing definition of 

heating oil at section 80.1401. All fuels 

included in the original definition of 

heating oil at section 80.1401 (i.e., those 

fuels that meet the definition of heating 

oil at section 80.2(ccc)) will continue to 

be included as heating oil for purposes 

of section 80.1401 and the RFS program. 

Need for the Expanded Definition of 

Heating Oil 

Comment 

Several commenters expressed 

support for the expanded definition of 

heating oil. These commenters noted 

that the current definition is overly 

restrictive and inconsistent with the 

goals of the RFS program, and stated 

that the expanded definition will spur 

production of cellulosic biofuel from 

woody, biomass-based resources. Also, 

these commenters believe that the 

expanded definition will drive tens of 

millions of dollars of local investment 

and create jobs. 


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62468 Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Rules and Regulations 

Response 

As explained in greater detail above, 

EPA believes this expansion of the 

scope of the definition of heating oil for 

purposes of the RFS program is 

appropriate and authorized under CAA 

section 211(o). 

Fuel Quality Standards 

Comment 

Commenters noted that the expanded 

definition of heating oil will not 

reference fuel quality standards, which 

they believed may present 

environmental and safety concerns. 

Specifically, one commenter (Global 

Renewable Strategies and Consulting 

(GRSAC)) asserted that the definition 

fails to consider the environment or 

safety, and should reference ASTM 

standards for fuel oils. 

Response 

Section 211(o) of the Clean Air Act, as 

amended by EISA, requires all 

renewable fuels used in the RFS 

program to be derived from renewable 

biomass and to meet specified 

thresholds for reductions in lifecycle 

greenhouse gas emissions compared to a 

baseline fossil fuel. Adding fuel quality 

specifications for the fuel oils added to 

the definition of ‘‘heating oil’’ in this 

rule would not affect whether the fuel 

oil was derived from renewable 

biomass, and would not affect the 

analysis of lifecycle greenhouse gas 

emissions associated with the heating 

oils. Thus the additional specifications 

suggested by the commenters are not 

relevant to the issues needed to 

determine whether the fuel oils would 

qualify as renewable fuel for purposes of 

the RFS program. 

The purpose this regulation is to 

further define what types and uses of 

renewable fuel qualify for RIN 

generation, not to set safety standards or 

limitations for renewable heating oil. 

Such standards and limitations may be 

imposed by other regulations and 

regulatory entities, and through private 

sales agreements, by manufacturers of 

heating equipment, and so on. For 

example, we expect that many of these 

fuel oils will meet ASTM specifications 

for fuel oils (e.g., ASTM D396, ASTM 

D7666, and ASTM D7544). The ASTM 

fuel oil specifications not only provide 

fuel quality specifications, they also 

indicate appropriate uses for the fuel 

oils meeting the specification. Because 

the specific use of a particular fuel oil 

is often dependent upon the fuel oil 

conforming to the ASTM specification 

for that fuel oil, industry specification 

and use would provide a de facto 

application of fuel oil specifications for 

fuel oil used as heating oil. This de facto 

control would occur naturally within 

the course of business; an added 

regulatory requirement in the RFS 

regulations would not add value or 

provide any benefit, and as noted above 

is not relevant to the issues needed to 

determine whether the fuel oil is a 

renewable fuel for purposes of the RFS 

program. 

Power Generation 

Comment 

Several commenters recommended 

that the expanded definition of heating 

oil should also include fuel oils used for 

power generation. 

Response 

The restriction on use for the 

additional fuel oils is necessary so that 

the additional fuel oils can reasonably 

be considered ‘‘home heating oil.’’ 

Congress allowed ‘‘home heating oil’’, 

not any and all fuel oils, to be 

considered an additional renewable fuel 

for purposes of the RFS program. EPA’s 

expanded definition of heating oil 

includes fuel oils that are used for 

heating places where people live, work, 

or recreate, and not just their homes. 

EPA believes this is a reasonable 

interpretation of the phrase ‘‘home 

heating oil’’ and recognizes the 

ambiguity of the phrase used by 

Congress, which is not defined and does 

not have a clear and definite 

commercial meaning. It gives reasonable 

meaning to the term home heating oil by 

limiting them to fuel oils used for 

heating of facilities that people will 

occupy, and excludes fuel oils used for 

other purposes such as generation of 

energy used in the manufacture of 

products. It also focuses on the aspect 

of home that is important here—the 

heating of people—recognizing that EPA 

has already determined that fuel oil can 

be included in the scope of home 

heating oil even if it is not actually used 

to heat a home. 

Need for Compliance Provisions 

Associated With the Expanded 

Definition 

Comment 

We received several comments 

regarding the compliance provisions 

associated with the expanded 

definition, including the affidavit 

requirement for RFS registration, 

reporting requirements, PTD 

requirements, and end use tracking 

required for recordkeeping. Commenters 

who are ready to produce renewable 

fuel oils for use as heating oil expressed 

their understanding of the need for 

affidavits and their ability to comply 

with the requirements based on existing 

and prospective customers. 

Other commenters believe that these 

requirements are not necessary and that 

they will not be able to comply with the 

affidavit requirements. For example, 

two biomass-based diesel producers 

asserted that they would be unable to 

submit affidavits because their fuel 

product does not currently qualify as 

heating oil under the RFS. These 

producers also commented that many of 

their potential customers will not sign 

the required affidavits out of fear of 

potential legal ramifications. At the 

same time, parties interested in 

blending No.4 and No.6 diesel to be 

used as heating oil asserted that the 

affidavit requirements will be 

unworkable for their existing 

commercial arrangements, which tend 

to be informal, with small customers 

whose employees are not sophisticated 

enough to comply with the tracking 

requirements. 

Response 

EPA believes that the compliance 

provisions added by this final rule are 

necessary and appropriate to ensure, as 

far as is practicable, that the additional 

fuel oils under the expanded definition 

meet the requirements of heating oil for 

purposes of the RFS program. Fuel oils 

that generate RINs under this expanded 

definition are those that actually heat 

places where people live, work, or 

recreate, and are not used for other 

purposes such as generating process 

energy. These additional fuel oils are 

not readily identifiable based on their 

physical characteristics, so the 

additional registration, recordkeeping 

and reporting requirements are designed 

to ensure they in fact meet the expanded 

definition of heating oil as far as can 

practically be determined at the time of 

RIN generation. These requirements are 

tailored to be the least restrictive 

possible while reasonably ensuring 

compliance with the amended 

definition of heating oil. 

Such requirements are necessary to 

ensure RFS programmatic integrity, 

specifically, that RINs generated for the 

additional fuel oils represent fuel oils 

that qualify under the amended 

definition. Therefore, EPA is requiring 

producers to identify the end users of 

their fuel oil at the time of registration. 

Producers who have not identified any 

end users for their product will not be 

able to produce fuel oil for use as 

heating oil and generate RINs. EPA is 

aware of producers who have customers 

willing to sign such affidavits. EPA 

believes it is reasonable and producers 

typically will be able to comply with 

such requirements. If a producer cannot 


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Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Rules and Regulations 62469 

12We project that the number of affected parties 

will remain essentially constant over time. 

13This includes the time to train staff, formulate 

and transmit responses, and other miscellaneous 

compliance related activities. 

meet the affidavit requirements, that 

producer should not attempt to generate 

RINs using the amended definition of 

heating oil. 

Similarly, the PTD requirements are 

necessary and tailored to be as least 

restrictive as possible while ensuring 

compliance. If a producer cannot meet 

the PTD requirements, that producer 

should not attempt to generate RINs 

using the amended definition of heating 

oil. PTDs must accompany the fuel oil 

from production to end use; sale 

contracts are not interchangeable with 

PTDs but are additionally required for 

recordkeeping. 

RIN Generation 

Comment 

One commenter suggested that the 

heating oil definition should identify 

feedstocks and applicable pathways for 

RIN generation. 

Response 

EPA’s existing pathways that refer to 

heating oil as the final RIN-generating 

renewable fuel, identified in Table 1 to 

40 CFR 80.1426, continue to apply 

without change. This final rule does not 

change those pathways or add a new 

pathway. It merely adds a new category 

of fuel oils that can qualify as heating 

oil. 

Pipeline Concerns 

Comment 

One commenter expressed concern 

that the new definition will create 

additional segregations of heating oil 

which will promote inefficiencies in the 

distribution system. 

Response 

Based on the information we have 

received from renewable fuel oil 

producers, the renewable fuel oil 

qualifying under the expanded 

definition is likely to be a drop-in fuel. 

As such, it would not be distributed 

through the pipeline system and 

therefore EPA does not believe the 

amended definition will create any new 

inefficiencies for the pipeline 

distribution system. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

is therefore not subject to review under 

Executive Orders 12866 and 13563 (76 

FR 3821, January 21, 2011). 

B. Paperwork Reduction Act 

The information collection 

requirements in this final rule have been 

submitted for approval to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et. seq. The information collection 

requirements are not enforceable until 

OMB approves them. 

This action contains recordkeeping 

and reporting requirements (including 

registration and product transfer 

documentation) that may affect parties 

who produce or import renewable fuel 

oils subject to the revised definition of 

heating oil at 40 CFR 80.1401. EPA 

expects that very few parties will be 

subject to additional recordkeeping and 

reporting. We estimate that up to 11 

parties (i.e., RIN generators, consisting 

of up to 10 producers and one importer) 

may be subject to the proposed 

information collection over the next 

several years.12 We estimate an average 

annual reporting and recordkeeping 

burden of 31 hours and $2,205 per 

respondent.13 Burden means the total 

time, effort, or financial resources 

expended by persons to generate, 

maintain, retain, or disclose or provide 

information to or for a Federal agency. 

This includes the time needed to review 

the instructions; develop, acquire, 

install, and utilize technology and 

systems for the purpose of collecting, 

validating, and verifying information, 

processing and maintaining 

information, and disclosing and 

providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transit or otherwise 

disclose the information. Burden is as 

defined at 5 CFR § 1320.3(b). 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations are listed 

in 40 CFR part 9. When this ICR is 

approved by OMB, the Agency will 

publish a technical amendment to 40 

CFR part 9 in the Federal Register to 

display the OMB control number for the 

approved information collection 

requirements contained in this final 

rule. 

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 

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 final rule will not impose any 

significant new requirements on small 

entities. 

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 RFS 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 


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62470 Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Rules and Regulations 

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 RFS regulations. 

Thus, Executive Order 13132 does not 

apply to this action. 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This 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 action is not subject to Executive 

Order 13211 (66 FR 28355 (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 will 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 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 amendments will 

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). 

VI. Statutory Provisions and Legal 

Authority 

Statutory authority for the rule 

finalized today can be found in section 

211(o) of the Clean Air Act, 42 U.S.C. 

7545. Additional support for the 

procedural and compliance related 

aspects of today’s rule, including the 

recordkeeping requirements, come from 

sections 114, 208, and 301(a) of the 

Clean Air Act, 42 U.S.C. 7414, 7542, and 

7601(a). 

List of Subjects in 40 CFR Part 80 

Environmental protection, 

Administrative practice and procedure, 

Agriculture, Air pollution control, 

Confidential business information, 

Diesel, Energy, Forest and Forest 

Products, Fuel additives, Gasoline, 

Imports, Labeling, Motor vehicle 

pollution, Penalties, Petroleum, 

Reporting and Recordkeeping 

requirements. 

Dated: September 24, 2013. 

Gina McCarthy, 

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). 

Subpart M—[Amended] 

■ 2. Section 80.1401 is amended by 

revising the definition of ‘‘Heating oil’’ 

to read as follows: 

§ 80.1401 Definitions. 

* * * * * 

Heating oil means: 

(1) A fuel meeting the definition of 

heating oil set forth in § 80.2(ccc); or 

(2) A fuel oil that is used to heat 

interior spaces of homes or buildings to 

control ambient climate for human 

comfort. The fuel oil must be liquid at 

60 degrees Fahrenheit and 1 atmosphere 

of pressure, and contain no more than 

2.5% mass solids. 

* * * * * 

■ 3. Section 80.1426 is amended by 

adding a new paragraph (c)(7) to read as 

follows: 

§ 80.1426 How are RINs generated and 

assigned to batches of renewable fuel by 

renewable fuel producers or importers? 

* * * * * 

(c) * * * 

(7) For renewable fuel oil that is 

heating oil as defined in paragraph (2) 

of the definition of heating oil in 

§ 80.1401, renewable fuel producers and 

importers shall not generate RINs unless 

they have received affidavits from the 

final end user or users of the fuel oil as 

specified in § 80.1451(b)(1)(ii)(T)(3). 

* * * * * 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Rules and Regulations 62471 

■ 4. Section 80.1450 is amended by 

adding a new paragraph (b)(1)(xi) to 

read as follows: 

§ 80.1450 What are the registration 

requirements under the RFS program? 

* * * * * 

(b) * * * 

(1) * * * 

(xi) For a producer of fuel oil meeting 

paragraph (2) of the definition of heating 

oil in § 80.1401: 

(A) An affidavit from the producer of 

the fuel oil stating that the fuel oil for 

which RINs have been generated will be 

sold for the purposes of heating interior 

spaces of homes or buildings to control 

ambient climate for human comfort, and 

no other purpose. 

(B) Affidavits from the final end user 

or users of the fuel oil stating that the 

fuel oil is being used or will be used for 

purposes of heating interior spaces of 

homes or buildings to control ambient 

climate for human comfort, and no other 

purpose, and acknowledging that any 

other use of the fuel oil would violate 

EPA regulations and subject the user to 

civil penalties under the Clean Air Act. 

* * * * * 

■ 5. Section 80.1451 is amended as 

follows: 

■ a. By redesignating paragraph 

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

■ b. By adding a new paragraph 

(b)(1)(ii)(T). 

§ 80.1451 What are the reporting 

requirements under the RFS program? 

* * * * * 

(b) * * * 

(1) * * * 

(ii) * * * 

(T) Producers of fuel oil that meets 

paragraph (2) of the definition of heating 

oil in § 80.1401, shall report, on a 

quarterly basis, all the following for 

each volume of fuel oil: 

(1) Total volume of fuel oil produced 

and sold, in units of U.S. gallon, and the 

lower heating value of the fuel oil, in 

units of BTU per U.S. gallon. 

(2) Total volume of fuel oil for which 

RINs were generated, in units of U.S. 

gallon, and the respective quantities of 

fuel oil sold, organization names and 

locations of the buildings in which the 

fuel oil was used, and the RIN numbers 

assigned to each batch of fuel oil. 

(3) For each batch of fuel oil for which 

RINs are generated that the renewable 

fuel producer claims meets paragraph 

(2) of the definition of heating oil in 

§ 80.1401 and that is sold for the 

purposes specified in paragraph (2), 

affidavits from end user or users of the 

fuel oil that include the following 

information: 

(i) Quantity of fuel oil received from 

producer. 

(ii) Quantity of fuel oil used or to be 

used for heating interior spaces of 

homes or buildings to control ambient 

climate for human comfort, and for no 

other purpose. 

(iii) Date the fuel oil was received. 

(iv) Blend level of the fuel oil in 

petroleum based fuel oil when received 

(if applicable). 

(v) Quantity of assigned RINs received 

with the fuel oil, if applicable. 

(vi) Quantity of assigned RINs that the 

end user separated from the fuel oil, if 

applicable. 

* * * * * 

■ 6. Section 80.1453 is amended by 

adding a new paragraph (d) to read as 

follows: 

§ 80.1453 What are the product transfer 

document (PTD) requirements for the RFS 

program? 

* * * * * 

(d) For fuel oil meeting paragraph (2) 

of the definition of heating oil in 

§ 80.1401, the PTD of the fuel oil shall 

state: ‘‘This volume of renewable fuel 

oil is designated and intended to be 

used to heat interior spaces of homes or 

buildings to control ambient climate for 

human comfort. Do NOT use for process 

heat or any other purpose, as these uses 

are prohibited pursuant to 40 CFR 

80.1460(g).’’. 

■ 7. Section 80.1454 is amended by 

adding a new paragraph (b)(8) to read as 

follows: 

§ 80.1454 What are the recordkeeping 

requirements under the RFS program? 

* * * * * 

(b) * * * 

(8) A producer of fuel oil meeting 

paragraph (2) of the definition of heating 

oil in § 80.1401 shall keep copies of all 

contracts which describe the fuel oil 

under contract with each end user. 

* * * * * 

■ 8. Section 80.1460 is amended by 

adding a new paragraph (g) to read as 

follows: 

§ 80.1460 What acts are prohibited under 

the RFS program? 

* * * * * 

(g) Failing to use a renewable fuel oil 

for its intended use. No person shall use 

fuel oil that meets paragraph (2) of the 

definition of heating oil in § 80.1401 

and for which RINs have been generated 

in an application other than to heat 

interior spaces of homes or buildings to 

control ambient climate for human 

comfort. 

[FR Doc. 2013–24280 Filed 10–21–13; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 130408348–3835–02] 

RIN 0648–BD17 

Fisheries of the Northeastern United 

States; Atlantic Herring Fishery; 

Framework Adjustment 2 and 

Specifications 

Correction 

In rule document 2013–24271 

appearing on pages 61828 through 

61838 in the issue of Friday, October 4, 

2013, make the following correction: 

1. On page 61828, in the second 

column, in the DATES section, ‘‘Effective 

September 30, 2014’’ should read 

‘‘Effective September 30, 2013’’. 

[FR Doc. C1–2013–24271 Filed 10–21–13; 8:45 am] 

BILLING CODE 1505–01–D 


emcdonald on DSK67QTVN1PROD with RULES