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Page **1** of **144** EO12866_RFS Pathways II 2060 - AR21 FRM FRN_20140523 .docx **ENVIRONMENTAL PROTECTION AGENCY**

**40 CFR Part 80 [EPA**  **- HQ**  **- OAR** **- 2012**  **- 0401; FRL**  **– -**  **]**

**RIN 2060**  **- AR21**  **Regulation of Fuels and Fuel Additives: RFS Pathways II , and**  **Technical Amendments to**

**the RFS Standards and E15 Misfueling Mitigation Requirements**  **AGENCY** : Environmental Protection Agency (EPA). **ACTION** : Final rule . **SUMMARY:** In this final r ulemaking, EPA is amending three separate sets of regulations relating to fuels. In amendments to the renewable fuels standard (RFS) program regulations , EPA is clarifying the number of cellulosic biofuel renewable identification numbers that may be generated for fuel made with feedstocks of varying cellulosic content, is specif yi ng new and amended pathway s for the production of renewable fuels made from biogas, and is clarif yi ng or amending a number of RFS program regulations that define terms or address registration, recordkeeping, and reporting requirements . EPA is also making various changes to the misfueling mi tigation regulations for gasoline that contains greater than 10 volume percent ethanol and no more than 15 volume percent ethanol (E15) and to the survey requirements associated with the ultra - low sulfur diesel program. **DATES:** This rule is effective [ IN SERT DATE 30 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER ].*** E.O. 12866 Review

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Page **2** of **144 FOR FURTHER INFORMATION CONTACT:**  Jon Monger , Office of Transportation and Air Quality , Mail Code: 1101A , U.S. Environmental Protection Agency , 1200 Pennsylvania Avenue, NW, 20460; telephone number: (202) 564 - 0628 ; fax number: (202) 564 - 1686 ; email address: monger.jon @epa.gov. **SUPPLEMENTARY INFORMATION** : This preamble follows the following outline: I. Why

is EPA Taking This Action? II. Does this Action Apply to Me? I II . Executive Summary IV . Renewable Fuel Standard (RFS) Program Amendments A. R enewable Identification Numbers ( RI N ) Generation for Fuels Made from Feedstocks Containing Cellulosic Biomass 1. Background 2. The Cellulosic Content Threshold Approach and its Application to Ce llulosic Feedstocks Currentl y Li sted in Table 1 to 40 CFR 80.1426 3. Compliance Requirements for Producers of Cellulosic Biofuel made from Feedstocks that are not Predominantly Cellulosic 4. Testing, Registration, Reporting and Recordkeeping Requirement s for Cellulosic Biofuel a. Additional Registration Requirements for Producers Seeking to Generate Cellulosic Biofuel RINs b. Additional Registration Requirements for Renewable Fuel Produced from Energy

Cane c. Additional Registrati on, Recordkeeping, and Reporting Requirements for Producers of Cellulosic Fuels Derived from the Simultaneous Conversion of Feedstocks that are Predominantl y Cellulosic and Feedstocks that are Not Predominantly Cellulosic 5 . Determining the Average Ad justed Cellulosic Content of Feedstocks Going Forward 6 . Other Comments Received a. Treatment of Cellulosic Feedstocks Currentl y Listed in Table 1 to 40 CFR 80.1426 b. Feedstocks with L ower Average Cellulosic Content than Feedstocks Currently L isted in Table 1 to § 80.1426 B. Lifecycle Greenhouse Gas Emissions Analysis and Cellulosic Determinations for Pathway s Using Biogas as a Feedstock 1 . Changes Applicable to the Revised CNG/LNG pathway from Biogas 2. Determination of the Cellulosic Content of Biogenic Waste - Derived Biogas a. Landfill Biogas and MSW Digester Gas as Cellulosic in Origin*** E.O. 12866 Review

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Page **3** of **144** b. Municipal Wastewater Treatment Facility Digester Biog as as Cellulosic c. Agricultural D ig ester G as as C ellulosic d. Biogas from Waste Di gesters 3. Consideration of L ifecycle GHG Emissions Associated with Biogas Pathway s a. Upstream GHG Anal ys is of Biogas as a Renewable Fuel Feedstock b. Flaring Baseline Justification c. L ifecycle GHG Analy sis for Electricity from Biogas 4. Alter

native Biogas Options and Comments a. Alternative Baseline Approaches b. Additional Comments on L ifecycle Anal ys is for Renewable Electricity C. Regulatory

Amendments R elated to Biogas 1 . Changes Applicable to Renewable Electricity from Biogas So urces a. Registration and RIN Generation Requirements b. Distribution and Tracking Requirements 2. Regulatory Changes Applicable to A ll Biogas Related Pathway s D. Clarification of the Definition of “Crop Residue” and Clarification of Feedstocks that EPA Considers Crop Residues 1. Clarification of the Definition of “Crop Residue” 2. Consideration of Corn Kernel Fiber as a Crop Residue a. Anal ys is of Corn Kernel Fiber as a Crop Residue b. Treatment of Corn Starch that Adheres to Corn Kerne l Fiber After Separation from DDG c. Processing Corn Kernel Fiber 3 . Id entification of Feedstocks EPA Considers Crop Residues 4. Registration, Recordkeeping, and Reporting Requirements Associated with Using Crop Residue as a Feedstock a. Re gistration Requirements for Producers Utilizing Crop Residue as a Feedstock b. Recordkeeping and Reporting Requirements for Producers Utilizing Crop Residue as a Feedstock E . Amendments to Various RFS Compliance Related Provisions 1. Changes to Definitions 2. Provisions for Small Blenders of Renewable Fuels 3. Changes to Section 80.1450

– Registration Requirements 4. Changes to Section 80.1452

– EPA Moderated Transaction Sy stem (EMTS) Requirements

– Alternative Reporting Method for Sell and Buy Transactions for Assigned RINs 5 . Changes to Facility ’s Baseline Volume to A llow “Nameplate Capacity” for Facilities not Claiming Exemption from the 20% GHG Reduction Threshold 6 . Changes to Section 80.1463

– What penalties apply under the RFS program? F . Minor Corrections to RFS Provisions V. Amendments to the E15 Misfueling Mitigation Rule*** E.O. 12866 Review

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Page **4** of **144** A. Changes to Section 80.1501

– Label B. Changes to Section 80.1502

– E15 Survey C. Changes to Section 80.1503

– Product Transfer Documents D. Changes to Se ction 80.1504

– Prohibited Acts E. Changes to Section 80.1500

– Definitions VI . Amendments to the UL SD Diesel Survey VII. Statutory

and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Impro ving Regulation and Regulatory Review B. Paperwork Reduction Act C. Regulatory

Flexibility

Act D. Unfunded Mandates Reform Act E. Executive Order 13132 (Federalism) F. Executive Order 13175 (Consultation and Coordination with Indian Tribal Gov ernments) G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy

Suppl y, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and L ow - Income Populations. K. Congressional Review Act L. Clean Air Act Section 307(d) IX . Statutory

Provisions and Leg al Authority*** E.O. 12866 Review

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Page **5** of **144 I. Why is EPA Taking This Action?**  EPA is taking this action to amend various provisions in its regulations pertaining to the R enewable F uels S tandard (RFS) program ( 40 CFR p art 80, s ubpart M ) and misfueling mitigation for 15 volume perc ent (%) ethanol blends (E15) (40 CFR part 80, subpart N) to assist regulated parties in complying with RFS and E15 requirements. EPA is also amending the ultra low sulfur diesel (ULSD) survey provisions (40 CFR part 80, subpart I) to decrease regulatory burdens and costs. **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 b y this action include:*** E.O. 12866 Review

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Page **6** of **144 Category**  **NAICS Codes a**  **SIC Codes b**  **Examples of Potentially Regulated Parties**  Industry Industry Industry Industry Industry Industry Industry Industry Industry Industry Industry Industry 324110

325193 325199 424690 424710 424720 45431 0 486210 221117 562212 562219 221320 2911

2869 2869 5169 5171 5172 5989 4922 4911 4953 4953 4952 Petroleum refiners, importers.

Ethylalcohol manufacturers. Other basic organic chemical manufacturers. Chemical and allied products merchant wholesalers. Petroleum bulk stations and terminals. Petroleum and petroleum products merchant wholesalers. F uel dealers. Pipeline Transportation of Natural Gas . Biomass Electric Power Generation . Solid Waste Landfill . Other Nonhazardous Waste Treatment and Disposal . Sewage Treatment Facilities . a North American Industry Classification S ys tem (NAI CS). b Standard Industrial Classification (SI C) s y stem code. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely

to be regulated b y this action. This table lists the types of entities that EPA is now aware could be potentially regulated by

this action. Other ty

pes of entities not listed in the table could also be regulated. To determine whether your entity is regulated b y this action, yo u should carefully

examine the applicability criteria of p art 80, subparts I, M and N of Title 40 of the Cod e 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 IN FORMAT ION CONTACT” section above. **III .**  **Executive Summary***** E.O. 12866 Review

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Page **7** of **144** In this rule, EPA is amending three sets of regulations. First, as described in section IV of this preamble, EPA is amending certain parts of the RFS program regulations at 40 CFR p art 80, s ubpart M. Some of the changes in this rule are of a substantive nature; others are more in the nature of technical corrections, including corrections of obvious omissions and errors in citation. Inthis final rule , EPA establishes requirements for determin ing the number of cellulosic biofuel Renewable Identification Numbers ( RI Ns ) that will be gen erated for fuel made from a range of cellulosic feedstocks. We also modif y regulatory provisions related to renewable fuel made from biogas, including a new compressed natural gas (CNG)/liquefied natural gas (LNG) cellulosic biofuel pathway , and add a new cellulosic biofuel pathway for renewable electricity (used in electric vehicles) produced from biogas. These pathway s have the potential to provide notable volumes of cellulosic biofuel for use in complyingwith the RFS program , since significant volumes of advanced biofuels are already being generated for fuel made from biogas, and in many cases this same fuel will qualify for cellulosic RI

Ns when this rule becomes effective. The approval of these new cellulosic pathway s could have an impact on EPA’s projection of 2014 cellulosic biofuel volumes in the final 2014 RFS standards rulemaking. EPA noted the possibility of such an impact in its proposed rule . 1 Many of the changes in today ’s rule will facilitate the introduction of new renewable fuels under the RFS program. By qualifying these new fuel pathway s, this rule provides opportunities to increase the volume of advanced, low - GHG renewable fuels

— such as cellulosic biofuels

— under the RFS program. EPA’s anal ys es show significant lifecycle GHG emission r eductions from these fuel types, as compared to the baseline gasoline or diesel fuel that they replace . In this rulemaking, EPA also clarifies or amends a number of RFS program regulations that define terms or address registration, recordkeeping, or reporting requirements . These include amendments related to: 1) 1 78 FR 71732, November 29, 2013*** E.O. 12866 Review

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Page **8** of **144** use of crop residue and corn kernel fiber as renewable fuel feedstock; 2 ) definition of “small refinery”; 3) provisions for small blenders of renewable fuels; 4) when EPA may deactivate a compan y registration ; 5) the use for registration purposes of “nameplate capacity” for certain production facilities that do not claim exemption from the 20% greenhouse gas (GHG) reduction threshold ; and 6) clarifying what penalties appl y under the RFS program . EPA is also making various changes to the E15 misfueling mitigation regulations (E15 MMR) at 40 CFR p art 80, s ubpart N. Among the E15 changes are technical corrections and amendments to sections dealing with labeling, E15 survey s, product transfer documents, and prohibited acts. We also amend the definitions of E10 and E15 in subpart N to address a concern about the rounding of ethanol content test results, in response to a question raised by some industry stakeholders. In response to questions re ceived from regulated parties, we amend the ultra - low sulfur diesel (ULSD) survey

provisions in a manner that reduce s the number of samples required. This will reduc e costs and burdens associated with compliance for regulated parties, with no expected degradation in the highl y successful environmental performance of the program. We received helpful comments from the public on these three issues, and provide response to them in this preamble. We are not finalizing at this time all of the proposed changes in the Notice of Proposed Rulemaking. 2 Due to comments received and time constraints, we are not taking final action at this time on the proposed advanced butanol pathway , the proposed pathways for the production 2 78 FR 36042, June 14, 2013.*** E.O. 12866 Review

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Page **9** of **144** of renewable diesel, naphtha and renewabl e gasoline from biogas, or the proposed additional compliance requirements for non - RI N - generating foreign renewable fuel producers. We are also not taking final action at this time on the definition of “producer” for renewable CNG/LNG and renewable elec tricity from biogas sources , the definition of responsible corporate officer, or the proposed amendments to complianc e related provisions for the alternative reporting method in Section 80.1452 . The Agency is deferring the final decision on the se matters until a later time. **I V.**  **Renewable Fuel Standard (RFS) Program Amendments** In this rule , we are clarifyingrequirements related to existing cellulosic biofuel pathway s under the RFS program , and adopting new cellulosic biofuel pathway s . This r ule also modifies a number of RFS program regulations . **A. RIN Generation for Fuels Made from Feedstocks Containing Cellulosic Biomass**  1. Background The Clean Air Act (CAA) defines “cellulosic biofuel” as “renewable fuel derived from any cellulose , hemicellulose, or lignin that is derived from renewable biomass and has lifecycle greenhouse gas emissions, as determined b y the Administrator, that are at least 60 percent less than the baseline lifecycle greenhouse gas emissions.” However, plant s do n ot contain only cellulose, hemicellulose, and lignin ; depending on the plant species and other variables (such as variety within a generic feedstock type and storage time ) they can also contain varying amounts of other compounds . Using cellulosic biofuel production technologies, s ome of these other*** E.O. 12866 Review

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Page **10** of **144** compounds may

be converted, along with the cellulosic compounds of plant feedstocks, into renewable fuel. When this occurs, biofuel producers must ascertain what ty pe of RIN or RINs to assign to the resulting r enewable fuel. Prior to the proposal, EPA had not provided detailed information on how other compounds should be treated, which led to uncertainty amongs t renewable fuel producers about whether their entire volume of fu e l produced from a cellulosic feedst ock would be eligible to generate cellulosic RI Ns. In the proposed rule, EPA noted that existing RFS regulations specify that the fuel made from certain ty

pes of feedstocks that are predominantly of cellulosic content 3 (e.g., fuel made from the biogenic portion of separated municipal solid waste) are considered entirel y made from cellulosic material. 4 EPA noted that these regulations have been based on the view that the statutory requirement that cellulosic biofuel be “derived from cellulose, hemicellul ose or lignin” does not mandate that in all cases the renewable fuel must be produced only from the cellulosic material in the renewable biomass. Rather, EPA considers the statutory definition of cellulosic biofuel to be ambiguous on this point, providing EPA the discretion to reasonably determine under what circumstances a fuel appropriatel y should be considered cellulosic biofuel when the fuel is produced from a feedstock that contains a mixture of cellulosic and non - cellulosic materials. 5 Consistent wi th this view and the previously established statutory interpretation permitting assignment of a single RIN value to fuel produced predominantly from one source , EPA proposed that fuels made from feedstocks that are “predominantl y” cellulosic should be cons idered cellulosic biofuel and that all of the volume of fuels from such feedstocks could

3 For purposes of this preamble, “cellulosic content” means cellulose, hemicellulose, and lignin. 4 75 FR 14670, 14706. In the March 2010 RFS rulemaking, EPA determined, in certa in circumstances, it is appropriate for producers to base RIN assignment on the predominant component. 5 78 FR 36042, 36047.*** E.O. 12866 Review

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Page **11** of **144** generate cellulosic biofuel RI Ns. Accordingl y, EPA proposed that the entire volume of fuel made pursuant to the cellulosic biofuel pathway s in Table 1 to § 80.1426 be for cellulosic biofuel RI Ns (D code of 3 or 7), based on EPA’s proposed determination that the feedstocks associated with those pathway s are composed predominantl y of cellulosic materials. 6 EPA solicited comment in the Notice of Proposed Rulemaking (NPRM ) on several alternative approaches, including a “cellulosic content threshold approach.” Under the cellulosic content threshold approach, EPA would set a minimum threshold of cellulosic content, and onl y fuels made from feedstocks meeting this minimum threshold would be eligible to generate cellulosic RI

Ns for their entire fuel volume. EPA suggested possible thresholds in the range of 70% to 99.9%. After evaluating the comments received, EPA has decided to finalize a cellulosic content approach, with a minimum cellulosic content threshold of 75%. In section IV.A.2, below, we discuss the merits of the approach generall y, and how we intend to implement it for feedstocks used in cellulosic biofuel pathway s listed in Table 1 to § 80.1426. This includes special provisions for energy

cane and annual cover crops. In section s IV.A.3 and IV.A.4 we discuss how RI Ns should be allocated for fuel made from feedstocks containing less than 75% cellulosic content, and the registration, recordkeeping and reporting r equirements associated with the rule. In section IV.A. 5 we discuss application of the cellulosic content threshold approach to

6 EPA included in the docket for the Notice of Proposed Rulemaking a Memorandum to the Docket, entitled “Cellulosic Content of Vari ous Feedstocks

– 2014 Update ,” Docket EPA - HQ - OAR - 2014 - XXXX . This memorandum discusses the cellulosic content of various feedstocks, including most of the cellulosic feedstocks listed in cellulosic biofuel pathways in Table 1 to 40 CFR 8 0.1426. The memorandum notes that the average adjusted cellulosic content of these feedstocks is above 75%. Because of the high degree of natural variability in biomass, average adjusted cellulosic contents are likely more meaningful than any single value reported, because no single value can reflect the compositional range and variability present .*** E.O. 12866 Review

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Page **12** of **144** feedstocks evaluated in the future, and in IV.A. 6 we discuss in more detail the comments received and our responses to them. 2. The Cellulosic Content Threshold Approach and its Application to Cellulosic Feedstocks Currently Listed in Table 1 to 40 CFR 80.1426 EPA has decided to finalize the cellulosic content threshold approach and to set the minimum threshold as an average adjusted cellulosic content of 75%, measured on a dry mass basis. Since inorganic materials are not likel y to end up in the final fuel product and would not contribute to the fuel heating content in the event that they remained in the final fuel, the “adju sted cellulosic content” is the percent of organic (non - ash) material that is cellulose, hemicellulose, or lignin . 7 Consistent with previous precedents permitting assignment of a single RI N value to fuel produced predominantl y from one source, f uel s made from feedstocks that EPA determines meet this minimum threshold will, therefore, be eligible for cellulosic biofuel RI Ns for the entire fuel volume produced . As a result of this rule, all of the cellulosic biofuel made from the following feedstocks is e ligible to generate cellulosic RINs for the entire volume of fuel produced: crop residue, slash, pre - commercial thinnings and tree residue, switchgrass, miscanthus, Arundo donax, Pennisetum purpureum, and biogas from landfills, municipal wastewater treatm ent facility digesters , agricultural digesters, and separated MSW digesters (collectivel y “predominantly cellulosic feedstocks” ). Fuels made from feedstocks which do not meet this minimum threshold will be able to generate both cellulosic and non - cellulo sic RINs using the apportionment methods described below.

7 Further details about this determination can be found in the Memorandum to the Docket, “Cellulosic Content of Various Feedstocks

– 2014 Update ,” EPA - HQ - OAR - 2014 - XXXX . .*** E.O. 12866 Review

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Page **13** of **144** However, EPA is not making the same categorical determination for biofuel made from energy cane or cover crops. Because considerable variability in cellulosic content may exist in plants that may be considered sugarcane or energy cane, we have amended the definition of energy cane to specify

that it refers onl y to cultivars that have been demonstrated to contain an average adjusted cellulosic content of at least 75%. Fuel made through cellulosi c biofuel pathway s from feedstocks meeting the definition of energy cane are eligible for cellulosic biofuel RI Ns. Annual cover crops will also be treated differently than other cellulosic feedstocks in Table 1. We do not have enough data about annual cover crops to be confident that they will alway s meet the 75% threshold. Therefore, in Table 1 annual cover crops will still be listed as "cellulosic components of annual cover crops." However, we are also adding a new pathway for "non - cellulosic compo nents of annual cover crops," which will be eligible for advanced RINs. In the future, as more information becomes available, we may revisit this determination. EPA believes that a 75% content threshold is consistent with the statutory definition of ce llulosic biofuel, as EPA indicated in the NPRM, and satisfies the objective identified in the proposed rule of allowing fuels made from feedstocks that are “predominantly” cellulosic to generate cellulosic biofuel RI Ns for their entire fuel volume. A thre shold of 75% also allows fuel made from all predominantly cellulosic feedstocks to generate RINs for their entire fuel volume, consistent with EPA’s principal proposal. As compared to alternative approaches discussed in the NPRM, the approach will also greatly simplify compliance by

cellulosic biofuel producers and reduce regulatory burden, since for qualifying cellulosic feedstocks the approach*** E.O. 12866 Review

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Page **14** of **144** to RI N generation is straightforward and will not require testing or apportionment of RINs. These benefits, in turn, should help to promote cellulosic biofuel production, consistent with Congressional objectives. This final rule will help to ensure that cellulosic RI Ns are in fact onl y generated for fuels derived predominantl y from cellulosic materials. Because all of the fuel produced from predominantly cellulosic feedstocks will qualify for cellulosic biofuel RINs, EPA is making related modifications to the text in Table 1 to § 80.1426. Specificall y we are deleting the references to “cellulosic biomass from” in rows K, L, M, and N to reflect that fuel made pursuant to the listed pathway s from the feedstocks listed without this modifier are eligible to generate cellulosic biofuel RINs even though the feedstocks contain some non - cellulosic compounds. However, b ecause certain production processes that can be used to produce cellulosic biofuel may be employed so as to only derive fuel from the non - cellulosic components of feedstock, EPA is also modifying the production process description in these lines in the tab le to specify that the production process must convert the cellulosic components of feedstock into biofuel. The effect is that cellulosic RI Ns may only be generated when a production process is employed that in fact produces biofuel that is derived from the cellulosic content of feedstocks. Many commenters agreed that the cellulosic feedstocks currentl y listed in Table 1 are predominantly

composed of cellulosic components and that allowing all of the fuel derived from these feedstocks to qualify for ce llulosic biofuel RINs is consistent with the statutory definition of cellulosic biofuels. Some commenters asserted that allowing all the fuel produced from the cellulosic feedstocks in Table 1 was an overl y expansive interpretation of the statutory defini tion*** E.O. 12866 Review

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Page **15** of **144** of cellulosic biofuels. 8 EPA considers the statutory definition to be ambiguous on the point of whether cellulosic biofuel RI Ns may be generated for fuel produced from predominantly cellulosic material , allowing EPA discretion to reasonably interpret this definition. As established in previous rulemakings, 9 EPA believes the statutory definition does not mandate that in all cases cellulosic biofuel must be produced exclusively from cellulosic material in the renewable biomass , and today ’s rule adopts a common - sense approach to the matter that allows fuel made from predominantly cellulosic feedstocks to qualify as cellulosic biofuel . In the NPRM, EPA invited comment on an appropriate threshold value for use with a cellulosic threshold approach . EPA received comments on a wide range of suggested threshold values, with many

commenters supporting 70% and 80%, some suggesting multiple thresholds, and some commenters requesting much higher (95%) thresholds. Some commenters opposed setting a cellulosic co ntent threshold because there is not a consensus on a value for a threshold, and one comment er asserted that setting a minimum threshold content may stifle development of new feedstocks. In response, EPA has decided that a cellulosic content threshold of 75% is a reasonable value that appropriatel y implements the statutory requirements. 10 Feedstocks which do not meet or exceed a 75% minimum cellulosic content threshold have a more significant non cellulosic portion of the feedstock which could contribute t o the volume of fuel produced. These feedstocks start to resemble traditional crops that have been developed for purposes other than

8 Comments provided by AFPM/API (EPA - HQ - OAR - 2012 - 0401 - 0128) and Chevron (EPA - HQ - OAR - 2012 - 0401 - 0171). 9 EPA has previously considered instances where fuel would generate cellulosic biofuel RINs even if produced from feedstocks containing both cellulosic and non - cellulosic materials. In the March 2010 RFS rulemaking, EPA determined that biofuel from separated yard waste qualified as cellulosic and wo uld generate cellulosic RINs because separated yard waste was “largely cellulosic.” 75 FR 14794 , March 26, 2010 . 10 All fuel that qualifies for cellulosic biofuel RINs must achieve a minimum 60% lifecycle greenhouse gas emissions reduction as compared to baseline fuels, even if some portion of the fuel is derived from non - cellulosic materials.*** E.O. 12866 Review

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Page **16** of **144** energy generation, such as crops that are grown for their sugar content (e.g., sugarcane, sweet sorghum). EPA believes th at a threshold significantly below 75% might inadvertentl y encourage use of multipurpose feedstocks for the production of fuels that are qualified for cellulosic RINs, in lieu of the feedstocks with a higher cellulosic content that Congress envisioned woul d be used to produce this category

of biofuel. On the other hand, a threshold higher than 75% would result in regulatory

and administrative burdens on the use of predominantl y cellulosic feedstocks. 11 EPA believes that the 75% threshold strikes a reas onable balance among these considerations, while remaining consistent with the statutory definition of cellulosic biofuels and past regulatory approaches that EPA has taken for specified feedstocks. While arguments could be made for other numeric values, EPA believes that a rational basis exists for settling on 75%, as explained in this rule, and is within EPA’s exercise of discretion to reasonabl y interpret the CAA. EPA believes that 75% is consistent with the concept that cellulosic content should be p redominant in feedstocks for which all resulting fuel is qualified for cellulosic biofuel RINs . T he 75% threshold also eliminates the current regulatory uncertainty for cellulosic biofuel producers , minimizes regulatory

burden, and as a consequence should help promote the production of the category of renewable fuels that provides the most lifecycle GHG emissions benefits. 3 . Compliance Requirements for Producers of Cellulosic Bio fuel made from Feedstocks that are not Predominantly Cellulosic In the proposal, EPA invited comment on how to determine the appropriate ty pe of RI N or RI Ns for fuel that is produced from feedstocks that contain cellulosic material, but where the 11 Requirements for determining the number of cellulosic biofuel RINs that may be generated for fuel derived from feedstocks that do not satisfy the minimum cellulos ic content threshold adopted in today’s rule are described in Section IV.A.3 of this preamble.*** E.O. 12866 Review

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Page **17** of **144** feedstocks are not predominantly cellulosic in content. Based on the comments rec eived, EPA believes that the existing regulations at § 80.1426(f)(3)(vi) provide an appropriate mechanism for allocation of RINs, both for processes that convert two or more feedstocks simultaneously where not all feedstocks are predominantly cellulosic, and for processes using a single feedstock that has an average cellulosic content below 75%. However, EPA is amending the regulations, by adding new registration, recordkeeping, and reporting requirements (“RRR requirements”) to allow EPA to veri fy

that the formula in § 80.1426(f)(3)(vi) is being applied appropriatel y. EPA believes that, to relieve regulatory burden and streamline program implementation , it makes sense to establish a 75% minimum cellulosic content threshold above which testing an d reporting of cellulosic content and RI N apportionment is not necessary . However, when fuel is made from feedstocks below the 75% cellulosic content threshold, EPA believes that testing of the feedstock ’s cellulosic content is appropriate, and that RI Ns should be apportioned according to the test results . EPA recognizes that one result of today ’s rule is that fuel made from a feedstock meeting the 75% minimum cellulosic content threshold will qualify completel y for cellulosic RI Ns, whereas fuel made from a feedstock containing 74% cellulosic content would, through the apportionment formula, only qualify for at most 74% cellulosic RINs. EPA believes it is appropriate to have simplified procedures for fuel made from feedstocks that are predominantl y cellulosic, and has selected a 75% threshold to identify these feedstocks. At some level of content, EPA believes there is less benefit to requiring that manufacturers account for the increasingl y small non - cellulosic content of the feedstock. EPA has determ ined that 75% cellulosic content is a large enough percentage that it is appropriate to allow full qualification.*** E.O. 12866 Review

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Page **18** of **144** This results in a simplified implementation approach for the large majority of feedstocks ty picall y considered “cellulosic” in nature. While this obviously allows significantly

greater benefits to fuel with feedstock above 75%, compared with fuel from feedstock just below 75%, the difference in process and result is the inevitable result of having any sort of threshold level. Wherever EPA set the threshold, fuels made from feedstocks that just fail to satisfy the threshold will, inevitably , be treated differentl y. For the reasons provided, EPA believes that the approach is reasonable and appropriate . As one possible approach to addressing the disparity between fuels made from feedstocks that meet the 75% minimum cellulosic content threshold and those that do not, EPA considered the option of allowing up to an additional 25% of fuel made from non - qualifying feedstock to qualify for cellulosi c biofuel RI

Ns, beyond levels that are determined to reflect the cellulosic converted fraction . While this approach could be seen as providing more equitable treatment of fuels made from feedstocks that satisfy the 75% cellulosic content threshold and th ose that do not, EPA determined that it would be inappropriate. The principal objective of the cellulosic content approach adopted today is to minimize burdens and streamline program implementation for both EPA and producers of cellulosic biofuel and prov ide incentives for production of fuels that are 75% or greater cellulosic content . However, for fuels made from feedstocks that do not meet the minimum cellulosic content threshold, testing (either of cellulosic content of feedstock or of the proportion o f fuel derived from cellulosic content) will be required. Incases where the expense and burden of testing is undertaken , EPA believes it is most consistent with the objectives of the Act for RI N apportionment to accuratel y reflect the test resu lts.*** E.O. 12866 Review

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Page **19** of **144** 4 . Testing, Registration, Reporting and Recordkeeping Requirements for Cellulosic Biofuel The agency

requested comment on test methods available to determine what percent age of a finished biofuel volume was derived from cellulosic or non - cellulos ic components. At the time of the proposal, we were not aware of any ready test that could be used to identify the amount of a finished fuel that was derived from cellulosic versus non - cellulosic components. However, we received several comments that sug gested there are methods available for this purpose. 12 Given this new information, we believe it is reasonable to require the use of these existing test methods under certain circumstances when fuel is produced from feedstocks that are not predominantly cellulosic to verify that the values used in the formula at § 80.1426(f)(3)(vi) are as accurate as possible. Therefore, as part of this final rule, we are requiring the use of these available test methods under certain circumstances described below to help ensure that an appropriate number of cellulosic RINs are generated when appl yi ng the formula at § 80.1426(f)(3)(vi) . As described in more detail below, different feedstocks and processes require more information to ensure a high degree of confidence that cellulosic biofuel RINs are appropriately generated. These registration, recordkeeping, and reporting requirements, including changes to the production process requirements of Table 1 to § 80.1426, are described in the following

12 C omments suggested various methods to determine the converted fraction, includ ing approaches for performing a mass - balance accounting of feedstock components converted to fuel products. As described in the associated memo to the docket, a mass balance approach which meets the requirements discussed below is an appropriate method for calculating the converted fraction. Converted fraction refers to the port ion of the feedstock converted into renewable fuel by the producer and is used in calculating cellulosic RIN volumes generated.*** E.O. 12866 Review

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Page **20** of **144** sections. These requ irements apply to all relevant future registrations and registration updates , including cellulosic biofuel pathway s approved pursuant to a § 80.1416 petition process .

a. Additional Registration Requirements for Producers Seeking to Generate Cellulosic Biofuel RINs At registration or during registration updates under § 80.1450(d)(3), all producers seeking to use a cellulosic biofuel pathway listed in rows K, L, M, and N of Table 1 to § 80.1426, or as otherwise approved b y EPA, must demonstrate that their production process has the ability to convert cellulosic components to fuel by including (1) a process diagram with all relevant unit processes labeled and a designation of which unit process is capable of performing cellulosic treatment; (2) a description of the cellulosic biomass treatment process; and (3) a description of the mechanical, chemical, and biochemical mechanism s by which cellulosic materials can be converted to fermentable sugars or biofuel products. Inaddition, an independent profess ional engineer must verify

that the equipment to perform each of the relevant unit processes required to convert cellulosic biomass to biofuel is in place as part of registration, in order to demonstrate that the conversion process will derive the finished fuel from cellulosic components. b . Additional Registration Requirements for Renewable Fuel Produced from Energy Cane*** E.O. 12866 Review

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Page **21** of **144** Energy cane is derived from sugarcane, which can be and is bred for a variety of uses and a wide range of fiber and sugar contents . 14 Prior to this rule, e nergy cane was defined in 40 CFR 80.1401 as “a complex hybrid in the Saccharum genus that has been bred to maximize cellulosic rather than sugar content.” This definition did not include an y specific requirements regarding cellulo sic content. However, some cultivars 15 of energy cane are bred to have a high sugar content and therefore have a lower percent cellulosic content. For example, two cultivars released b y USDA, which are commonl y referred to as energy cane, 16 have cellulosic contents of approximately

50% on a dry

matter basis. 17 Fuel produced from these cultivars would not be derived predominantly

from cellulose, hemicellulose, and lignin; instead, the fuel would largel y be derived from sugar. Therefore, in this rule EPA is amending the definition of energy cane to specify that it mean s cultivars that have, on average, at least 75% adjusted cellulosic content on a dry matter basis . Cultivars that do not meet the 75% adjusted cellulosic content threshold will be considered su garcane . With this clarification , only cultivars that have predominantly cellulosic content are included in the definition of energy cane and are qualified to generate cellulosic RINs for the entire volume of finished fuel produced. When cultivars containing less than 75%

14 Tew , Thomas L. and Robert M. Cobill. 2008. Genetic improvement of sugarcane ( Saccharum spp.) as an energy crop. p. 249 - 272. In: W. Verme rris (ed.) Genetic Improvement of Bioenergy Crops. Springer. 15 A cultivar is a subset of a species. USDA has provided a list of sugarcane cultivars (including energy cane). This list, “USDA ARS Sugarcane Release Notices 1999 to 2012,” is included in the docket. 16 Ho 00 - 961 and HoCP 91 - 552; Tew , Thomas L. and Robert M. Cobill. 2008. Genetic improvement of sugarcane ( Saccharum spp.) as an energy crop. p. 249 - 272. In: W. Vermerris (ed.) Genetic Improvement of Bioenergy Crops. Springer. 17 Tew , T. L. et al, 20 07. “Notice of release of high - fiber sugarcane variety Ho 00 - 961.” Sugar Bulletin, 85(10) 23 - 24. Tew , T. L. et al, 2007. “Notice of release of high - fiber sugarcane variety HoCP 91 - 552.” Sugar Bulletin, 85(10) 25 - 26. Ho 00 - 961 has a Brix value of 17 - 19% can e, and HoCP 91 - 552 has a Brix value of 15 - 18% cane, where Brix is a measure of the total soluble solids, including sugar. These Brix values are similar to the Brix value of a traditional sugarcane cultivar presented in these papers. Ho 00 - 961 has a perce nt cellulosic content of 47%, and HoCP 91 - 552 has a percent cellulosic content of 48%. The percent cellulosic content is calculated using the fiber content (as a measure of the cellulosic content) presented in the papers, divided by the total solids conte nt (Brix + fiber). By contrast, energy cane cultivar L 79 - 1002, w hich has a higher fiber content, has a Brix value of 8 - 12% cane, as reported by Bischoff, K.P. et al, 2008. “Registration of ‘L 79 - 1002’ sugarcane.” Journal of Plant Registrations, 2(3) 211 - 2 17, and Hale, A.L. 2010, “Notice of release of a high fiber sugarcane variety Ho 02 - 113.” Sugar Bulletin, 88(10) 28 - 29.*** E.O. 12866 Review

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Page **22** of **144** adjusted cellulosic content are used to make fuel, we consider those cultivars to be sugarcane and eligible to generate advanced biofuel RINs for the portion of fuel that is derived from sugar. If the bagasse is converted to renewable f uel, cellulosic RI

Ns could be generated for the amount of fuel derived from the bagasse (under the existing crop residue pathway). Upon registration, fuel producers seeking to produce cellulosic biofuel using energy cane feedstocks will need to submit dat a showing that the average adjusted cellulosic content of each energy cane cultivar they intend to use is at least 75%, based on the average of at least three representative samples of each cultivar. 18 Cultivars must be grown under normal growing condition s and consistent with accepted farming practices. Samples must come from a feedstock supplier that the fuel producer intends to use when operating their production process and must represent the feedstock supplier’s range of growing conditions and locatio ns . Producers that decide after initial registration to use energy cane or a new energy

cane cultivar will need to update their registration and provide data to EPA demonstrating the average adjusted cellulosic content for each cultivar they intend to use . Cellulosic content data must come from an anal yt ical method certified by a voluntary

consensus standards body (VCSB) or a non - VCSB method that would produce reasonabl y accurate results. 19 Producers using a non - VCSB approved method will need to show that the method used is an adequate means of providing reasonabl y accurate results by providing peer reviewed references to the third party engineer

18 As described above and in the Memo randum to the Docket , “Cellulosic Content of Various Feedstocks,” Docket EPA - HQ - OAR - 2012 - 0401 , adju sted cellulosic content is the percent of organic (non - ash) material that is cellulo se, hemicellulose, and lignin. Therefore, a calculation of the adjusted cellulosic content requires a measurement of the cellulosic content, as well as a measurement of th e ash content of a feedstock. 19 For example, AOAC 2002.04 “Amylase - Treated Neutral Detergent Fiber in Feeds” or ASTM E1758 “Determination of Carbohydrates in Biomass by High Performance Liquid Chromatography.” Voluntary consensus standards bodies are de fined as “ domestic or international organizations which plan, develop, establish, or coordinate voluntary standards using agreed - upon procedures.” See “Federal Use of Standards,” Office of Management and Budget, http://www.whitehouse.gov/omb/fedreg_a119rev .*** E.O. 12866 Review

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Page **23** of **144** performing the engineering review at registration. Because energy cane can be bred for a variety of uses, and different cultivars of energy cane can have different amounts of cellulosic material, these registration requirements will help ensure that fuel producers know whether or not the cultivars they

intend to use meet the 75% adjusted cellulosic content thresho ld and are qualified to generate RINs for the entire volume of finished fuel. EPA expects to require similar registration requirements for producers seeking to produce cellulosic biofuel using feedstocks that will be evaluated in the future that c ould sim ilarly be bred for a wide range of uses and fiber content.

c. Additional Registration, Recordkeeping, and Reporting Requirements for Producers of Cellulosic Fuels Derived from the Simultaneous Conversion of Feedstocks that are Predominantl y C ellulosic and Feedstocks that are Not Predominantly Cellulosic Under § 80.1426(f)(3)(vi) , if a renewable fuel producer produces a single type of renewable fuel (e.g., ethanol) using two or more different feedstocks which are processed simultaneously , and at least o ne of the feedstocks does not have a minimum 75% average adjusted cellulosic content , the producer would have to determine how much of the finished fuel is derived from the cellulosic versus non - cellulosic components of the feedstocks and assign RI Ns to th e finished fuel based on the relative “converted fractions ” . 20 Given variations in individual conversion processes, enz ym es used, and other differences, the amount of finished fuel that is derived from the cellulosic content can vary . For e xample, the process and enzy mes used may do a better job of converting the sugars and starches in a feedstock than the cellulose or

20 See § 80.1426(f)(3)(vi). Converted fraction refers to the portion of the feedstock converted into renewable fuel by the producer and is used in calculating cellulosic RIN volumes gener ated.*** E.O. 12866 Review

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Page **24** of **144** hemicellulose. In such a case the cellulosic content of the feedstock may not be a good indicator of the amount of finished biofuel that is derived from cellulosic materials. Furthermore, depending on the conversion process used, the amount of information needed to determine how much of the finished fuel is derived from the cellulosic content will also vary . The refore, EPA believes it is prudent to include specific requirements related to calculating the cellulosic converted fraction and to specify appropriate registration, recordkeeping, and reporting requirements for producers seeking to generate cellulosic RIN s using two or more feedstocks 21 which are processed simultaneously . EPA has attempted to minimize additional requirements, so has limited certain provisions to circumstances where a producer seeks to generate cellulosic RINs for fuel produced b y “in situ” biochemical h ydrol ys is treatment where cellulosic and non - cellulosic components of feedstocks (at least one of which is not predominantly

cellulosic) are simultaneousl y hydrol yz ed to fermentable sugars (e.g., corn starch and a crop residue). These additi onal registration, recordkeeping, and reporting requirements will also apply to producers that combine cellulosic - and non - cellulosic - derived sugars from separate h ydroly sis units prior to fermentation. In the latter case, the cellulosic conversion factor can be obtained by anal yz ing feedstock conversion in the cellulosic hydroly sis unit. A fundamental distinction relevant to verifying conversion of cellulosic content is whether or not a process converts the entire organic fraction into fuel. Thermochemical conversion is an example of a process that converts the entire organic fraction. Thermo chemical

21 As described in section IV.A.4, if a future feedstock does not meet the 75% threshold, we would expect to create two separate feedstocks and pathways.*** E.O. 12866 Review

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Page **25** of **144** processes mainl y consist of (1) p yrol ys is: a process in which cellulosic biomass is decomposed with temperature to bio - oils that can be further proces sed to produce a finished fuel or (2) gasification: a process in which cellulosic biomass is decomposed to sy nthesis gas (“s yn gas”) that with further catal yt ic processing can produce a finished fuel product. Thermo chemical processes typically conver t all of the organic components of the feedstock into finished fuel , thus the finished fuel produced from the thermo chemical process is proportional to the cellulosic content of the organic fraction of the feedstock material. Alternativel y, biochemical c onversion is an example of a non - thermochemical ty pe of process that does not convert the entire organic fraction into fuel. Biochemical processes convert different fractions of the cellulosic and non - cellulosic carboh ydrates to finished fuel . During thi s process, enz ym atic h ydrolysis release s sugars from feedstock carboh ydrates and employ s microorganisms to convert those sugars into fuels . Since thermochemical processes typicall y convert all of the organic components of the feedstock into finished fuel , fewer recordkeeping and reporting requirements are necessary to verify appropriate cellulosic biofuel RIN generation for producers using thermochemical conversion processes. In addition, since the finished fuel produced from the thermochemical process i s proportional to the cellulosic content of the organic fraction of the feedstock material, demonstration of the cellulosic content of the feedstock is the only additional registration requirement that is necessary for thermochemical processes. In contras t, biochemical conversion does not convert the entire organic fraction into fuel and the convert ed fraction is variable and not proportional to the cellulosic content of the organic fraction of the feedstock material .*** E.O. 12866 Review

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Page **26** of **144** Therefore, we believe it is prudent t o require additional registration, reporting, and recordkeeping requirements for in situ biochemical conversion processes to ensure that cellulosic RI Ns are appropriately

generated for the finished fuel. In the proposal, EPA requested comment on convers ion technologies, and we also requested comment on whether to allow 100% of the fuel produced via biochemical processes to generate cellulosic RINs. EPA received comments supporting our proposal to allow biochemical processes to generate 100% cellulosic RINs but, as discuss e d above , biochemical processes will also ty picall y convert portions of the sugar and starch components of the feedstock. If feedstocks containing significant amounts of starches and sugars are used in a biochemical process, the result ing fuel may not be predominantly

of cellulosic origin. Therefore, EPA is not finalizing this aspect of its proposal. Instead, EPA has finalized the cellulosic threshold approach which will allow cellulosic biofuel RIN generation for all fuel produced b y cellulosic conversion processes using feedstocks determined to have an average adjusted cellulosic content of at least 75%. i . Registration Requirements A s explained in section IV.A.3.a, at registration , producers seeking to use a cellulosic bio fuel pathway listed in rows K, L, M, and N of Table 1 to § 80.1426, or as otherwise approved by EPA, must demonstrate the ability to convert cellulosic components of their feedstock to fuel . In addition, p roducers seeking to generat e cellulosic RI Ns ( D co de of 3 or 7 ) using two or more different feedstocks (at least one of which does not have at least 75% average adjusted cellulosic*** E.O. 12866 Review

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Page **27** of **144** content) which are processed simultaneously using a thermochemical conversion process will be able to allocate cellulosic RI N s using the formula in § 80.1426(f)(3)(vi) where the cellulosic fraction is proportional to the cellulosic content of the feedstock. The average adjusted cellulosic content of the feedstock will have to be reported at registration, based on th e average of at least three representative samples , and c ellulosic content data must come from an anal yt ical method certified b y a voluntary

consensus standards body (VCSB) or a non - VCSB method that would produce reasonabl y accurate results. 22 Producers us ing a non - VCSB approved method will need to show that the method used is an adequate means of providing reasonably accurate results by providing peer reviewed references to the third party engineer performing the engineering review at registration. Produc ers that later want to change their feedstock will need to update their registration. Producers generating RINs with a D code of 3 or a D code of 7 using two or more different feedstocks (at least one of which does not have at least 75% average adjusted cellulosic content) which are processed simultaneously through an in situ biochemical hydrol ys is treatment will similarly have additional registration requirements to help ensure that cellulosic RI N s are being generated accurately . At the time of registration, such a producer must submit (1) the overall fuel yi eld (total fuel volume / total feedstock mass) 23 , including supporting data demonstrating this yi eld and a discussion of the possible variability in overall fuel yield that could be expected between reporting periods; (2) the cellulosic converted fraction that will be used for generating RINs under § 80.1426(f)(3)(vi), including chemical analy sis data (described

22 For example, AOAC 2002.04 “Amylase - Treated Neutral Detergent Fiber in Feeds” or ASTM E1758 “D etermination of Carbohydrates in Biomass by High Performance Liquid Chromatography.” 23 The overall fuel yield is determined to be the total volume of fuel produced (e.g., cellulosic plus non - cellulosic fuel volume) divided by the total feedstock mass (sum of all feedstock masses).*** E.O. 12866 Review

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Page **28** of **144** in more detail below) supporting the calculated cellulosic converted fraction and a discussion of the possible variability

that could be expected between reporting periods ; and (3) a description of how the cellulosic converted fraction is determined and calculations showing how the dat a were used to determine the cellulosic converted fraction . Data used to calculate the cellulosic converted fraction by producers using in situ biochemical h ydrol ys is treatment who seek to generate cellulosic RINs must be representative and obtained using an analy tical method certified by

a volunt ary

consensus standards body (VCSB) or using a non - VCSB method that would produce reasonably accurate results. If using a non - VCSB approved method to generate the data required to calculate the cellulosic converted fraction for a given fuel, then the producer will need to show that the method used is an adequate means of providing reasonably accurate results by

providing peer reviewed references to the third party

engineer performing the engineering review at registration. A full description of the formulas in § 80.1426(f)(3) used to calculate RINs for renewable fuel described by two or more pathway s, including methods used to calculate the converted fraction , can be found in the associated memo to the docket. 24 ii . Additional Cellulosic Converted F raction Reporting and Recordkeeping Requirements Producers generating cellulosic RI Ns using two or more different feedstocks (at least one of which does not have at least 75% average adjusted cellulosic content) which are processed simultaneously us ing an in situ biochemical hydroly sis treatment will also have additional

24 INSERT CITE TO MTD ON HOW TO CALCULATE THE CF*** E.O. 12866 Review

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Page **29** of **144** recordkeeping and reporting requirements to provide ongoing verification that the cellulosic RI Ns are being accurately

allocated . The converted fraction provides a comprehensive a ccounting of the portion of a feedstock that is converted into cellulosic fuel. The formula in § 80.1426(f)(3)(vi) requires producers to calculate a converted fraction for each category of RINs generated. That converted fraction is then used to det ermine the appropriate number and ty pe of R INs to assign to a batch of renewable fuel. Comments suggested calculating the amount of the finished fuel derived from the cellulosic and non - cellulosic components could create an administrative burden if requi red on a batch - by- batch basis. EPA is structuring applicable registration, recordkeeping, and reporting requirements in a manner intended to result in accurate accounting while also avoiding overly burdensome requirements. Therefore the final rule provid es that the cellulosic converted fraction will initially

be based on the data submitted at registration. This upfront converted fraction determination will apply to RI N s produced until a new converted fraction allocation is available and reporte d . The interval at which a new converted fraction must be reported is similarly intended to avoid unnecessary burden on producers. EPA is requiring that low volume producers calculate the cellulosic converted fraction annuall y. However, for higher volume producers, we believe more frequent calculating and reporting is prudent and are requiring that the cellulosic converted fraction be recalculated within 10 business day s of every 500,000 gallons of cellulosic RI Ns generated. This information wil l be reported in*** E.O. 12866 Review

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Page **30** of **144** the quarterl y report. Low - volume producers may report the current converted fraction value used to generate RINs on their quarterl y reports if the y have not produced 5 00,000 cellulosic gallons in the calendar ye ar. Periodic cellulosic converted fraction determinations will be made by collecting new process data and performing the same chemical anal ys is approved at registration , using representative data . If at an y point new data show that the converted fraction is different from th at reported in the previous period, the formula used to generate RINs at § 80.1426(f)(3)(vi) must be updated as soon as practical but no later than 5 business day s after the producer receives the new data. If new testing data results in a change to the ce llulosic converted fraction , onl y RI

Ns generated after the new testing data were received would be affected. In addition if a renewable fuel producer changes their process (for example, stops using enzy mes in their cellulosic h ydrol ys is or changes the e nzy mes used), the producer must calculate a new converted fraction and update their registration consistent with § 80.1450(d). Given the natural variation in cellulosic content and conversion efficiencies, EPA recognizes some variation will exist in th e amount of cellulosic fuel that is derived from the cellulosic components of a feedstock. However, certain circumstances raise significant concerns with respect to cellulosic RI N generation. While we believe that variation within 10% of the previously

c alculated numbers may

result under normal operating conditions, larger variations raise concerns that the process or feedstock has significantly changed from what was approved at registration. I f the cellulosic converted fraction deviates f rom the previously

calculated cellulosic converted fraction by 10% or more, it is appropriate for the producer to alert EPA to this change and update the formula used to calculate RI N allocations as soon as possible. T he producer must (1) notify

EPA withi n 5 business days and (2) adjust the formula used to generate*** E.O. 12866 Review

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Page **31** of **144** RI Ns at § 80.1426(f)(3)(vi) for all fuel generated as soon as practical but no later than 5 business day s after the producer receives the new data. As explained above, if new testing data resul ts in a change to the cellulosic converted fraction , only RI Ns generated after the new testing data were received would be affected. 5 . Determining the Average Adjusted Cellulosic Content of Feedstocks Going Forward EPA will app ly

the minimum average adjusted cellulosic content threshold framework described above for feedstocks evaluated in the future. If these feedstocks meet the 75% average adjusted cellulosic content threshold, we will allow the fuel producer using them in ap proved cellulosic biofuel pathway s to generate cellulosic RI Ns for all of the finished fuel volume. If the feedstock does not meet the 75% threshold, we would expect to create two separate regulatory pathway s – one involving “cellulosic components of [fee dstock X ]” and another involving “non cellulosic components of [feedstock X]”). A producer using both of these feedstocks which are processed simultaneously , would allocate cellulosic and non - cellulosic RI Ns using the formula in § 80. 1426(f)(3)(vi). F uel producers using feedstocks evaluated in the future would also be subject to the appropriate registration , reporting, and recordkeeping requirements described in section IV.A.3. EPA anticipates that it will determine the cellulosic content of newly evaluated feedstocks that might be used to produce cellulosic biofuel up front when it conducts a lifecycle anal ys is of a pathway

involving the new feedstock. For example, EPA will calculate the average adjusted cellulosic content of f eedstocks such as energy sorghum and energy beets at the same*** E.O. 12866 Review

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Page **32** of **144** time that we evaluate the lifecycle GHG emissions associated with these feedstocks. As with lifecycle anal ys es, EPA may undertake the evaluation of the cellulosic content of feedstocks either i n the context of a rulemaking to amend Table 1 to § 80.1426, or in response to an individual petition submitted pursuant to § 80.1416. In either case, EPA will clarify whether the feedstock meets the 75% cellulosic content threshold allowing cellulosic RI Ns to be generated for the entire fuel volume produced, or if the producer should use the apportionment method in § 80.1426(f)(3)(vi). F uture petitioners pursuant to the process in § 80.1416 should submit peer reviewed data on the average cellulosic cont ent of their feedstock as well as their own estimate of cellulosic content based on these data. In the proposal, EPA sought comment on whether individual producers should be responsible for submitting data on the cellulosic content of their feedstock, or whether EPA should determine whether feedstocks meet the threshold based on existing published data. We received comments that EPA should determin e whether feedstocks meet the threshold and should use existing published data . Inaddition, we received a range of opinions on whether the producer should also be required to provide data. Some comments suggested that EPA should use both existing published data and data from the producer, because academic publications may not be up to date with industry . S ome comments said fuel producers should be allowed to present data if their feedstocks have higher cellulosic content than published data. One comment said that if no peer - reviewed data exist, the producers should provide data. Some comments suggested th at producers should be required to maintain documentation of cellulosic content, as well as evidence that the cellulosic content was the primary source of biofuels production. Others commented that producers should not be required to measure, submit and c ertify*** E.O. 12866 Review

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Page **33** of **144** feedstock composition. In the future, producers should submit data regarding cellulosic content in order to ensure a determination is made on the most up to date data. EPA will evaluate this information, together with other available information, o n a case b y case basis to determine whether feedstocks meet the cellulosic content threshold . 6. Other Comments Received EPA considered a range of alternative approaches for determin in g appropriate cellulosic RI N generation with different types of fe edstocks. These approaches were discussed in the NPRM and also evaluated in public comments. This section discusses these alternative approaches and comments.

a. Treatment of Cellulosic Feedstocks Currentl y Listed in Table 1 to 40 CFR 80.1426 In the NPRM, EPA sought comment on multiple approaches for determining the volume of cellulosic RI

Ns from currentl y approved cellulosic feedstocks listed in Table 1 to § 80.1426. Many commenters preferred allowing feedstock sources listed in Table 1 to § 80.1426 to generate cellulosic RINs without applying a threshold, although some commenters asserted a minimum content threshold could be used in conjunction with the proposed approach . In addition, one commenter suggested adding “planted trees from a tree plantation” to Table 1 to § 80.1426. 25 However, this addition would require further analy sis of the lifecycle greenhouse gas emissions of this feedstock, and is beyond the scope of this rule. As discussed above, EPA is 25 Comment provided by Blue Source (EPA - HQ - OAR - 2012 - 0401 - 0137).*** E.O. 12866 Review

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Page **34** of **144** finalizing the cellulosic content thresho ld approach that generall y qualifies all fuel produced from predominantl y cellulosic feedstocks pursuant to existing cellulosic biofuel pathway s listed in Table 1 for cellulosic RI Ns. In addition, the approach will guide EPA evaluation of future feedstock s not currentl y i ncluded in Table 1 to §80.1426. Some commenters asserted EPA should adopt a plurality approach to determining whether cellulosic RINs could be generated when using particular feedstocks . 26 In stead of requiring that the cellulosic content make up a predominant percentage of the organic material from which the fuel is derived, under this approach, feedstocks would be deemed cellulosic if a plurality of the contained material is cellulosic . EPA acknowledges that such an approach would like ly lead to larger production volumes of cellulosic biofuels. However, as discussed above, the statutory definition of cellulosic biofuel provides that they are “derived from cellulos e, hemicellulose, or lignin.” EPA believes that to effectuate Congressio nal intent in promoting fuels derived from these sources, it is appropriate to require that qualifying fuels be predominantly

cellulosic in content. Therefore the 75% cellulosic content threshold approach adopted today

is preferable in this regard to the commenter’s suggestion. Other commenters contended EPA should establish a minimum cellulosic content for individual feedstocks and assign RINs based onl y on this content, instead of allowing feedstocks currentl y listed in Table 1 to § 80.1426 to generat e cellulosic RINs for their entire fuel volume. 27 EPA believes this approach would create unnecessary administrative and regulatory burden.

26 Comments provided by Smithfield Foods (EPA - HQ - OAR - 2012 - 0401 - 0103) and the National Association of Clean Water Agenci es (EPA - HQ - OAR - 2012 - 0401 - 0178). 27 Comments provided by AFPM/API (EPA - HQ - OAR - 2012 - 0401 - 0128) and Chevron (EPA - HQ - OAR - 2012 - 0401 - 0171).*** E.O. 12866 Review

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Page **35** of **144** Instead of setting a minimum content for each individual feedstock, EPA is finalizing a single cellulosic content threshold. EPA has determined that most of the feedstocks listed in Table 1 to 80.1426 for cellulosic biofuel pathway s satisfy the 75% cellulosic content threshold adopted today . In addition, a s described in section IV.A.4, EPA will assess the cellulosic content of future individual feedstocks as part of the lifecycle anal ys is process and determine whether the feedstock exceeds this threshold . Therefore, individual feedstocks will be analyzed to determine if they meet the minimum cellulosic content thres hold, and different regulatory provisions apply depending on the result. Several commenters stated that the emphasis should be placed on whether a feedstock meets the 60 percent reduction in greenhouse gas emissions relative to the baseline petroleum fue l they replace, 28 particularly

where a feedstock is predominantly cellulosic. 29 One commenter also noted the agency

should emphasize whether the feedstock has similar overall environmental qualities as a feedstock that is entirely cellulosic, such as the po tential to avoid competition with food, the potential to require less fertilizer, pesticides, and irrigation, and the potential for a lower fossil fuel energy

input requirement. 30 Inresponse, EPA notes that it is required to implement the statutory

requir ements, and that the CAA is clear that a cellulosic biofuel must be both derived from cellulosic materials and meet the 60 percent GHG emission reduction threshold. Therefore, EPA is not free to establish regulations focus ing exclusively on attainment of the 60% GHG reduction threshold, while ignoring the cellulosic content of the feedstock used to produce the fuel. In addition , EPA notes that in determining whether or not the fuel produced

28 Comments provided by BP (EPA - HQ - OAR - 2012 - 0401 - 0130), Iowa Corn Growers Association (EPA - HQ - OAR 2012 - 0401 - 0131), and NRDC (EPA - HQ - OAR - 2012 - 0401 - 0136). 29 Comments provided by BP (EPA - HQ - OAR - 2012 - 0401 - 0130) and NRDC (EPA - HQ - OAR - 2012 - 0401 - 0136). 30 Comment provided by NRDC (EPA - HQ - OAR - 2012 - 0401 - 0136).*** E.O. 12866 Review

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Page **36** of **144** pursuant to a particular pathway satisfies the minimum 60 percent GHG reduction threshold for cellulosic biofuel, EPA does take into consideration a number of factors of concern to the commenter, including use of fertilizer and amount of fuels consumed in the production process. T he A genc y will continue to evaluate lif ecycle emissions for feedstocks and require this reduction in greenhouse gas emissions for cellulosic pathway s. EPA also sought comment on a specified percentage approach, under which fuels produced from feedstocks listed in Table 1 t o § 80.1426 would be eligible to generate cellulosic RI Ns for 85% of their volume, and the remaining 15% would be eligible to generate advanced RI Ns. This percentage was based on data that suggested that the average adjusted cellulosic content of the predominantly cellulosic feedstocks currentl y listed in Table 1 for cellulosic biofuel pathway s was approximately 85%. Commenters generall y opposed the specified percentage approach, asserting that it would create administrative burden to track two classes of RI Ns, that a partial loss of cellulosic RINs could hurt the financial viability of producers, and that there is the possibility of RIN generation errors . 31 EPA has concluded that this approach would significantly increase the complexity

of the program without providing addi tional environmental benefits. EPA believes the additional precision the method would provide is not justified in light of the administrative and regulatory burden associated with it, and that overall the cellulosic content threshold approach we are

31 Comments provided by National Sorghum Producers ( EPA - HQ - OAR - 2012 - 0401 - 0065), the Renewable Fuels Association ( EPA - HQ - OAR - 2012 - 0401 - 0123), Weyerhaeuser ( EPA - HQ - OAR - 2012 - 0401 - 0140), NexSteppe ( EPA HQ - OAR - 2012 - 0401 - 0153), the Independent Fuel Terminal Operators Association ( EPA - HQ - OAR - 2012 - 0401 - 0165) and Global Renewable Strategies and Consulting, LLC ( EPA - HQ - OAR - 2012 - 0401 - 0184). Some commenters expressed support for the specified percentage approach. See comments provided by the AFPM/API ( EPA - HQ OAR - 2012 - 0401 - 0128 ), Phillips 66 ( EPA - HQ - OAR - 2012 - 0401 - 0102 ), Chevron ( EPA - HQ - OAR - 2012 - 0 401 - 0171 ), and Camco ( EPA - HQ - OAR - 2012 - 0401 - 0183 )*** E.O. 12866 Review

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Page **37** of **144** adopt ing today

provides an appropriate balance of the competing considerations of precision and adopting a workable approach. Therefore, for the reasons described above, EPA is finalizing the content threshold approach. b. Feedstocks with L ower Average Cel lulosic Content than Feedstocks Currently Listed in Table 1 to § 80.1426 In the proposal, EPA also invited comment on how to treat feedstocks that had lower average cellulosic content than the feedstocks currently listed in Table I to § 80.1426 . Some co mmenters suggested using an approach with multiple thresholds, where fuel made from feedstocks that meet the highest cellulosic content threshold would receive 100% cellulosic RI Ns, and fuel made from feedstocks meeting lower thresholds would receive a fix ed percentage of cellulosic RINs, with the remaining fuel receiving advanced RINs. Some comments suggested cellulosic RINs should not be generated for fuels with low cellulosic content. 32 Other commenters stated that the existing regulations in § 80.1426( f)(3) were sufficient to handle the allocation of RINs for the cellulosic and non - cellulosic portions of the finished fuel. 33 They noted that these regulations already provide a way to assign RINs for a mixture of fuel types with different D - codes. After evaluating these comments, EPA has concluded that the approach provided b y the existing regulations in § 80.1426(f)(3) to allocating cellulosic and non - cellulosic RI Ns is preferable. This sy stem is already established, and is designed to accurately apport ion the finished fuel to account for cellulosic biofuel conversion, potentially allowing for a greater
32 Comments provided by NRDC (EPA - HQ - OAR - 2012 - 0401 - 0136). 33 Comments provided by the National Corn Growers Association (EPA - HQ - OAR - 2012 - 0401 - 0071), Novozymes North America, Inc. (EPA - HQ - OAR - 2012 - 0401 - 0088), and the Rene wable Fuels Association (EPA - HQ - OAR 2012 - 0401 - 0123), the Iowa Corn Growers Association (EPA - HQ - OAR - 2012 - 0401 - 0131), and Edeniq (EPA - HQ OAR - 2012 - 0401 - 0159).*** E.O. 12866 Review

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Page **38** of **144** proportion of cellulosic RI N generation than would be allowed in establishing a series of thresholds with fixed percentages of cellulosic RIN generation. **B. Lifecycle Greenhouse Gas Emissions Analysis**  **and Cellulosic Determinations for Pathways**  **Using Biogas as a Feedstock** In the March 2010 RFS final ru le, EPA established biogas as an advanced fuel ty pe (D code of 5) when derived from landfills, sewage waste treatment plants, and manure digesters. Based on questions from companies, EPA proposed to: 1) modify the existing biogas pathway to specify that compressed natural gas (CNG) or liquefied natural gas (LNG) is the fuel and biogas from landfills, wast e treatment plants, and waste digesters is the feedstock ; 2) allow fuels derived from landfill biogas to qualify for cellulosic RI

Ns rather than just advanced RI Ns; 3) add a landfill biogas to renewable electricity pathway ; and 4) add a Fischer - Tropsch lan dfill biogas pathway . Based on comments and new data received, in this rule we are: 1) finalizing the proposed change to make CNG and L NG the fuel and biogas from specified sources the feedstock; 2) expanding the cellulosic pathway s to include biogas from landfills, municipal wastewater treatment facility digesters , agricultural digesters, and separated MSW digesters ; 3) finalizing the proposed change to add an advanced pathway for fuels from waste digester biogas; and 4) expanding the renewable electric ity pathway to include biogas from landfills, wastewater treatment plants , agricultural digesters, MSW digesters, and waste digesters. Due to time*** E.O. 12866 Review

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Page **39** of **144** constraints, we are not finalizing a Fischer - Tropsch landfill biogas pathway at this time. However, we expec t to address this pathway in a future action . Our determinations regarding biogas derived renewable CNG, LNG and electricity are discussed more full y in the following sections. This section discusses:

 Changes Applicable to the Revised CNG/LNG pathway f rom Biogas  Determination of the Cellulosic Content of Biogenic Waste Derived Biogas o Landfill gas and MSW waste digester biogas as cellulosic o Municipal wastewater treatment facility digester biogas as cellulosic o Agricultural digester biogas as ce llulosic o Biogas from Waste Digesters  Consideration of L ifecycle GHG Emissions Associated with Biogas Pathway s o Upstream GHG Anal ys is of Biogas as a Renewable Fuel Feedstock o Flaring Baseline Justification o Lifecycle GHG Anal ys is for Electricity from Biogas  A lternative Biogas Options and Comments The following section, “Regulatory Amendments Related to Biogas” will discuss additional clarifications and changes to the regulations associated with the biogas pathway s. 1. Changes Applicable to the Revised CNG/LN G pathway from Biogas Prior to this rulemaking, an approved fuel pathway in Table 1 to § 80.1426(f)(1) allow ed biogas from landfill s , manure digesters or sewage treatment plants to qualify as an advanced*** E.O. 12866 Review

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Page **40** of **144** biofuel . W e received many requests about what fuel qualifies under this pathway , including what renewable fuel ty

pe s qualif y under the term “biogas,” and what are the eligible sources of biogas . In response, EPA proposed to make several changes to the regulations related to biogas. EPA is now characteri zing biogas as a transportation fuel feedstock and is amending the existing biogas pathway

in Table 1 to § 80.1426 by changing the renewable fuel type in the pathway from “biogas” to “renewable compressed natural gas (renewable CNG) and renewable liquefied natural gas (renewable LNG) . ” EPA is also changing the feedstock ty pe of “landfills, manure digesters or sewage waste treatment plants” to “biogas from landfills, municipal wastewater treatment facility digest e r s, agricultural digesters, and separated MSW digesters” for a pathway

producing cellulosic biofuels. Finally , EPA is adding a new advanced biofuel pathway for fuels produced using “biogas from waste digesters” as the feedstock ty pe . In this final rule, we are changing the term “sewage waste treatment plants” to “municipal wastewater treatment facility digester s” since “sewage waste treatment plants” is not a commonly

used term and to clarify

that the digester is the source of the biogas . We are also defining an “ agricultural digester” as an anaerobic digester that processes predominantly cellulosic materials including animal manure, crop residues, and /or separated yard waste. The existing biogas pathway in Table 1 to § 80.1426 refers to “biogas” as the renewable fuel ty pe and “landfills, manure digesters and sewage waste treatment plants” as the feedstock. Several c ompanies raised questions about whether the term “biogas” in this pathway could refer to the unprocessed or raw gas from the landfills, manure digesters or sewage treatment plants, o r*** E.O. 12866 Review

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Page **41** of **144** processed “biogas” that has been upgraded and could be used directl y for transportation fuel . Companies also asked about use of biogas as an ingredient in the production of transportation fuel , as an energy

source used in the production of transportatio n fuel, and other fuel types that can be produced from the raw biogas either through a phy sical or chemical process (such as CNG, L NG, renewable electricity , renewable diesel , dimethyl ether or naphtha). The se companies further inquire d whether the variou s forms of biogas discussed above could qualify under this pathway

and therefore be eligible for RIN generation under the RFS program. T he term “biogas” in this pathway is used broadly

in the industry

to refer to various raw and processed forms of the b iogas from various sources. However, under the existing requirements in § 80.1426(f)(10) and (11), only biogas that is used for transportation fuel can qualify as renewable fuel for RIN generation under the RFS program , and thus we believe it is appropriate to view raw biogas as a feedstock rather than a transportation fuel itself . EPA recognizes that raw biogas cannot be used directly in the transportation sector and must be phy sicall y or chemically treated to generate a finished transportation fuel elig ible for RIN generation. Raw biogas can be put through a ph ysical process in which it is compressed or liquefied to produce CNG or LNG . Because these fuels can be used directly for transportation purposes, it seems appropriate to identify these products as “fuels” that are produced using biogas . We are finalizing revisions to the definition of biogas and new definitions for renewable CNG , renewable LNG , and agricultural digester to § 80.1401 to read as follows:*** E.O. 12866 Review

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Page **42** of **144** Biogas : a mixture of hydroc arbons that is a gas at 60 degrees Fahrenheit and 1 atmosphere of pressure that is produced through the anaerobic digestion of organic matter. Renewable compressed natural gas (“renewable CNG”) mean s biogas or biogas derived pipeline quality gas that is compressed for use as transportation fuel . Renewable liquefied natural gas (“renewable LNG”) mean s biogas or biogas derived pipeline quality gas that goes through the process of liquefaction in which it is cooled below its boiling point. Agricultura l digester means an anaerobic digester that processes predominantly cellulosic materials, including animal manure, crop residues, and /or separated yard waste. These finalized definitions reflect comments we received that supported our changes to the “bi ogas” pathway

as discussed above, namely changing fuel to CNG/LNG and adding a description of the applicable biogas feedstocks. The finalized definitions for CNG/LNG also reflect comments we received suggesting that we clarify whether biogas used on - site and not sent through a pipeline would fall within the pathway . In order to clarify that biogas used on - site and not sent through a pipeline would also qualify , the proposed definitions of renewable CNG and LNG were modified to indicate that either biogas or pipeline - quality gas can be compressed to make renewable CNG and L NG.*** E.O. 12866 Review

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Page **43** of **144** 2 . Determination of the Cellulosic Content of Biogenic Waste -Derived Biogas In order for fuels produced from biogas as a feedstock to qualify for cellulosic RI Ns (D c ode of 3 or D code of 7) , the renewable fuel must be derived predominantly from cellulosic materials and must meet a 60% GHG emissions reduction threshold, as described in the following sections. EPA proposed to allow renewable fuel derived from landfill bio gas to qualify as cellulosic biofuel and solicited comment on whether biogas from other sources should also be qualified as cellulosic biofuel. Based on new data and comments received during our public review process, EPA has determined that biogas ge nerated b y landfills, municipal wastewater treatment facility digesters , agricultural digesters, and separated MSW digesters are predominantly

cellulosic in origin, and that biogas derived from waste digesters processing non cellulosic renewable biomass th erefore qualifies as an advanced biofuel feedstock. D ata supporting these determinations are discussed in more detail in an associated memo to the docket 34 , and the main findings are provided forthwith.

a. Landfill Biogas and MSW Digester Biogas as Cellulo sic in Origin In the June 2013 NPRM, EPA proposed to classify renewable fuels produced from landfill biogas as derived from cellulose, hemicellulose or lignin, and therefore eligible to generate cellulosic RINs (D c ode of 3 and D code of 7). EPA cited a 1989 study that concluded 34 “Support for Cellulosic Determination for Waste Derived Biogas and Summary of Lifecycle Analysis Assumptions and Calculations for Biofuels Produced from Waste Derived Biogas,” which has been placed in docket EPA - HQ - 2014 - ####.*** E.O. 12866 Review

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Page **44** of **144** that not only

was the average cellulosic content of the organic fraction of municipal solid waste ( OF MSW) 35 approximately 90%, but that roughl y 90% of the methane generated in landfills was derived from the cellulose and hemicellul ose 36 portions of the OF MSW as the basis for this proposal. Some commenters argued that MSW landfill gas was not cellulosic because a large portion of the waste disposed is food waste which contains some non - cellulosic components. We do not believe this affects our determination for several reasons. Our cellulosic content determination is based on an average mixture of MSW components that includes food waste. Since the average cellulosic content of the organic fraction of MSW is approximately 90%, EPA b elieves that organic matter in MSW landfills is predominantly cellulosic in origin. Furthermore, man y of the non - cellulosic components of food waste are oxidized in the early stages of waste decomposition during the collection, handling and transportation and released as CO 2 instead of CH 4 . Therefore, a greater proportion of the biogas produced from anaerobic digestion (and subsequently used as a transportation fuel) comes from the remaining cellulosic components. Some commenters stated that only about 2 7% of MSW landfill gas can be considered to be derived from renewable biomass , and thus, any transportation fuel derived from the bio gas cannot even be considered to be eligible for RIN generation . However, EPA determined in the March 2010 RFS rule that biogas from MSW landfills is derived from renewable biomass,
35 The study specifies the “volatile solids” of the MSW to be 90% cellulosic. Volatile solids refer to organic compoun ds of plant or animal origin that have caloric value and are susceptible to bioconversion during anaerobic digestion. 36 Barlaz, M.A., R.K. Ham, and D.M. Schaefer. 1989. Mass - balance analysis of anaerobically decomposed refuse. Journal of Environmental Engi neering, 15(6) 1088 - 1102.*** E.O. 12866 Review

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Page **45** of **144** namely separated yard and food wastes, and EPA did not propose to change that finding. Thus , this comment is not relevant to the current rulemaking. EPA invited comment and data on the prop osed approach to treat landfill biogas as being derived from cellulose, hemicellulose and lignin. Some commenters argued that landfill biogas should not be considered as cellulosic, 37 others supported considering landfill biogas as cellulosic, 38 and still o thers requested that EPA expand the proposed determination to include biogas derived from additional sources process ing biogenic wastes as cellulosic. 39 Commenters that opposed considering landfill gas as cellulosic pointed to the EPA proposal that relied on a single study to justify this approach. This was not, in fact, the case, and EPA had reviewed, discussed and cited numerous studies to support this determination. 40 Moreover, s ubsequent to the June 2013 proposal, EPA updated its literature review and f ound additional peer reviewed studies that support our proposed assessment that biogas from landfills is predominantly derived from cellulosic components. The studies considered a broad spectrum of landfills, including studies comparing differences among landfill design, operating practices, regional influence, and ty pical waste loadings throughout the United States over more than two decades. Therefore, our

37 See “Comment submitted by Friends of the Earth, Sierra Club, Center for a Competitive Waste Industry”, docket number EPA - HQ - OAR - 2012 - 0401 - 0164. 38 See for example, “ Comment submitted by Kerry Kelly, Director, Federal Public & Re gulatory Affairs, Waste Management (WM) ” , d ocket number EPA - HQ - OAR - 2012 - 0401 - 0112 and “ Comment submitted by Stewart T. Leeth, Assistant Vice President, Environmental and Corporate Affairs and Senior Counsel, Smithfield Foods, Inc. ” docket number EPA - HQ - OA R- 2012 - 0401 - 0103 . 39 See “Comment submitted by Stewart T. Leeth, Assistant Vice President, Environmental and Corporate Affairs and Senior Counsel, and Dennis Treacy, Executive Vice President and Chief Sustainability Officer, Smithfield Foods, Inc.”, docket number EPA - HQ - OAR - 2012 - 0401 - 0111, and “ Comment submitted by Cynthia A. Finley, Director, Regulatory Affairs, National Association of Clean Water Agencies (NACWA) ”, docket number EPA - HQ OAR - 2012 - 0401 - 0178 . 40 “Support for Cellulosic Determination for Landf ill Biogas and Summary of Lifecycle Analysis Assumptions and Calculations for Biofuels Produced from Landfill Biogas , ” which has been placed in docket EPA - HQ - OAR - 2012 - 0401.*** E.O. 12866 Review

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Page **46** of **144** determination that the biogas generated in landfills is predominantly derived from cellulose and h emicellulose is well supported . 41 Since separated MSW digesters would use the same biogenic materials that are present in landfills, and generate biogas b y the same anaerobic processes, a logical extension of the reasoning and data described above justif ies treating the biogas generated by MSW digesters processing separated MSW or the organic fraction of MSW kept from landfills as part of organic diversion programs as cellulosic as well. Therefore, we have included biogas from MSW digesters as a feedstoc k in cellulosic biofuel pathway Q in Table 1 to § 80.1426. b. Municipal Wastewater Treatment Facility Digester Biogas as Cellulosic For purposes of this rule, the term “municipal wastewater treatment facility digester” means an anaerobic digester that pro cesses the sludge, undissolved solids, and biosolids derived from municipal wastewater whether or not the facility is owned by

a municipality . While there are substantial data characterizing the solids content of municipal wastewater, there are somewhat l ess data characterizing the composition of materials entering the digesters specificall y. The average adjusted cellulosic content of the unprocessed wastewater solids

– including primary

sludge, activated sludge, and biosolids 42

– is greater than 75%. 43 However, for

41 Barlaz, M.A., R.K. Ham, and D.M. Schaefer. 1989. Mass - balance analysis of anaero bically decomposed refuse. Journal of Environmental Engineering, 15(6) 1088 - 1102. Mehta, R., Barlaz, M.A., Yazdani, R., Augenstein, D. Bryars, M. and Sinderson, L. 2002, “Refuse Decomposition in the Presence and Absence of Leachate Recirculation,” J. Envir on. Eng., 128, 3, 228 - 236 Staley, B. F. and M. A. Barlaz, 2009, Composition of Municipal Solid Waste in the U.S. and Implications for Carbon Sequestration and Methane Yield,” J. Environ. Eng. 135, 10, 901 - 909 Additional citations were offered in comments f rom Wa ste Management 42 Activated sludge and biosolids typically refer to aerobically treated residuals from the processing of municipal wa stewater solids.*** E.O. 12866 Review

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Page **47** of **144** the purposes of calculating the average adjusted cellulosic content of materials entering the wastewater treatment facility digesters, we believe it is more appropriate to use the subset of peer - reviewed data that analyzes the activated sludge and biosolids. The material that enters the digester ty picall y includes the undissolved solids that are recovered from the primary clarification tank and the solids that are allowed to settle out in a secondary clarificat ion tank following aerobic treatment . Therefore, the data for activated sludge and biosolids more closely resembles the material that actually enters the digesters at wastewater treatment facilities . Inaddition, the data related to activated slu dge and biosolids is more consistent and comparable, and therefore provides a more robust estimate of the cellulosic content. The average adjusted cellulosic content was obtained by dividing the reported cellulosic fraction b y the convertible organic fraction (minus the percent organic nitrogen, which does not convert to methane) . Based on th e s e data, this material is on average composed of 2 2 % cellulose, 36 % hemicellulose, and 2 1 % lignin. 44 Therefore, we estimate that the material used to generate the biogas through anaerobic digestion from wastewater treatment facilities is, on average, greater than 75% cellulosic. These data and anal ys es are described in more detail in a memo to the docket . 45

43 Wang, Xue. 2008. Feasibility of Glucose Recovery from Municipal Sewage Sludges as Feedstocks Usin g Acid Hydroly sis. Masters Thesis Queen's University, Ontario, Canada. Champagne, P. & Li, C. 2009 "Enzymatic hydrolysis of cellulosic municipal wastewater treatment process residuals as feedstocks for the recovery of simple sugars. Bioresource Technology. Vol 100 pp 5700

– 5706. See memo to the docket: “Support for Classification of Biofuel Produced from Waste Derived Biogas as Cellulosic Biofuel and Summary of Lifecycle Analysis Assumptions and Calculations for Biofuels Produced from Waste Derived Biogas . ” 44 Wang, Xue. 2008. Feasibility of Glucose Recovery from Municipal Sewage Sludges as Feedstocks Using Acid Hydroly sis. Masters Thesis Queen's University, Ontario, Canada. Sun & Cheng. 2002. "Hydroly sis of lignocellulosic materials for ethanol production: a revie w. Bioresource Technology. Vol 83 pp 1 - 11 . 45 Data available for pre - digested biosolids and methods for estimating the aggregate adjusted cellulosic content is presented in the memo to the docket: “Support for Classification of Biofuel Produced from Waste Derived Biogas as Cellulosic Biofuel and Summary of Lifecycle Analysis Assumptions and Calculations for Biofuels Produced from Waste Derived Biogas ”*** E.O. 12866 Review

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Page **48** of **144** c. Agricultural D ig ester G as as C ellulosic In this rule we are defining “agricultural digesters ” to be “ anaerobic digesters that process predominantly

cellulosic materials, including animal manure, crop residues , and /or separated yard waste ,” and have identified biogas from such digesters as a feedstock for the production of cellulosic biofuel. B ased on EPA’s AgSTAR data , we have estimated that animal manure , crop residues and yard waste s represent over 9 0 % of the materials being processed in agricultural digesters. As discussed in section IV.A, EPA has determined that crop residues and yard wastes are predominantly

cellulosic. As to animal manure, we received in response to our proposal data indicating that animal manure is predominantl y cellulosic. 46 Based on these data, this material is on average composed of 25% cellulose, 21% hemicellulose, and 17% lignin. When divided by the organic fraction (minus the percent organic nitrogen, which does not convert to methane), we estimate that the material used to generate the biogas through anaerobic digestion from agricultural digesters is, on average, greater than 75% cellulosic. 47 Therefore, in this rule we are including biogas from agricultural digesters in the c ellulosic biofuel pathway in row Q of Table 1 to § 80.1426 . Note that digesters that primaril y process food wastes that cannot be demonstrated to be cellulosic in origin would fall in the general waste digester category discussed in the following section , and could be eligible to produce advanced biofuel instead of cellulosic biofuel . d. Biogas from Waste Digesters 46 Chen, S., et. al., 2003, Value Added Chemicals from Animal Manure . Pacific Northwest Laboratory, PNNL

– 14495. December 2003 47 See memo to the docket.*** E.O. 12866 Review

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Page **49** of **144** The current regulations identify biogas from manure digesters as an advanced biofuel. As described above, we have determined that animal manure is predominantly cellulosic, and therefore have determined that fuel made from biogas derived from agricultural digesters processing predominantly cellulosic feedstocks (such as animal manure, crop residues, and yard wastes) qualifies for cellulosic biof uel RI Ns. However, additional ty pes of renewable biomass may be processed in anaerobic waste digesters . For example, non - manure animal wastes and separated food wastes containing predominantl y s tarches and sugars may be processed in waste digesters that produce biogas. Based on our analy ses of biogas from other sources of anaerobic decomposition, described in Section 3, below, we are confident that fuel made from biogas from waste digesters will satisfy the 50% greenhouse gas reduction threshold for advanced biofuels. Therefore, we are including in Row T of Table 1 to § 80.1426, an advanced biofuel pathway for fuel made from biogas derived from waste digesters. 3 . Consideration of Lifecycle GHG Emissions Associated with Biogas Pathways Biogas , con sisting primarily of methane and carbon dioxide (with trace amounts of other gases ), is produced during the microbial mediated decomposition of organic wastes . In anaerobic environments with available organic material such as landfills, organic conversion to biogas proceeds slowly

over decades producing large amounts of methane. While methane is a potent greenhouse gas, it is also a combustible gas and valuable feedstock for the production of other fuels. Biogas collection sy stems are currently used at l andfills to recover and destroy methane b y flaring or to recover methane for energy generation or fuel production. Further, the natural anaerobic decomposition of organic wastes occurring in landfills can be exploited and*** E.O. 12866 Review

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Page **50** of **144** optimized in controlled systems ( such as waste digesters) to convert organic wastes to biogas for energy generation or fuel production. In this section we will discuss our GHG anal ys is of fuels made from waste derived biogas. a. Upstream GHG Anal ysis of Biogas as a Renewable Fuel or F uel Feedstock The March 2010 RFS final rule concluded that municipal solid waste has no agricultural or land use change GHG emissions associated with its production. Inthe NPRM, we proposed to add a new pathway

to Table 1 to § 80.1426 that used biogas f rom landfills to produce renewable electricity, CNG or LNG as transportation fuels. In the NPRM, we proposed that no new renewable feedstock production modeling was required, and that no GHG emissions would be attributed to feedstock production , which was consistent with the analy sis we had done for the landfill biogas pathway

included in the March 2010 RFS final rule. In addition, as described in more detail below, EPA believes that the GHG emissions assumptions for biogas generated at MSW landfills ap plies to biogas from municipal wastewater treatment facility digesters agricultural digesters, separated MSW digesters , and waste digesters. We received several comments supporting this approach for landfills, including one that cited consistency

with o ther Agency

anal ys is conducted for the annual Inventory of US GHG Emissions and Sinks, which assume s that MSW poses no land use or carbon stock changes . 48 However, we also received comment opposing this approach on the grounds that it would incentivize lan dfilling over other more GHG - beneficial waste disposal methods.

48 Cite commenter “ A Life - Cycle Assessment of Emissions and Sinks .”*** E.O. 12866 Review

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Page **51** of **144** Commenters did not provide new data or anal ys is that supported the assertion that allowing biogas - derived fuels from landfills to generate cellulosic rather than advanced RINs or adding new biogas - to - biofuel pathway s would significantly reduce recycling and reuse rates. If waste management methods were impacted b y use of biogas for transportation fuel, there could be indirect GHG emissions impacts. However, waste management policies are ty picall y controlled by state and local governments , and there are many unique factors that influence these decisions. We have not seen an y evidence or data to suggest that the RFS in general has had or will have a substantial impact on existing waste dispo sal practices across the U.S., and therefore we believe that there will not be significant GHG impacts associated with the biogas - based pathway s adopted in this rule. In fact, MSW landfilling rates over the past 50 years have continuously

decreased even as both recycling rates and biogas collection have increased significantl y. Over the past 10 years as both the per capita and overall MSW generation rates have decreased slightl y, the percentage of total trash diverted for recycling has increased. 49 Moreo ver, energy

from waste technologies, such as fuels derived from landfill biogas, can be viewed as a form of waste reuse itself. Incentivizing the use of biogas for fuel production establishes biogas recovery as an operating parameter to be activel y optimi zed

– promoting technology

that reduces fugitive emissions from landfills. Other commenters argued that we should begin our lifecycle GHG anal ys is at the point of waste generation, in which case our comparison would be to an alternative disposal method like recycling of waste paper, composting, or anaerobic digestion. This approach is not being employed because, as mentioned previously , we do not believe that the biogas pathway s adopted

49 INSERT CITE to EPA’s Annual Waste Trends Report.*** E.O. 12866 Review

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Page **52** of **144** today will have a substantial impact on existing waste disposal methods, and therefore no significant GHG impacts from waste disposal changes are anticipated as a result of this rule. EPA does not believe that allowing landfill biogas to generate cellulosic rather than advanced RINs will incentivize landfilling, and we are therefore not changing our assumptions regarding the upstream analy sis of feedstocks as part of this final rule. However, we will reevaluate our lifecycle GHG baseline assumptions in subsequent rule makings if new evidence and supporting data suggest that changes in the waste management sy stem are occurring as a result of these policies.

b. Flaring Baseline Justification Landfills currentl y treat their methane in one of several ways. Municipal solid waste (MSW) landfills are required by EPA re gulations to capture and control their biogas if they are designed to collect at least 2.5 million megagrams (Mg) and 2.5 million cubic meters of waste and emitting at least 50 Mg of non - methane organic compounds per ye ar . 50 These large, regulated landfills represent a small percentage of all landfills by number but are responsible for the majority

of biogas emissions from landfills. To comply with regulations, these landfills must at a mi nimum combust their biogas in a flare, converting the methane to carbon dioxide, a less potent GHG. They

may also use it for other purposes, including to generate electricity , in which case the electricity produced may displace electricity from other , higher GHG - emitting sources

50 Standards of Performance for New Stationary Sources and Guidelines for Control o f Existing Sources: Municipal Solid Waste Landfills, 61 FR 99 05, Federal Register Volume 61, Issue 49 ( March 12, 1996 ) .*** E.O. 12866 Review

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Page **53** of **144** (such as gas - fired power plants) once it enters the grid . 51 Many smaller, unregulated landfills do not collect their biogas, and this methane is “vented” to the atmosphere. Larger regulated landfills do collect the biogas and are assumed to have an average biogas collection efficiency of 75%. 52 In 2012, 14,089 Gg of methane was generated at all landfills (regulated and unregulated), of which 4,608 Gg (33%) was collected and combusted in gas - to - energy projects, 4,040 Gg (29%) was col lected and flared, and the rest was either uncollected or collected and vented. 53 For the landfill gas - to - electricity pathway , we proposed to use landfills that flare their biogas as providing the baseline GHG emissions for use in comparison to scenarios i nvolving production of electricity

from the landfill biogas. We chose this baseline because these landfills are the ones most likely

to convert to gas - to - energy projects, since they already have gas collection sy stems in place and are relativel y larger l andfills producing higher quantities of biogas. S mall unregulated landfills might be un able to generate enough biogas to justify the expense of collecting it for conversion to renewable fuels . However, if such small landfills were to capture and use thei r biogas in transportation fuels, th ere would be a significantly greater reduction in GHG emissions than would be occasioned by the shift from a flaring landfill to a gas - to - energy

project, since a flaring s ys tem represents a significant improvement in GHG emissions over a landfill that simply vents its methane. Therefore, if the shift from a flaring

51 Some facilities also use the biogas directly in boilers and other applications or purify the biogas to create CNG or LNG or inject it directly into natural gas pipelines. 52 Environmental Protection Agency. 2012. Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990 - 2010, Annex 3: Methodological Descriptions for Additional Source or Sink Categories. http://epa.gov/climatechange/emissions/usinventoryreport.html . As of December 2012, landfills produced 1913 MW of electricity based on figures from LMOP. This electricity would be almost entirely sold for use on the grid. From http://www.epa.gov/lmop/projects - candidates/index.html . Environmental Protection Agency, Landfill Methane Outreach Program. 2010. LFG Energy Project Development Handb ook: Chapter 2. Landfill Gas Modeling. http://epa.gov/lmop/publications - tools/handbook.html. 53 National Greenhouse Gas Emissions Data. 2011. Chapter 8: Waste. http://epa.gov/climatechange/Downloads/ghgemissions/US - GHG - Inventory - 2013 - Chapter - 8 - Waste.pdf*** E.O. 12866 Review

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Page **54** of **144** landfill to a gas - to - energy project results in a 50% reduction in GHG emissions, the shift of a venting landfill to a gas - to - energy project would result in GHG reductions substantially larger than 50% . Since landfills that currentl y have gas - to - energy projects in place at one point either replaced flaring with a gas - to - energy project or installed a gas - to - energy project as an alternati ve to the minimal compliance route of flaring, we propos ed to treat the emissions from these landfills compared to the same flaring baseline. We show lifecycle results calculated using alternative baselines and discuss our choice of baseline in more depth in a memo to the docket. 54 We received comments in support of our flaring baseline approach. We did not receive any comments that justified revising this baseline for the pathway in Table 1, therefore EPA is finalizing flaring as our baseline as propose d. We received comment on the use of alternative baselines for specific projects that we discuss below. Other commenters addressed the case of a landfill that is already generating renewable electricity from landfill gas. The commenters stated that w i th the increasing availability of plug in hy brid electric vehicles ( PHEVs ) and electric vehicles ( EVs ) , it is likely that at least some of th e electricity that is currently being generated by

these landfills is going to charge these vehicles. The comment er argued that if the landfill now signs contracts with these users, there will be no change in GHG emissions, and fuel from this landfill biogas will not achieve a 60% GHG reduction as required for cellulosic biofuels. Although EPA considered the po ssibil ity of differentiating between existing and new biogas projects , 55 we believe that such an approach would inappropriatel y punish “ earl y actors ” that have previousl y made the decision to install

54 “ Support for Cellulosic Determination for Waste Derived Biogas and Summary of Lifecycle Analysis Assumptions and Calculations for Biofuels Produced from Waste Derived Biogas,” which has been placed in docket EPA - HQ - 2014 - ####. 55 S ee memo to the docket , entit led XXX*** E.O. 12866 Review

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Page **55** of **144** gas - to - energy

equipment , either to replace flaring or as an alternative to installing flares . The fact that these facilities made the upgrade to gas - to - energy production prior to the availability of an RFS incentive to do so should not disqualify them. These facilities are already leading performers, and their f

uel should be credited with the GHG reductions occasioned by the move away from the flaring alternative even if that move happened in the past. T his approach is consistent with how we have treated the earl y implementation of advanced technologies for all biofuels producers in the past . We also believe that it is appropriate to use a flaring baseline when considering emissions related to biogas production from municipal wastewater treatment facility digesters , agricultural digesters, separated MSW digest ers , and waste digesters. Similar to landfills, biogas from these sources could be vented, flared or used for beneficial purposes. According to the American Biogas Council website, o f the 1,500 municipal wastewater treatment facility digesters that produ ce biogas, about 250 use the biogas; for the other 1,250, the biogas is flared. For agricultural digesters the alternative to beneficial use of the biogas is ty pically that the methane would have been emitted. S eparated MSW digesters process material that would have otherwise been sent to a landfill, and therefore we use that same flaring baseline for both of these s ys tems . In fact for most waste digesters, the alternative is that the waste would have gone to a landfill result ing in the same baseline. Furthermore, wastewater treatment facilit ies that don’t use digester biogas for process energy , fuel production, or electrical gen eration ty picall y flare the unused biogas. . Assuming that the biogas is flared generall y provides a conservat ive baseline. If sources that are using flaring will achieve a 60% GHG reduction when converting to electricity production, sources that are venting their methane will certainly do so as well.*** E.O. 12866 Review

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Page **56** of **144** c. L ifecycle GHG Anal ysis for Electricity from Bio gas The previous section discussed the baseline EPA has selected for use in comparison to the biogas pathway s under consideration. This section discusses the lifecycle GHG emissions anal ys es of the pathway s adopted today , which are then compared to the baseline to determine if the requisite GHG reductions are achieved. As part of the proposed rule, EPA prepared a proposed assessment of the lifecycle GHG emissions of renewable electricity produced from landfill biogas. In doing so, we examined two mai n factors. The first involved determining b y how much emissions at a landfill employing flaring would change upon installation of a gas - to - energy project. For this calculation, we used emission factors from the GREET model. 56 The second involved calculation of the decrease in GHG emissions caused by powering the gas blowers already in use with biogas - derived electricity produced on - site rather than grid electricity upon installation of a gas - to - energy project at the landfill. This calculation used data from the EPA L andfill Methane Outreach Project (LMOP). 57 For this analysis, we calculated how much electricity could be generated and how much could be delivered off - site to the consumer including consideration of on - site parasitic losses and on - site use. We used values from LMOP to provide estimates of the relative shares of different types of engines or turbines, the electricity generation efficiency, parasitic losses, energy use in collecting and preparing the biogas, and a value from the U.S. Energy In formation

56 Argonne National Laboratory (2011) Greenhouse Gases, Regulated Emissions, and Energy Use in Transportation Model (GREET), Version 1 2011, http://greet.es.anl.gov/. 57 EPA LMOP Data.*** E.O. 12866 Review

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Page **57** of **144** Agency to estimate distribution losses. Values used are discussed in more detail in a memo to the docket . 58 We calculated GHG emissions in two way s, per mmBtu electricity and per mmBtu fuel equivalent which accounted for the drivetrain efficie ncy of electric vehicles. In both cases we found that renewable electricity produced from landfill gas meets the 60% GHG emission reduction threshold required b y the CAA, and thus qualifies as a cellulosic biofuel. Compared with the gasoline that it woul d replace, these projects would be accompanied by an 87% reduction in GHG emissions when normalized per mmBtu electricity. Accounting for the improved efficiency

of EV drivetrains increases the GHG emissions reductions to 96%. We did not receive an y c omment on our lifecycle calculations and are therefore finalizing our determination that renewable electricity produced onsite from landfill gas meets the 60% reduction in GHG emissions required b y the CAA. This determination also applies to a pathway whe re the electricity

is generated off

- site . The main differences are removal of the credit associated with using biogas electricity in on - site blowers, and adding emissions associated with scrubbing the gas to pipeline quality , shipping it via pipeline, and removing it from the pipeline to make electricity . Removing the credit associated with use of biogas - derived electricity for onsite blowers still results in a 75% reduction in GHG emissions when normalized per mmBtu electricity, and the emissions associated with other aspects of a pathway involving off

- site electricity generation (e.g., scrubbing the gas to pipeline quality , shipping it via pipeline , removing it to make electricity) are not expected to change the result significantly . 58 “Support for Cellulosic Determination for Waste Derived Biogas and Summary of Lifecycle Analysis Assumptions and Calculations for Biofuels Produced from Waste Derived Biogas,” which has been placed in docket EPA - HQ - 2014 - ####.*** E.O. 12866 Review

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Page **58** of **144** We believe that GHG emissions related to electricity produced with biogas from municipal w astewater treatment facility digesters , agricultural digesters, separated MSW digesters , and waste digesters would be similar to those for landfill biogas production. The anal ys is fo r landfill biogas to electricity considered two main components: an increase in emissions due to converting from flaring to electricity generation and a credit associated with reduced grid electricity

purchased to run blowers. The change in emissions due to converting from flaring to electricity generation that we assumed for landfill biogas can be considered the same for other sources of biogas . In all cases the emissions are based on the properties of the biogas itself

, and its combustion products, whic h are independent of the biogas source. For other biogas sources there may be less need for purchased grid electricity to run blowers since other biogas sources are generally less distributed than gas collection at landfills. However, even if the credit associated with the reduction in purchased grid electricity for blowers is not considered for municipal w astewater treatment facility digesters , agricultural digesters, separated MSW digesters and waste digesters, compared with the gasoline baseline GHG em issions of 98 kg CO 2 - eq/mmBtu, these projects would still be accompanied by a 75% reduction in GHG emissions when normalized per mmBtu electricity. The calculated reduction would be even greater if we accounted for the improved efficiency of EV drivetrain s. Therefore, we have determined that pathways involving electricity production from biogas derived from these other sources also meet the 60% lifecycle GHG reduction threshold and can be qualified as cellulosic biofuel (assuming all other definitional an d regulatory requirements are satisfied). It is important to note that RI

Ns may only be generated for electricity from biogas that can be tracked to use in the transportation sector, such as b y an electric vehicle.*** E.O. 12866 Review

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Page **59** of **144** 4 . Alternative Biogas Options and Comm ents

a. Alternative Baseline Approaches We received comments in support of our flaring baseline approach. However, we also received several comments arguing for alternative approaches. Several commenters wanted EPA to allow parties to use a non - flaring baseline where it can be shown that the landfill providing biogas is not required to have a flare or other methane controls. For the basis of our electricity pathway in Table 1, EPA is not changing the baseline comparison of flaring for the reasons stated above, that on average it is the baseline landfill condition that would be replaced. In addition, EPA had determined that the biogas to energy pathway s evaluated are all calculated to achieve at least a 60% reduction in GHG emissions required b y the CAA when a change from landfill flaring is assumed. Assuming venting instead of flaring as a baseline landfill condition would improve the calculated benefits of the projects, but would not change the applicable RFS GHG threshold determination. Accordingl y, there is no purpose served b y these comments for purposes of today ’s rule. b. Additional Comments on L ifecycle Anal ys is for Renewable Electricity In addition to the comments discussed above, we also received comment suggesting that we include electricity from biomass sources such as woody biomass as a pathway in Table 1 to § 80.1426. However, evaluation of the lifecycle GHG emissions associated with generating electricity from woody biomass or other biomass sources would involve substantially differ ent considerations from our anal ys is of electricity production from biogas sources, and is beyond the*** E.O. 12866 Review

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Page **60** of **144** scope of this rule. Therefore EPA is not finalizing an electricity pathway from other ty

pes of biomass at this time. We also received comments on addin g pathway s for biogas to transportation fuels other than CNG/L NG and electricity . These other fuel ty pes included dimethyl ether (DME) and hydrogen (H). However, assessing emissions associated with these production processes is also beyond the scope of this rule . We received comment seeking clarification of whether electricity from landfill biogas or other approved biogas sources that was used in trains would qualify for RIN generation. EPA has determined that electricity used in trains is not a “ transp ortation fuel” as defined in the Clean Air Act . Electricity

from RFS - approved biogas sources that is used in trains does not “replace or reduce the use of fossil fuel present in transportation fuel”, and therefore does not meet the statutory definition of a “ renewable fuel ” eligible for RI N generation in the RFS program. Commenters also asked whether electricity from landfill biogas or other approved biogas sources that was used to compress natural gas would be eligible for RIN generation, if the natural gas was used for transportation purposes. EPA has determined that electricity used to compress natural gas does not qualify for RIN generation , since the electricity will not reduce the amount of fossil fuel present in the natural gas, which is the transportation fuel in this situation. **C. Regulatory Amendments Related to Biogas** Prior to this rule making , an approved fuel pathway in Table 1 to § 80.1426 allow ed biogas from landfill s , manure digesters or sewage waste treatment plants to qualif y as an*** E.O. 12866 Review

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Page **61** of **144** advanced biofuel . W e have received questions related to some of the details of this pathway that are also relevant to the biogas - related pathway s approved today . The questions include the following : 1 ) what company along the production chain of b iogas from generation to end user is considered the producer that qualifies to register under this pathway and generate RINs, and 2 ) what are the contract requirements to track the biogas from generation to end use. W e proposed revising and adding new co ntracting, registration, reporting and recordkeeping requirements at locations along the production chain from biogas generation to finished transportation fuel use . W e also proposed to specify which company

along the production chain is considered the “producer” and eligible to generate RINs under the RFS program. In the following sections, we will detail the changes being finalized . 1 . Changes Applicable to Renewable Electricity from Biogas Sources In the NPRM, EPA requested comment on a number of potential changes intended to clarify the process for generating RINs for renewable electricity. We received a number of comments on these proposed changes, but have decided that in general the existing regulations are sufficient for present purposes and onl y minor clarifications are warranted at this time. To the extent that these modifications do not resolve all questions, EPA’s intent is to address them through a combination of guidance documents and future rulemaking.

a. Registration and RIN Gen eration Requirements*** E.O. 12866 Review

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Page **62** of **144** Section 80.1426 paragraphs (f)(10) and (11) describe the requirements for generating RI Ns for renewable electricity and biogas which are either introduced into a dedicated renewable distribution system ( § 80.1426(f)(10)) or introduce d into a commercial distribution system ( § 80.1426(f)(11)). EPA requested comment on the provisions and suggestions for alternative requirements. Several commenters provided background information related to actual renewable electricity generation and transportation use to aid in the development of more detailed provisions. This information included specific detail on how individual companies are currently using biogas to generate electricity for transportation purposes, and what these companies are doi ng to compl y with state regulatory programs. These comments illustrated a number of significant challenges faced by parties wishing to generate biogas electricity RI Ns under the RFS program. Most commenters agreed that the electricity distribution sys tem is complex, and that detailed and clear regulatory requirements specific to renewable electricity are needed. EPA agrees that the electricity generation s ys tem is complex, and EPA intends to take more time to evaluate the options and their implications . We believe that the regulatory changes made in this final rulemaking to section 80.1426 paragraphs (f)(10) and (f)(11) should help address some of those challenges. EPA and stakeholders will benefit from additional experience in implementing the current provisions before adopting significant modifications. b. Distribution and Tracking Requirements*** E.O. 12866 Review

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Page **63** of **144** Tracking and verifying the production and use of the renewable electricity are of particular concern. Each state regulates electricity individually and so there is a wide variety of sy stems and requirements that must be accounted for in establishing a robust sy stem for electricity accounting. In addition, several states have renewable portfolio standards and “renewable electricity 59 credit” (REC) program s. Further, most states do not allow private electricity generators to sell electricity directly to consumers. Therefore we cannot rely solely on written contracts for tracking of renewable electricity to transportation use. An alternative tracking and verification sy stem must be established. The alternative adopted in this final rule is described in the next section. It was suggested b y commenters that EPA leverage existing state renewable electricity portfolio programs to track and validate RINs g enerated for RFS - qualified renewable electricity. These programs rel y on defined environmental attributes which can be owned and transferred independentl y of the actual electricity. Ownership of these environmental attributes allows regulated parties to demonstrate compliance with the renewable electricity portfolio programs. Given the variety of renewable electricity programs managed b y a multitude of states, this does not seem workable for the RFS program . In addition, EPA does not intend for the RFS to interfere with existing state programs. Therefore we have made the decision to match generation to use, and not require the purchase or definition of related environmental attributes. This does not preclude RIN generators from participating in state r enewable electricity programs or from using that information to support their RFS registration and reporting documentation.

59 When referring to various state “renewable electricity” programs in this preamble, we are u sing that term as defined in the state programs, and do not intend to suggest that the electricity in question necessarily satisfies the RFS regulatory definition of “renewable electricity.”*** E.O. 12866 Review

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Page **64** of **144** 2 . Regulatory Changes Applicable to all Biogas Related Pathways As discussed above, we have had man y inquiries related to the “biogas” pathway , specificall y regarding contract requirements for tracking the biogas through the distribution sy stem to end use, and regarding what compan y along the production chain is considered the “producer” and eligible to generate RINs under the RFS program. In this rulemaking, we have revised the documentation requirements slightly , to better track the biogas as it moves into and out of the distribution system and to document the final use as a transportation fuel. P rovisions related to registration , reporting and recordkeeping were revised as well . These provisions allow for the use of signed affidavits, when written contracts are not available, to prove the use or sale of renewable electricity and renewable CNG/ LNG for transportation purposes. It is assumed that these affidavits would be signed b y fleet managers or vehicle operators, verifying the use of the renewable transportation fuel. These affidavits would then be matched, b y the registered fuel producer, to the delivery

or sale of an equivalent amount of qualifying renewable electricity or renewable CNG/L

NG. While it is impossible to track the specific molecules or electrons, it must be theoretically

feasible that the fuel produced can reach the vehicle using it. Examples of connected grid sy stems include, but are not limited to, commercial natural gas distribution sy stems, dedicated private fuel distribution sy stems, or transmission grids as defined by the North American Electrical Reliability Corporation (NERC) regions. These amended requirements are applicable to all pathway s related to biogas .

We proposed that the “producer” of renewable CNG/LNG be the company that compresses or liquefies the gas and distributes the CNG/L NG for transportation fuel, and for*** E.O. 12866 Review

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Page **65** of **144** renewable el ectricity, we proposed that the “producer” would be the company that distributes the electricity for use as transportation fuel. Numerous commenters indicated that limiting RI N generation to the CNG/LNG or electricity distributor would revoke current RI N g eneration ability from those who have invested significant resources in develop ing biogas projects . Some commenters also stated that the company first injecting the pipeline quality biogas into the grid would be intimately

familiar with the responsibilitie s in tracking distribution, and should be eligible to act as the RIN generator. Given the complexities of the situation involving the production, transportation and use of biogas - derived fuels, we are not finalizing the definition of “producer” for renewa

ble CNG/L

NG and renewable electricity. EPA believes a more appropriate approach at this time is to ex amine registrations on a case b y case basis in the short term, and to learn from this experience prior to issuing any final rule addressing the subject . The process ing and distribution train from raw biogas to final transportation fuel use can be complex, and may

include many

companies and processing steps from the point when the raw biogas is withdrawn from its source (such as landfills, waste digesters, wastewater treatment plants), to where it is processed , converted into biofuel and distributed to consumers. In some cases the fuel may

be cleaned at a biogas scrubbing facility to pipeline quality

specifications for distribution, and then withdrawn from the commercial pipeline to be processed further at another production facility into renewable CNG/LNG or renewable electricity. The company registering to generate RINs is responsible for providing all the required information and supporting documentation in their registration, and for satisfying reporting and recordkeeping requirements to track and verify

the movement of gas from point of extraction of the raw biogas from its original source, through all the processing steps and distribution steps in betw een, to the last step*** E.O. 12866 Review

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Page **66** of **144** where the actual fuel is used for transportation purposes. In the engineering review report required for registration, the producer must include documentation that the professional engineer performed site visits at each biogas produc tion facility covered b y the producer’s registration that is located prior to the point of injection into a common carrier pipeline, or in the case of on - site distribution, prior to the point of distribution for transportation usage. The third - party engin eer must also review and verify all related supporting documents such as design documents, calculations, regulatory

permits, and contracts between facilities that track the raw biogas from the point of withdrawal from its source, the various injection/with draw points into the distribution pipeline, the various production facilities, and the final step for use as transportation fuel. EPA does not specifically define where the producer must lie on the value chain , as any compan y in a position to oversee the entire process and provide all necessary documentation may act as the RIN generator . T hese requirements will help ensure that the company registering to generate RINs will only generate RINs for fuel that is fully compliant with all regulatory requirement s . The registration, reporting and recordkeeping requirements are in § 80.1426(f), 80.1450, and 80.1454 in this rulemaking. The structure of § 80.1426(f) paragraphs (10) and (11) was changed to more clearl y address RIN generation requirements for electricity and CNG/LNG derived from biogas. Paragraph (10) lists requirements for fuels that are not introduced into a commercial distribution system; subparagraph (i) addresses electricity requirements and subparagraph (ii) addresses CNG/LNG require ments. Subparagraph (iii) is an additional requirement for producers co - firing a combination of fuels to generate electricity . Similarly ,*** E.O. 12866 Review

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Page **67** of **144** paragraph (11) lists requirements for fuels that are introduced into a commercial distribution sy stem, with the same organization as paragraph (10). Comments to the NPRM raised the concern that contracts are not alway s feasible between the parties producing and using the fuel. In some cases, smart metering is available to provide very

detailed documentation of fuel dis tribution and use. Therefore EPA has added signed affidavits and an option for other EPA - approved documentation to demonstrate the transfer of qualifying fuel use d for transportation. EPA will provide guidance on other documentation that may

be considered acceptable. The changes regarding the documentation requirements for distribution and use of the biogas , electricity, and CNG/LNG is located in § 80.1426 and § 80.1454. **D. Clarification of the Definition of “Crop Residue” and Clarification of Feedstocks that EPA Considers Crop Residues**  1. Clarification of the Definition of “Crop Residue” In today ’s FRM, EPA is amending “crop residu e” in the RFS regulations to more clearl y describe the characteristics of products that should fall within the definition. 60 The final amendments are identical to those proposed. EPA proposed in the NPRM to include this amendment to provide more detailed guidance regarding the ty pes of feedstocks that EPA considers crop residues. In our preexisting regulations, “ c rop residue” “ is the biomass left over 60 See § 80.1401.*** E.O. 12866 Review

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Page **68** of **144** from the harvesting or processing of planted crops from existing agricultural land and any biomass remove d from existing agricultural land that facilitates crop management (including biomass removed from such lands in relation to invasive species control or fire management), whether or not the biomass includes any portion of a crop or crop plant. ” 61 In the NPRM, we proposed to amend the definition to specify that b iomass is considered crop residue only

if the use of that biomass for the production of renewable fuel has no significant impact on demand for the feedstock crop, products produced from that feeds tock crop, and all substitutes for the crop and its products including the residue, nor any other impact that would result in a significant increase in direct or indirect GHG emissions . We also noted that crop residue must come from crop production or pro cessing for some other primary purpose (e.g., refined sugar, corn starch ethanol) or be removed to facilitate crop management , such that the crop residue is not the reason the crop was planted. The residue must also come from existing agricultural land, the exact definition of which is laid out in our current regulations that define “renewable biomass . ” 62 We stated f urther that the residue should generall y not have a significant market in its own right, to the extent that removing it from that market to produce biofuels instead will result in increased GHG emissions. We sought comment on this revision to the crop residue definition , specifically invit ing comments regarding what ought to constitute a “significant” increase or decrease in GHG emissions in the context of this definition.

61 Ibid. 62 Ibid.*** E.O. 12866 Review

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Page **69** of **144** We received significant comment supporting and opposing this change. At least one commenter who supported the change also stated that EPA should amend the definition of crop residues to more explicitly exclude non - cellulo sic components of crop residues. 63 We address the question of the cellulosic content of feedstocks in Section IV.A of this rulemaking. In formation available to EPA indicates that crop residue as a class more than satisfies the 75% cellulosic content thres hold we have adopted today to identify feedstocks which are eligible to generate cellulosic biofuel RI Ns for the entire produced volume. 64 For this reason, we are not modifying the definition as suggested by the commenter. Those opposed to the proposed change were uniformly clear that they

supported the crop residue pathway

in general. 65 Opposition stemmed from concerns that our proposed clarification would be overl y limiting and would exclude feedstocks that rightfull y ought to be considered crop residu es under the RFS. Several commenters stated that very few products have no market value and that most will find some sort of beneficial use. These commenters expressed concern over our statement in the preamble of the NPRM that, in order to meet the definition of crop residue, a crop product must generall y not have a significant market in its own right. In their estimation, the fact that most crop products have a non - zero market value might cause them to be disqualified from the crop residue pathway . 66 E PA acknowledges that man y crop residues have some non - zero market value. We also acknowledge that most could find some sort of beneficial use, albeit a low value use in many cases. This in turn may

have some non - zero impact on the 63 Comments submitted by AFPM/AP I (EPA - HQ - OAR - 2012 - 0401 - 0128). 64 See Memorandum to the Docket, “Cellulosic Content of Various Feedstocks,” Docket EPA - HQ - OAR - 2012 - 0401. 65 See, for example, comments submitted by the Renewable Fuels Association, (EPA - HQ - OAR - 2012 - 0401 - 0123), the National Co rn Growers Association (EPA - HQ - OAR - 2012 - 0401 - 0065), and Grow th Energy (EPA - HQ - OAR 2012 - 0401 - 0173). 66 Here as well, several commenters expressed similar opinions. See, for example, comments submitted by the Renewable Fuels Association, (EPA - HQ - OAR - 2012 - 040 1 - 0123).*** E.O. 12866 Review

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Page **70** of **144** total revenue a farmer receives for a crop. However, we do not believe that a crop product must necessarily

be completely

useless in order to qualify under the crop residue pathway . Rather, as indicated in our amendment to the definition of crop residue and our statements in the NPRM preamble, the use of the crop product to produce renewable fuel should not significantl y impact demand for the feedstock crop and associated products and should not lead to a significant increase in GHG emissions. It is our judgment that a crop product need not be completel y devoid of value to meet these criteria , though there should be a notable difference in the value of the primary

product and the value of the residue . Other commenters stated that the use of a crop residue as biofuel feedstock gives it value and that this use itself may increase the total value of the primary crop. 67 Several commenters expressed concern that this approach may create a chilling effect on investment in crop residue based fuels. 68 EPA acknowledges the possibility that, if used as biofuel feedstock in large enough quantities, demand for a crop product may begin to affect the value of the primary crop. EPA noted in the NPRM that , if significant f acts change over time, it is possible that EPA would modify its assessme nt regarding whether particular crop products meet the definition of crop residue. However, if EPA were to revise our assumptions or analy sis concerning the qualification of certain crop products as crop residue, this change would be done after public not ice and an opportunity for comment. Therefore, industry would have adequate opportunity to provide data to EPA prior to any potential chang es to our interpretation regarding any of the feedstocks listed in Table IV.D.3 - 1 . It is important to note that even if a particular feedstock evolved to the point where it had a significant market as a commodity and EPA were required to 67 See comments submitted by the National Corn Growers Association (EPA - HQ - OAR - 2012 - 0401 - 0065) and the Iowa Corn Growers Association (EPA - HQ - OAR - 2012 - 0401 - 0124), among others. 68 See, for example, comments submitted by the American Coalition for Eth anol ( EPA - HQ - OAR - 2012 - 0401 - 0147 ).*** E.O. 12866 Review

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Page **71** of **144** revisit the lifecycle GHG emissions analy sis , this feedstock would most likely still meet the definition of renewable biomass. EPA wo uld therefore be able to establish a new pathway for the feedstock upon completion of a lifecycle GHG anal ys is , even if the feedstock no longer fit under the crop residue pathway . In sum, we do not believe that the possibility of EPA reconsidering past L C A determinations , including those for crop residue pathway s , should create any undue uncertainty for the private sector, nor that the possibility of reconsideration will materially

affect production of cellulosic renewable fuels under pathway s allowing for the use of crop residue as a feedstock. Most commenters who opposed the change also argued that the key consideration ought to be whether the residue meets the 60 percent GHG reduction threshold for establishing a pathway to generate RINs with a D code o f 3 and/or a D code of 7 and that, as long as a crop product meets this threshold, it ought to be considered a crop residue. 69 EPA believes that the term crop residue should be defined in a manner that ensures that materials within the definition satisfy the 60 percent GHG reduction threshold. This is one of the reasons why EPA is finalizing the proposed amended definition. Materials that do not meet the definition of crop residue, and do not qualify as other feedstocks listed in Table 1, may be independ entl y evaluated to determine if they

satisfy the 60 percent GHG reduction threshold, or other thresholds applicable to other types of biofuels. Parties questioning whether an agricultural product meets the current definition of crop residue must determine if the product is “left over.” Our proposed and final definitional change is intended to clarify what this means.

69 See, for example, comments submitted by Novozymes North America, Inc. ( EPA - HQ - OAR - 2012 - 0401 - 0088 ) and Grow th Energy (EPA - HQ - OAR - 2012 - 0401 - 0173).*** E.O. 12866 Review

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Page **72** of **144** However, the current regulations do not provide stakeholders with much guidance regarding what EPA considers to be the meaning of “left ove r . ” Th e current definition has created significant confusion and uncertainty among stakeholders. Our goal in clarifying the definition of crop residue is to more transparentl y define the criteria that must be met for a feedstock to qualify

under the exis ting crop residue pathway . Stakeholders who are considering whether or not to use a given feedstock will be able to consider these criteria, rather than rel yi ng on the current regulatory

text that does not specify the meaning of “left over . ” Those oppose d to the amendment to the definition of crop residue also generall y argued that the word “significant” was used vaguel y in our proposed clarification, and that this might create undue hurdles for producers seeking to use low - GHG crop products under the cro p residue pathway . 70 As stated previously , EPA sought comment on the proposed change and specificall y regarding what ought to constitute a “significant” change in GHG emissions. Commenters who opposed th e proposed clarification declined to offer alternati ve interpretations of the terms “left over” and “significant . ” However , several of these commenters did state that EPA’s proposal did not sufficiently

describe what might constitute a “significant increase , ” a “significant market , ” or a “significant impac t . ” 71 It is true that EPA did not provide specific criteria for meeting these significance thresholds. However, in our NPRM discussion concerning corn kernel fiber, we discuss ed this question contextually . In that discussion, we described why we believe that corn kernel fiber

70 See, for example, comments submitted by the National Biodiesel Board ( EPA - HQ - OAR - 2012 - 0401 - 0 166) and Novozymes North America Inc. ( EPA - HQ - OAR - 2012 - 0401 - 0088 ). 71 See, for example, comments submitted by the National Biodiesel Board ( EPA - HQ - OAR - 2012 - 0401 - 0 166) and Novozymes North America Inc. ( EPA - HQ - OAR - 2012 - 0401 - 0088 ).*** E.O. 12866 Review

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Page **73** of **144** would not cause a significant increase in demand for corn, why we believe that corn kernel fiber does not have a significant market in its own right, and why its removal from distillers’ grains to produce biofuel will not have a significant impact on direct or indirect GHG emissions. Stakeholders who wish to better understand how to evaluate whether other feedstocks meet the definition of crop residue should consult that discussion and the comparable discussion in S ection IV. D. 2 of this preamble . Few commenters offered opinions regarding what might constitute a “significant market” for a crop product. However, comments submitted by the Iogen Corporation did provide one potential framework for understanding when a crop product might be considered to have a significant m arket . In their comments, Iogen stated that “ EPA should not consider potential for significant crop shifting unless the farmer revenue per acre for raw unprocessed crop residue (i.e., before fees for collection, bal ing, stacking, transport, etc.) is more than 15 [percent] of the grain crop revenue per acre. We believe the volatility of the grain crop revenues is much larger than 15 [percent] of the grain price, and that the incremental revenue will not affect crop pl anting decisions. ” 72 EPA has not utilized this methodology to identify which crop products we consider crop residues for the purposes of this final rulemaking. We acknowledge that this ty pe of methodology

could potentially be useful for evaluating whethe r future feedstocks meet our definition of crop residue, including non - grain crops . While we have not performed sufficient anal ys is to determine whether it is appropriate to adopt such an approach today , we may

72 Comment s submitted by Iogen Corporation ( EPA - HQ - OAR - 2012 - 0401 - 0135 ).*** E.O. 12866 Review

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Page **74** of **144** reconsider it in the future . Regardless , we do believe that it provides a useful consideration for stakeholders who are unsure whether a crop product might qualify as crop residue. In Table IV.D.3 - 1 of this preamble , EPA identifies several crop product s that we consider crop residues. In additio n, we have provided greater transparency to stakeholders regarding the criteria for qualifying as a crop residue under the RFS in this preamble and in the clarified definition of crop residue. As a general principle, if a product meets the regulatory defi nition of crop residue as described above and is similar to a feedstock that we identify as a crop residue in Table IV.D.3 - 1 , then it is likely that EPA would consider it as qualifying as a crop res idue. Conversel y, if it is not clear that a product meets the regulatory definition of crop residue as described above, or if the feedstock is not similar to any of the feedstocks identified in Table IV .D.3 - 1 , then there is greater uncertainty that it will qualify . 73 EPA acknowledges that it may not always be straightforward for a stakeholder to determine for themselves whether a crop product is likely to qualify

under the crop residue pathway , even with the guidance provided in this preamble and in the revised definition. In light of this , and to promote accurate identification of feedstocks that do and do not qualify as crop residues, EPA is implementing additional registration, recordkeeping, and reporting requirements for producers intending to use crop residue as a feedstock. These additional requirements w ill help to ensure that producers of renewable fuel do not inadvertently attempt to generate RINs

73 It is important to keep in mind that not qualifying under the crop residue pathway does not in any way exclude fuel produced from a given feedstock from qualifying to generate RINs with a D co de of 3 or a D code of 7 more generally. It only means that a new pathway would need to be established, were EPA to find that the fuel produced from that feedstock meets the 60 percent threshold.*** E.O. 12866 Review

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Page **75** of **144** under a crop residue pathway utilizing a feedstock that EPA does not consider to be a crop residue. See s ection IV. D. 4 of this final rulemaking for more details on these requirements. 2. Consideration of Corn Kernel Fiber as a Crop Residue We also propose d in the NPRM that corn kernel fiber be considered a crop residue . C orn kernel fiber has not been specificall y mentioned as a type of crop residue in any pr evious RFS rulemaking . However, EPA has received several requests to consider corn kernel fiber to be a crop residue. Because it had not been considered a crop residue previously, EPA conducted an evaluat ion that assessed whether corn kernel fiber should be considered a crop residue. This anal ys is focus es on whether corn kernel fiber can be considered “left over from the harvesting or processing of planted crops” , whether it has “no significant impacts on demand for the feedstock crop, products produced from that crop, or an y substitutes for the crop and its products” no r “ an y other impact that would result in a significant increase in direct or indirect GHG emissions . ” We requested comment on our proposed anal ys is. We received significant comment suppo rting our anal ys is and our proposal that corn kernel fiber should be considered a crop residue. 74 We did not receive an y comments opposing our anal ys is or our conclusions. Accordingl y, we have decided based on the assumptions, facts and anal ys is described below that corn kernel fiber should be considered crop residue as proposed. Should relevant facts described in our anal ys is change, a re - evaluation of the issue may be warranted. Our anal ys is of corn kernel fiber can serve as one of man y possible illustrative example s of how crop products can be 74 Several commenters expressed extremely similar opinions o n this point. But see, for example, comments submitted by the Renewable Fuels Association, (EPA - HQ - OAR - 2012 - 0401 - 0123), the National Corn Growers Association (EPA - HQ - OAR - 2012 - 0401 - 0065), and Grow th Energy (EPA - HQ - OAR - 2012 - 0401 - 0173).*** E.O. 12866 Review

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Page **7 6**  of **144** evaluated for qualification as crop residues , in addition to our previous considerations of other feedstocks that we consider to be crop residue , such as corn stover . 75

a. Analy sis of Corn Kernel Fiber as a Crop Res idue The amended definition of crop residue requires us to consider any potential “ significant impact on demand for the feedstock crop, products produced from that feedstock crop, and all substitutes fo r the crop and its products, [and] any other impact that would result in a significant increase in direct or indirect GHG emissions. ” To determine whether the use of corn kernel fiber to produce renewable fuel would lead to increased direct or indirect GHG emissions stemming from an y of these sources , EPA c onducted a detailed assessment of the two major potential sources of emissions from this feedstock, namel y effects on feed markets and effects on demand for corn. In our anal yt ical judgment, any impacts on corn, corn products, or substitutes for corn or c orn products would come from impacts on the feed market for dried distillers grains (DDG) or from some other impact on overall demand for corn. We did not identify any other potential sources of significant increased GHG emissions in our proposed anal ys is , and no commenter suggested that an y such source might exist. Therefore, we are confident that the anal ys is we have conducted below adequatel y addresses all aspects of the definition of crop residue, excepting questions regarding the source of the biomas s, which will be evaluated in the context of each individual producer registration pursuant to 40 CFR 80.1450. P roducers acquire corn kernel fiber for ethanol feedstock as a part of the whole corn feedstock stream entering into a corn starch ethanol plant . This fiber stream may then be 75 For our analysis of corn stover in the context of the crop residue pathway, see 75 FR 14670, March 26, 2010.*** E.O. 12866 Review

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Page **77** of **144** accessed for ethanol production in one of two general way s. One option is for p roducers to extract it from matter that would otherwise be converted to DDG during the dry mill corn ethanol production process . This step can be performed either before or after that matter has been separated from the corn starch ethanol. In either case, the corn fiber is processed into ethanol via a separate stream from corn starch ethanol production. A s econd option is for producers to acce ss and convert the fiber in situ along with the corn starch that is converted to ethanol . In order to meet the definition of a crop residue, the source of corn kernel fiber must be a corn starch ethanol plant that is procuring whole kernels of corn for so me other primary purpose (e. g., corn starch ethanol production) . An ethanol producer utilizing corn kernel fiber as a feedstock cannot purchase whole corn for the primary purpose of generating corn fiber ethanol and still qualify their feedstock as crop r esidue. Consequently , this anal ysis relied significantly on the assessment of corn starch ethanol derived DDG that was conducted for the March 2010 RFS final rule, adjusting the anal ys is to account for the extraction of fiber from this product. 76 The an al ys is also drew substantially on the available scientific literature on low fiber DDG (LF - DDG), as well as the expertise of the U.S. Department of Agriculture. Potential producers also submitted important data that helped EPA evaluate the lifecycle GHG e missions of corn kernel fiber . It is important to note that all animal feed products must be approved b y the U.S. Food and Drug Administration (FDA) before they can be sold in the United States. EPA’s anal ys is makes observations and draws conclusions abo ut the characteristics and likely uses of LF - DDG based on the available literature regarding LF - DDG that has been fed to livestock in research 76 See 75 FR 14670, March 26, 2010*** E.O. 12866 Review

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Page **78** of **144** settings. However, at this time the FDA has not approved LF - DDG for use in commercial animal feed. Nothing in E PA’s anal ys is should be construed as an official federal government position regarding the approval or disapproval of LF - DDG as an animal feed. Only FDA is authorized to make that determination. Our anal ys is proceeds from the assumption that producers of LF - DDG will be able to gain FDA approval for these feed products and that they will do so before commencing production and sale of this feed product. If however FDA does not approve LF - DDG as an animal feed, there will be implications for the LCA of corn kernel fiber, and EPA will revisit its determination. EPA found that extracting the fiber from corn matter used to produce standard DDG would not have a significant effect on feed markets. Processors who extract the fiber from corn produce a feed produ ct known as LF - DDG, as opposed to standard DDG , which retains the fiber. The scientific literature on LF - DDG animal nutrition has found that this product has at least equal, and perhaps even slightly superior, nutritional value for swine and poultry compared to standard DDG. 77 This means that, even though the phy sical volume of the LF - DDG produced by ethanol plants using corn kernel fiber extraction technology will be somewhat smaller than the volume of DDG produced by plants not extracting corn kernel fib er , the nutritional content of LF - DDG for swine and poultry will be equivalent to or greater than DDG.

77 See, e.g. , Kim, E.J., C.M. Parsons, R. Srinivasan, and V. Singh. 2010 . Nutritional composition, nitrogen corrected true metaboli

zable energy, and amino acid digestibilities of new corn distillers dried grains with solubles produced by new fractionation processes. Poultry Science 89, p. 44, available on the docket for this rulemaking as EPA - HQ - OAR - 2012 - 0401 - 0002 . See also addition al studies cited within Kim et al 2010.*** E.O. 12866 Review

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Page **79** of **144** Conversel y, LF - DD G is an inferior feed for cattle compared to standard DDG, since ruminants benefit from ingesting corn fiber in DDG. 78 Therefore, EPA expects swine and poultry producers to absorb the supply of LF - DDG, while the cattle and dairy industry will continue to consume standard DDG. With this dynamic in place, fiber extraction from DDG should not significantly

affect feed markets, since there will be no reduction in the overall supply of DDG in terms of nutritional content nor will there be any impact on aggregate demand for other animal feed sources. If enough corn ethanol producers adopt fiber extraction technology , LF - DDG could saturate sw ine and poultry demand and spill over into dairy and cattle feed markets. If a situation arises where LF - DDG begin to replace standard DDG in dairy and/or cattle markets, this could lead to an increase in aggregate feed demand, most likely in the form of increased demand for fiber supplements in dairy and cattle feed. This theoreticall y could cause an increase in GHG emissions. However, we do not expect this to occur. If swine and poultry demand for LF - DDG becomes saturated, demand for standard DDG in the cattle and dairy industries should create sufficient market incentives for the remaining corn starch ethanol producers to decide against adopting corn fiber ethanol production. EPA believes this will prevent a situation where there is insufficient supp ly of standard DDG in the cattle and dairy industries. However, as noted above, if significant facts change, it may be appropriate for EPA to reexamine corn kernel fiber as a crop residue in the future.

78 See Shurson, G.C. 2006. The Value of High -Protein Distillers Coproducts in Swine Feeds . Distillers Grains Quarterly , First Quarter, p. 22, available on the docket for this rulemaking as EPA - HQ - OAR - 2012 - 0401 - 0003 .*** E.O. 12866 Review

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Page **80** of **144** EPA’s anal ys is indicates that producing ethanol fr om corn kernel fiber is unlikely to increase overall demand for corn , in addition to having no significant impact on feed markets. It is our judgment, based on the anal ys is above, that the primary purpose of procuring whole corn for processing in a corn s tarch ethanol plant is to produce corn starch ethanol , since more than 90 percent of the ethanol produced will be from the starch . The plant would most likely procure that same quantity

of whole corn regardless of whether they were converting the fiber i nto ethanol or sending it to some other end use. The diversion of corn kernel fiber from the DDG stream to an ethanol production stream will not materially affect the value of the feed products produced b y a corn starch ethanol plant per bushel of corn processed . Because of this, there will be no significant incentive for the plant that is producing ethanol from corn kernel fiber to procure more or less corn than they would if they

were selling the fiber as part of their DDG product. We can find no evide nce to support a claim that production of ethanol from corn kernel fiber has an y significant impact on demand for corn, products produced from corn , or the substitutes for corn and its products. Further, we find that if corn kernel fiber is not used to produce ethanol, it will be left over from the corn starch ethanol production process, because its presence or absence in DDG products do es not materially impact the value of those DDGs or the overall market for DDGs and feed products . Finally , we were unab le to identify an y other potentially

significant impacts associated with utilizing corn kernel fiber to produce renewable fuel that might lead t o significant GHG emissions, nor were any such impacts identified during public notice and comment. Based on th e s e factors , we find that utilizing corn kernel fiber to produce renewable fuel would have no significant impacts on GHG emissions. These findings support a determination that corn kernel fiber meet s the definition of a crop residue . Therefore ,*** E.O. 12866 Review

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Page **81** of **144** corn kern el fiber may

be used as a feedstock in those pathway s in Table 1 to § 80.1426 that specify crop residue as a feedstock. b. Treatment of Corn Starch that Adheres to Corn Kernel Fiber After Separation from DDG EPA sought comment on whether the definition of c rop residue should be amended to explicitly exclude the corn starch component , since some corn starch may still adhere to the corn kernel after separation . Additionally , EPA invited comment on how RINs should be allocated for fuel derived from corn fiber , including comment on the sufficiency o f current RFS regulations with regards to the assignment of RINs to batches of corn starch ethanol and corn kernel fiber ethanol produced via consolidated bioprocessing and whether producers have the technological cap ability

to adequatel y demonstrate the volume of fuel produced under each pathway . Commenters confirmed that some starch may adhere to the unconverted fiber, even after most of the starch has been processed into ethanol. 79 However, man y of those same commenters also supported considering this starch as “de minimis” under our current regulations. 80 Those current regulations state that “producers and importers may disregard an y incidental, de minimis feedstock contaminants that are impractical to remove and a re related to customary

feedstock production and transport . ” 81 We received several comments noting that corn kernels undergo a rigorous mechanical process designed to separate the starch from the rest of the corn kernel
79 See, for example, comments submitted by Edeniq, Inc. ( EPA - HQ - OAR - 2012 - 0401 - 0159 ). 80 Numerous commenters supported this position. See, for example, comments submitted by Edeniq, Inc. ( EPA HQ - OAR - 2012 - 0401 - 0159 ), the American Coalition for Ethanol ( EPA - HQ - OAR - 2012 - 0401 - 01 47), and Grow th Energy ( EPA - HQ - OAR - 2012 - 0401 - 01 73). 81 See specifically § 80.1426 (f) (1).*** E.O. 12866 Review

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Page **82** of **144** before processing that starch into e thanol. Despite this process, some starch adheres to the fibrous portions of the kernel and, in a standard corn starch ethanol plant, ends up in the DDG. 82 Commenters argued that this adhering starch is indeed impractical to remove and is present onl y i n small quantities. 83 In the preamble of the NPRM for this rulemaking, EPA stated that starch might compose up to 20 percent of the separated mass used to produce corn kernel fiber ethanol via a separate stream , based on data from 1998 . T hrough the public comment process, w e received more recent and and fine - grained data that better represents current methods of starch - fiber separation. Based on this newer data, we believe the actual amount of starch that adheres to the fiber after separation from the rest of the corn kernel is ty picall y less than 5 percent of the total mass of the separated corn kernel fiber feedstock . 84 In light of the small quantity of starch involved, ty

pically les s than 5 percent of the mass , and the impracticability

of separating the starch which adheres to the fiber, we believe that this starch component can appropriatel y be considered a de minimis contaminant . Li ke all plant fibers, the fibrous portion of corn kernel fiber is composed of nearly 100 percent cellulose, hemicellulose, and lignin. Taken together with the small quantity of adhering corn starch, corn kernel fiber is clearly

above the 75 percent threshold we have established in today ’s rulemaking for determining when a feedstock is predominantly cellulosic, and this is also consistent with our finding, discussed in Section IV.A of the preamble, that crop residue as a class has at least 75 percent cellulosic content . To be clear, this de minimis deter mination only

applies to starch

82 See comments submitted by Quad County Corn Processors ( EPA - HQ - OAR - 2012 - 0401 - 0 063), by Edeniq, Inc. ( EPA - HQ - OAR - 2012 - 0401 - 0159 ), and the American Coalition for Ethanol ( EPA - HQ - OAR - 2012 - 0401 - 01 47). 83 See, for example, comments submitted by Edeniq, Inc. ( EPA - HQ - OAR - 2012 - 0401 - 0159 ). 84 Ibid.*** E.O. 12866 Review

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Page **83** of **144** adhering to corn kernel fiber that is being processed into ethanol separately from corn starch ethanol. Processes that convert corn starch and corn kernel fiber to ethanol in situ (as is described in detail in the next sect ion) may not consider any

portion of the corn starch to be de minimis.

c. Processing Corn Kernel Fiber Corn kernel fiber may

be used for biofuel production in multiple way s. As detailed above in Section IV.A.3, renewable fuel can be produced pursuant to biochemical conversion processes that simultaneously hydrol yz e and/or ferment cellulosic and non - cellulosic material into fermentable sugars and/ or fuel. Corn kernel fiber as a crop residue may be converted into qualifying renewable fuel via biochemical m ethods in one of two way s. 85 First, it may be converted via a consolidated bioprocessing method that converts cellulosic and non - cellulosic corn material into sugars and/or fuel products simultaneously . Second, corn kernel fiber may be converted to sugar and/or fuel via a separate stream from the corn starch sugar and fuel conversion streams. The first method may

include simultaneous hydroly sis of the starch and cellulosic components of the corn kernel into sugars, followed by simultaneous conversion of t hose sugars into fuel products. In other cases, the cellulosic and non - cellulosic portions of the corn kernel may be hydrol yz ed separately but fermented together in a single vessel. In either case, EPA

85 Corn kernel fiber may also be converted to fuel via thermochemical methods. See Sections A.5 and A.6 for detai ls on the requirements for renewable fuel production via thermochemical pathways.*** E.O. 12866 Review

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Page **84** of **144** considers this process technology to be a method of simultaneous conversion. We discuss the requirements for using a simultaneous conversion process in Sections IV.A.3 of this preamble . Alternativel y, producers may h ydrolyze and ferment the cellulosic and non - cellulosic portions of the corn kernel via sep arate streams. This may be accomplished in at least one of two way s. A producer might separate the starch from the corn kernel fiber before the hydrol ys is step, sending each set of material through separate h ydrolysis, fermentation, and distillation stre ams. A producer might also perform a conventional corn starch ethanol fermentation process, yi elding corn starch ethanol, and then hydroly ze and ferment the residual solids (which ty pically become DDG at the end of the process) a second time, using enz ym es designed to convert cellulosic material to sugars. If a producer uses a process that hydrol yz es and ferments the corn kernel fiber separatel y from the corn starch, either in a parallel but separate process or in a sequential process that extracts the fiber from the residual solids after corn starch ethanol fermentation , then the producer is not considered to be performing simultaneous conversion, and all of the resulting corn kernel fiber - derived fuel may appropriatel y be considered derived from predomin antly cellulosic biomass. As discussed above, some starch may adhere to the fiber after the separation step or may

remain in the residual solids output of a conventional corn starch ethanol fermentation process. However, we believe this small amount of c orn starch contaminant fits under EPA’s de minimis feedstock contaminant provision in the existing regulations, and should be disregarded . 86 This is the case even if a producer were to add enz ym es which might convert starch adhering to the corn kernel fibe r to ethanol. 3. Identification of Feedstocks EPA Considers Crop Residues 86 See specifically § 80.1426 (f) (1).*** E.O. 12866 Review

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Page **85** of **144** To provide additional guidance on the definition of crop residue , EPA is identifying several feedstocks that we consider to be crop residues. In the NPRM, we provided a table that in cluded feedstocks which we have previousl y identified as crop residues in public documents and which we believed fit the definition of crop residue. 87 That table included corn stover, corn kernel fiber (see S ection IV . D. 2 above for further discussion) , citrus residue, rice straw, sugarcane bagasse, and wheat straw. All of these feedstocks were identified as crop residues in the preamble of the March 2010 RFS final rulemaking , with the exception of corn kernel fiber . For example, EPA anal yzed the agricultural sector GHG emissions of using corn stover for biofuels in the final March 2010 RFS final rulemaking and found that fuel produced from this feedstock met the 60% GHG reduction threshold for cellulosic biofuels. 88 Since the direct and indirect impacts of several other crop product s, including citrus residue, rice straw, and wheat straw , were expected to be similar to those of corn stover, EPA also applied the land use change impacts associated with corn stover to those product s as well . Based on that ana ly sis, EPA found that fuels produced from these product s also met the 60% reduction threshold. EPA further determined that fuels produced from materials left over after the processing of a crop into a useable resource had land use impacts sufficiently sim ilar to agricultural residues to also meet the 60% threshold. EPA specificall y cited bagasse left over from sugarcane processing as an example of this ty

pe of crop residue. EPA sought comment on whether the se feedstocks should be considered crop residu es, whether these feedstocks would have direct and indirect GHG impacts similar to corn stover, and 87 See Table IV.D. - 1

– Feedstocks That May Qualify as Crop Residue, 78 FR, 36056 - 57, June 14, 2013. 88 See EPA - HQ - OAR - 2005 - 0161 - 3173.2 , EP A - HQ - OAR - 2005 - 0161 - 3173.3, and EPA - HQ - OAR - 2005 - 0161 - 3173.4, under the Lifecycle Results Docket for the March 2010 RFS Final Rulemaking.*** E.O. 12866 Review

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Page **86** of **144** whether additional feedstocks should also be considered crop residues . We received numerous comments that supported considering all of these feedstocks as crop residues. 89 We did not receive an y comments that opposed considering any of the feedstocks identified in the NPRM as crop residues, nor did we receive any comments that disputed our reasons for considering them crop residues. In addition, several c ommenters identified other crop products which are extremely similar to those that we proposed to consider crop residues. Commenters noted that we have identified sugarcane bagasse as a crop residue in multiple rulemakings, including the March 2010 RFS fi nal rule and the NPRM of this rule, but have not previousl y considered sweet sorghum bagasse. 90 T he processes for separating bagasse from simple sugars is very similar between sugarcane and sweet sorghum and the market and other potential GHG impacts of ut ilizing that bagasse to produce renewable fuel are also considered to be similar. Therefore we are today identifying both as feedstocks which we consider crop residues. Commenters noted that we identified corn stover as a crop residue in the NPRM, but have not previously

considered grain sorghum stover. 91 Since the composition, methods of production, methods of collection , market potential, and implications for other relevant markets for these two types of stover are nearl y identical, these two stovers would reasonabl y seem to have similar GHG impact profiles.

89 Several commenters expressed extremely similar opinions on this point. But see, for example, comments submitted by th e Renewable Fuels Association, (EPA - HQ - OAR - 2012 - 0401 - 0123), the National Corn Growers Association (EPA - HQ - OAR - 2012 - 0401 - 0065), and Grow th Energy (EPA - HQ - OAR - 2012 - 0401 - 0173). 90 See comments submitted by NexSteppe Inc. ( EPA - HQ - OAR - 2012 - 0401 - 0 153). See also 75 FR 14692, March 26, 2010 and 78 FR 36042, June 14, 2013. 91 See comments submitted by the National Sorghum Producers ( EPA - HQ - OAR - 2012 - 0401 - 0065 ), Iogen Corporation ( EPA - HQ - OAR - 2012 - 0401 - 0 135), NexSteppe Inc. ( EPA - HQ - OAR - 2012 - 0401 - 0 153).*** E.O. 12866 Review

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Page **87** of **144** Commenters also noted that, in the NPRM, we did not list grain fibers other than corn kernel fiber. To the extent that other grain kernel fibers are extracted and used for biofuel feedstock in the same manner as we lay out for corn kernel fiber in Section IV.D.2 above (i.e., during the processing of grain feedstock into ethanol), these products would reasonabl y s eem to have similar GHG impact profiles to corn kernel fiber. 92 To the extent that these grain fibers are obtained in the same manner that we have laid out for corn kernel fiber, their alternative fate would also be distillers grains. The impacts of fiber on the digestion of ruminants, swine, and poultry are extremel y similar, regardless of what grain that fiber came from, because all grain fiber is virtually

100 percent cellulosic. Therefore, we are confident that diverting that fiber to a fuel production stream would have similarly insignificant market and other GHG impacts to those of corn kernel fiber, and we similarl y consider them to be crop residues under those circumstances. Commenters also pointed out that we identified wheat straw and rice straw as crop residues in the NPRM but did not identify other grain straws (e.g., oat s traw, barley straw) as residues, even though these products would reasonably seem to have similar GHG impact profiles to wheat straw and rice straw. 93 EPA has determined that these straws do indeed have similar GHG impacts to those of wheat straw and rice straw. All of them have similarly insignificant markets, insignificant effects on demand for the crop from which they are derived, and insignificant impacts on other crop products and substitutes. Further they are processed into

92 See comments su

bmitted by Novozymes North America Inc. ( EPA - HQ - OAR - 2012 - 0401 - 0088 ), ICM ( EPA - HQ OAR - 2012 - 0401 - 0 114), NexSteppe Inc. ( EPA - HQ - OAR - 2012 - 0401 - 0 153), Growth Energy ( EPA - HQ - OAR - 2012 - 0401 - 0 173), 93 See comments submitted by Iogen Corporation ( EPA - HQ - OAR - 2012 - 0401 - 0 135),*** E.O. 12866 Review

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Page **88** of **144** renewable fuel in nearl y identical way s. Therefore, we consider all of the grain straws listed in Table IV.D.3 - 1 below to be crop residues. Finally , while we proposed to identify “ citrus residue” as a crop residue in the NPRM, several stakeholders have suggested that this label is rather vague. Citrus oils have significant existing markets in their own right in the cosmetic and food industries, among others. Because of this, we generally

consider only

citrus peels from which oils have been extracted to be crop residues. In ge neral, we consider other resid u es from the processin g of citrus fruit, such as seeds or pulp leftover from the jui cing process, to be citrus residues. Further, w e do not generall y consider tree matter which is not part of the fruit, such as fallen leaves or branches, to be crop residue. However, these by products may

fit the definition of “tree residue” in our regulations and could potentially

be used to produce qualifying renewable fuel under tree residue pathway s. In Table IV.D.3 - 1we are identifying se veral crop products that EPA considers to be crop residues . 94 This table is meant to be illustrative, not exhaustive, of the ty pes of crop products that EPA considers to be crop residues. It is included here to provide guidance and greater clarity to stak eholders; it should not be considered a definitive list. It will not appear in our regulations, though EPA may publish a table similar to Table IV.D.3 - 1 on our website for the convenience and education of stakeholders. We acknowledge that there may be other crop products which were not brought to our attention during this rulemaking process and which are not included in Table IV.D.3 - 1, but which may meet the definition of crop residue as we are clarifying it in today ’s final rulemaking. Further details regarding how EPA may evaluate these crop products can be found in Section IV.D.1 and Section IV.D.2 of this final rulemaking. 94 Our analysis of corn kernel fiber as a crop residue is discussed in Section IV.D.2 of this preamble.*** E.O. 12866 Review

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Page **89** of **144** Additionally , stakeholders may also want to consult Section IV.D.4 of this final rulemaking, which describes new RRR requirements for producers who wish to use crop residue as a feedstock for renewable fuel production.

**Table IV.**  **D. 3**  **- 1**  **– Feedstocks That EPA Considers Crop Residues** 

Sugarcane and Sweet Sorghum Bagasse Kernel Fiber from Barley, Corn, Oats, Rice, Rye, Grain Sorghum, and Wheat

Stover from Corn and Grain Sorghum Straw from Barley , Oats, Rice, Rye, Soy beans, and Wheat Citrus Residues from Fruit Processing

4. Registration, Recordkeeping, and Reporting Requirements Associated with Using Crop Residue as a Feedstock Under current regulations, producers registering to generate RINs using the crop residue pathway are not required to specify exactly which crop product s they intend to use. This could potentially

lead to a situation where a producer inadvertently generates inva lid RI

Ns b y producing a batch of fuel from a crop product that does not meet the crop residue definition . In order to ensure that producers onl y utilize crop product s which EPA considers to be crop residues and thereby generate valid RI Ns when using a cro p residue pathway , we are implementing additional RRR requirements for producers using crop residue as feedstock under any approved pathway .*** E.O. 12866 Review

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Page **90** of **144** a. Registration Requirements for Producers Utilizing Crop Residue as a Feedstock EPA acknowledges that the regu latory definition adopted today may be difficult to interpret in some respects. On the other hand, EPA believes that the proposed revised definition appropriatel y describes crop products that should qualify as crop resid ues. In order to reduce uncertainty and confusion in the application of the revised definition, we are implementing a new registration requirement for those seeking to use crop residues as a feedstock. Any entity registering to use crop residue as a feedstock must, as a part of their regi stration package submitted pursuant to 40 CFR 80.1450, include a list of all crop materials they intend to use that they consider to be crop residue, and a justification for their belief that the listed crop materials meet the regulatory

def inition of crop residue. These r egulatory amendments appear in 40 CFR 80.1450. If the crop product is one that EPA has previously identified as meeting the regulatory definition of crop residue, then referencing the relevant EPA document will likely be sufficient justi fication . However, if a crop product is not one that EPA has previously identified as a crop residue , then EPA intends to evaluate whether that feedstock meets the regulatory definition prior to accepting the facility ’s registration . If the feedstock is very similar to one that EPA has already evaluated, this may be a relativel y brief process. See the discussion in Section IV.D. 3 above for some examples of how this comparison could be performed b y EPA. However, if the feedstock markedl y differ s from tho se we have evaluated previousl y, as corn kernel fiber did before this final rulemaking, then a more extensive anal ys is , even including lifecycle GHG anal ys is, may

be required. Each feedstock presents its own sets of questions. Stakeh olders may*** E.O. 12866 Review

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Page **91** of **144** wish to consult our analysis of corn kernel fiber in S ection IV. D. 2 of this rulemaking for an example of such an analysis . If EPA decides that further anal ys is of a particular feedstock is needed, the registrant will have the option o f removing the crop product from its registration package, in order to allow the remainder of the package to be processed more quickly and to allow the producer to be registered and begin production using other feedstocks pending EPA’s an al ys is. If EPA later determines that the crop product in question meets the regulatory definition of crop residue, then the registrant could update their registration to include that feedstock. However, in order to avoid delay , stakeholders may

wish to c onsult EPA’s website and rulemakings regarding the definition of crop residue before submitting their registration. Should a stakeholder discover that a feedstock they

are planning to utilize has not been previously identified b y EPA as a crop residue, it may

be beneficial and expedient for them to consult EPA before submitting their registration. We are not finalizing any requirement that stakeholders take this affirmative step before submitting their registration. However, we believe that taking this s tep may lead to a more streamlined process for entities who wish to utilize a new crop product as feedstock in pathway s providing for use of crop residue. Entities who are already registered to generate renewable fuel using crop residue as a feedstock wi ll not be required to immediately update their registration to conform to these new requirements. However, when these entities perform periodic updates to their registration pursuant to 40 CFR 80.1450(d)(3), they will be required to include the informatio n described in these new requirements at that time .*** E.O. 12866 Review

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Page **92** of **144** b. Recordkeeping and Reporting Requirements for Producers Utilizing Crop Residue as a Feedstock In ad dition to the registration requirements outlined above, EPA is also requiring that any entity registe red to generate RINs using crop residue as a feedstock keep records of the quantities of each specific crop product they utilize, and that they

report the quantities used to generate qualifying renewable fuel over the past three months in each quarterl y report to EPA. 95 This requirement is somewhat different from the feedstock reporting requirement associated with reporting RIN generation in EMTS. In EMTS, the RI N generator is only

required to report the total quantity

of crop residue used to produce the b atch of fuel for which RINs are generated. These new recordkeeping and quarterly reporting requirements go a step further by requiring specific accounting of the exa ct quantities of individual crop products used by the producer over a three - month period. The exact regulatory requirements of this new provision are detailed in the amendments to 40 CFR 80.1451 and 80.1454 below. **E .**  **Am endments to Various RFS Compliance Related Provisions**  We are finalizing a number of changes to the RFS regulations related to compliance, except for the definition of “Responsible Corporate Officer” (RCO) , which was proposed but is not being finalized .

95 At the time of this rulemaking, RIN generators would report this information via quarterly report number RFS0801. See http://www.epa.gov/otaq/fuels/reporting/rfs.htm for further details.*** E.O. 12866 Review

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Page **93** of **144** 1. Changes to Definitions “Responsible Corporate Officer” EPA is not finalizing the definition of “respo nsible corporate officer” at this time. The existing RFS regulations at §§ 80.1416, 80.1451 and 80.1454, and EPA guidance and instructions regarding registration and reporting, frequentl y refer to the responsibilities of the “owner or a responsible corpo rate officer.” However, the term “responsible corporate officer” had not been defined in the RFS regulations. Several commenters requested that EPA review its existing policy on acceptable position titles and what registration updates have to be approve d by an RCO . These comments were directed at EPA’s administrative procedures and registration sy stem, rather than the regulatory responsibilities of the RCO with regard to compliance with RFS standards. EPA needs to evaluate the registration process, whi ch may include potential modifications to the registration sy stem, for opportunities to minimize burden on RCOs and to better differentiate an RCO’s roles with respect to program compliance versus administrative roles in our registration sy stem. Based on these comments and the potential for registration sy stem modifications , EPA is not finalizing the RCO definition at this time . Regulated parties should continue to follow existing regulations and registration procedures . “Small Refinery”*** E.O. 12866 Review

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Page **94** of **144** Section 211(o )(9)(A) of the Clean Air Act provides an exemption from RFS requirements through 2010 for “small refineries,” defined as refineries having an average aggregate dail y crude oil throughput for a calendar ye ar that does not exceed 75,000 barrels. It also pro vides for possible extensions of this exemption, through individual petitions to EPA under CAA 211(o)(9)(B). In EPA’s March 26, 2010 regulations implementing the EISA amendments to the RFS program we specified in the regulatory definition of “small refine ry” that the 75,000 bpd threshold determination should be calculated based on information from calendar ye ar 2006. At the beginning of the program, having a single ye ar in which to make this determination simplified the calculations and helped to ensure that all refineries were treated similarly . However, we no longer believe that it is appropriate that refineries satisfying the 75,000 bpd threshold in 2006 should be eligible for extensions to their small refinery RFS exemption if they no longer meet the 75,000 bpd threshold. Allowing such facilities to qualify for an exemption extension, while not allowing similarl y sized facilities that have not grown since 2006 to qualify for an exemption, does not appear fair, nor does it further the objectives of the statute to target relief to onl y truly small facilities. Therefore, we propose d modifying the definition of small refinery so that the crude throughput threshold of 75,000 bpd must apply in 2006 and in all subsequent years. We also propose d specifying i n § 80.1441(e)(2)(iii) that in order to qualify for an extension of its small refinery exemption, a refinery

must meet the definition of “small refinery” in § 80.1401 for all full calendar years between 2006 and the date of submission of the petition for an extension of the exemption. We proposed that that these changes would not affect any existing exemption extensions under CAA 211(o)(9)(B); rather, they would apply

at such time as any

approved exemption*** E.O. 12866 Review

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Page **95** of **144** extension expires and the refinery at issue see ks a further exemption extension. No further extension would be permitted unless the revised crude oil throughput specifications were satisfied. We received two comments on our proposed small refinery revisions, both supporting EPA’s proposed change. W e received no negative comments on our proposed small refinery revisions. Therefore, we are finalizing these revisions as proposed. 2. Provisions for Small Blenders of Renewable Fuels The RFS regulations at § 80.1440 allow renewable fuel blenders who handle and blend less than 125,000 gallons of renewable fuel per ye ar, and who are not obligated parties or exporters, to delegate their RI N - related responsibilities to the party directly upstream from them who supplied the renewable fuel for blending. EP A has received feedback from several parties to the effect that the 125,000 threshold is too low and is a lower threshold than what industry considers “small.” EPA requested input on what a more appropriate gallon threshold should be . EPA received two comments supporting an increase in the threshold and one comment suggesting it remain at the current amount of 125,000 gallons. Of the two commenters suggesting the amount should be increased, one suggested an increased amount of 250,000 gallons , and the other suggested an increased amount of 3 to 4 million gallons. Based on comments received from stakeholders previously and based on comments received on the proposed rule, EPA believes it is reasonable to increase the threshold for small blenders of*** E.O. 12866 Review

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Page **96** of **144** renewable fuels ( those that are not obligated parties or exporters) to help relieve burden from managing RI

Ns . However, EPA is cautious no t to increase the threshold beyond what is reasonable and beyond an amount that would be considered “small.” EPA generall y agrees with one of the commenter’s suggested amount of 250,000 gallons. Doubling the threshold from 125,000 gallons to 250,000 gallo ns will provide additional relief to the smallest renewable fuel blenders. Therefore, EPA is adjust ing the gallon threshold for small blenders of renewable fuels ( and who are not obligated parties or exporters ) that want to delegate their RI N - related resp onsibilities to the party directly upstream from them who supplied the renewable fuel for blending. The threshold is being changed from 125,000 gallons to 250,000 gallons in t oday ’s final rule. 3. Changes to Section 80.1450

– Registration Requiremen ts EPA is adding a new paragraph (h) to § 80.1450 that describes the circumstances under which EPA may

deactivate a company registration and an administrative process to initiate a deac tivation that provides any company the opportunity

to respond to and/or timely submit the required information. EPA originall y proposed deactivating a company registration where there had been no activity in EMTS for one calendar year (January 1 thro ugh December 31). Commenters noted that there may

be valid reasons for a break in use of EMTS within a calendar year. T o avoid this scenario, EPA is modifying th is provision to specify that i f a compan y has reported no activity in EMTS under § 80.1452 for twenty- four calendar months , then EPA will initiate this*** E.O. 12866 Review

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Page **97** of **144** administrative process . In addition, for this particular circumstance, if a party resp onds within 14 day s of EPA noti f

i cation of an intent to dactivate registration with a letter stating that they wish to remain as a current registered party , EPA will not deactivate their registration. If there is no response received, or the response does not indicate a desire to for the entity to remain activel y registered , then EPA may deactivate the registration. EPA may also deactivate a company registration if a party fails to comply with any registration requirement of § 80.1450, if the party fails to submit any required compliance report under § 80.1451, if the party fails to meet the requirements related to EMTS under § 80.1452, or if the party fails to meet the requirements related to attest engagements under § 80.1454. EPA will provide written notice to the owner or responsible corporate officer (RCO) that it intends to deactivate the compan y’s registration and would allow the company fourteen (1 4) day s from the date of the letter’s issuance to correct the deficiencies noted or explain why there is no need for corrective action. . If there is no satisfactory response received, then EPA may deactivate the registration . Reactivation will be possible following the submission or updating of all required information and reports. 4. Changes to Section 80.1452

– EPA Moderated Transaction System (EMTS) Requirements

– Alternative Reporting Method for Sell and Buy Transactions for Assigned RINs EPA proposed an alternative method for recording in EMTS the date of title transfer betwee n the buye r and seller. Specificall y, the parties involved in a trade of renewable fuel with*** E.O. 12866 Review

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Page **98** of **144** assigned RINs would agree beforehand on using either the current methodology for determi ning the date of transfer or the parties would utilize a unique identifier and onl y the buyer would enter into EMTS the title transfer date. EPA is not finaliz ing this proposal at this time due to impacts on other s ys tems functionality

and processes. EPA may choose to pursue this proposal in a later rulemaking when we have sufficient resources to modify impacted sy stems . 5 . Changes to Facility’s Baseline Volume to Allow “Nameplate Capacity” for Facilities not Claiming Exemption from the 20% GHG Reduction Threshold As a require ment of registration under the RFS program, each renewable fuel producer and foreign ethanol producer must establish and provide documents to support its facility ’s baseline volume as defined in § 80.1401. This is either the permitted capacity or, if perm itted capacity cannot be determined, the actual peak capacity of a specific renewable fuel production facility on a calendar ye ar basis. After the promulgation of the March 26, 2010 RFS rule, we have received man y requests from companies asking EPA to all ow them to use their nameplate or “design” capacity

to establish their facility ’s baseline volume due to either the facility being exempt from obtaining a permit, and thus not able to determine their permitted capacity , or the facility not starting operati ons, or not being operational for a full calendar year to produce actual production records to establish actual peak capacities. Because the regulations currentl y only allow a facility ’s baseline volume to be established by a limit stated in a permit or a ctual production records for at least one calendar ye ar, facilities that had neither a permit or sufficient*** E.O. 12866 Review

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Page **99** of **144** production records had difficultly registering under the RFS program. EPA prop o sed allowing use of nameplate capacity for registration, where permi tted capacity or actual peak capacity could not be determined. There were no adverse comments regarding this proposal . T herefore, in this rulemaking we are finalizing our proposal to allow a facility to use its “nameplate capacity” to establish its facility ’s baseline volume for the purposes of registration . The “nameplate capacity” may be used onl y if the facility 1) does not have a permit or there is no limit stated in the permit to establish their permitted capacity ; 2) has not started operat ions or does not have at least one calendar ye ar of production records ; and 3) does not claim exemption from the 20 percent GHG threshold under § 80.1403. Due to the complexity of the exemption provision provided under § 80.1403 and the added flexibility that facilities claiming this exemption are allotted under the program, we are finalizing our decision that the exten sion of this option not be available to facilities claiming an exemption under § 80.1403. Additionally , by this stage in the RFS program, the facilities that would qualify for registration under § 80.1403 would be very

few, if an y. We are also finalizing the revision of the definition of baseline volume to include “nameplate capacity,” add a new definition for “nameplate capacity” to § 80.1 401, and include conforming amendments to the registration requirements of § 80.1450. The amendments today

will allow the initial registration of certain facilities using nameplate capacity , but EPA interprets the requirements for registration updates under 80.1450(d)(i) and (ii) to require the calculation and submission of actual peak capacity as part of the registration updates required in those sections where the facility has operated for a sufficient time period to allow that calculation. 6 . Cha nges to Section 80.1463

– Wh at Penalties Apply Under the RFS Program?*** E.O. 12866 Review

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Page **100** of **144** Preventing the generation and use of invalid RINs and encouraging rapid retirement and replacement of invalid RINs is crucial to the integrity of the RFS program. The RFS regulations i nclude various provisions related to prohibited acts, liability for violations, and penalties for those violations. Section 80.1460 sets forth the prohibited acts for the renewable fuels program. Section 80.1461(a) states that any person who violates a prohibition in § 80.1460 (a) through (d) is liable for the violation of that prohibition, and § 80.1461(b) provides the liability provisions for failure to meet other provisions of the regulations. The penalty provisions of the regulations at § 80.1463(a) state that any

person who is liable for a violation under § 80.1461 is subject to a civil penalty as specified in § 205 and § 211(d) of the Clean Air Act (CAA), for every day of each such violation and the amount of economic benefit or savings resulting f rom each violation. Section 80.1463(c) provides that ‘‘any person . . . is liable for a separate day of violation for each day such a requirement remains unfulfilled.’’ As described in the proposal, EPA interprets these statutory and regulatory

penalty provisions to give the Agency the authority to seek penalties against parties generating, transferring or causing another person to generate or transfer invalid RINs for the day of the party ’s action and each day subsequent to the party ’s action that an invalid RI N is available for sale or use b y a party subject to an obligation under the RFS program to acquire and retire RINs. For example, for a RIN generator, this time period ty picall y runs from the date of invalid RIN generation until either effective c orrective action is taken by the RIN generator to remove the*** E.O. 12866 Review

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Page **101** of **144** invalid RI N from the marketplace or a party uses the RIN to satisfy

an RVO or other requirement to retire RINs . This is consistent with the CAA approach of assessing penalties for every day of a violation, consistent with EPA’s historic approach under the fuels regulations (see § 80.615), and will encourage renewable fuel producers that generate invalid RINs to promptly tak e corrective action. EPA received comments from two parties in opposition of the proposed regulation in § 80.1463. Both commenters stated that RI N may be kept in another party’s inventory outside of the ge nerator’s or transferor’s control. Therefore, if that RI N is later identified as invalid the generator and transferor could be held to substantial penalties based on actions by other parties beyond their control. One of the commenters stated they believe that finalizing this regulation will “cause confusion and may create disincentives for producers to self - report and take corrective actions, rather than promote compliance”. While EPA acknowledges that the RIN generator or subsequent transferor cannot fo rce another party to retire invalid RI Ns, the regulations at § 80.1431(b)(1) state that “Upon determination by any party that RI

Ns owned are invalid, the party

must ...retire the invalid RI Ns in the applicable RIN transaction reports...for the quarter in which the RI Ns were determined to be invalid”. Therefore, EPA believes that finalizing EPA’s existing interpretation of per day violations for the generation or transfer of invalid RI Ns will minimize potential penalties and incentivize partie s who committed a prohibited act at § 80.1460 (b)(1) - (4) and (b)(6) to identify invalid RINs to those owning parties so they can retire RINs as required in § 80.1431(b)(1) prior to an obligated party or renewable fuel exporter using those RI Ns for compliance purposes.*** E.O. 12866 Review

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Page **102** of **144** One commenter stated that EPA should continue to use its enforcement discretion to assign appropriate penalties instead of finalizing this regulation. In the proposal, EPA explained that this regulation would simply codify our existing practice and interpret ation and that we would continue to evaluate the appropriate penalties for each violation on a case b y case basis. Although EPA is finalizing this regulation to make it clear to the regulated industry that EPA has the authority

to seek the maximum statuto ry penalty for each day

of violation, the Agency

will continue to evaluate appropriate penalties on a case by case basis. As described above, EPA is finalizing the addition of the new paragraph (d) to § 80.1463 which more explicitly

incorporates EPA’s interpretation of these penalty provisions into the regulations. The language has been modified from the proposal to follow the existing format and language in § 80.1463. The amendments state that any person liable under § 80.1461(a) for a violation of § 80.1460(b)(1) - (4) and (b)(6) for RIN generation or transfer violations is subject to a separate day

of violation for each day that the invalid RI

N remains available for use for compliance purposes, and EPA has the authority to seek the maximum statutory penalty for each day of violation. **F .**  **Minor Corrections to RFS**  **Provisions** We are finalizing a number of corrections to address minor definitional issues that have been identified in implementing the RFS program. Renewable Biomass*** E.O. 12866 Review

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Page **103** of **144** We did not receive an y significant comment on our proposed clarification to the definition “renewable biomass” in § 80.1401 and thus are finalizing proposed changes to make clear that biomass obtained in the vicinity of buildin gs means biomass obtained within 200 feet of the buildings . The preamble for the March 26, 2010 RFS final rule cites the distance of 200 feet (see 75 FR 14696), but EPA did not include a reference to this value in the regulations. We believe doing so pro vides additional clarity to the regulations. English Language Translations We received no significant comments on our proposed changes realated to english language translations. Therefore, we are finalizing the addition of a new paragraph (i) to § 80. 1450 stat ing that an y registration materials submitted to EPA must be in English or accompanied b y an English language translation. Similarly , we are finalizing the addition of a new paragraph (h) to § 80.1451 , which state s that any reports submitted to E PA must be in English or accompanied by an English language translation . We are also finalizing the addition of a new paragraph (q) to § 80.1454 , which state s that an y records submitted to EPA must be in English or accompanied by an English language trans lation. The translation and all other associated documents must be maintained by the submitting company

for a period of five (5) ye ars, which is already

the established time period for keeping records under the existing RFS program. Correction of Ty

pogra phical Errors*** E.O. 12866 Review

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Page **104** of **144** No comments were received on our proposed corrections to ty pographical errors, thus w e are finalizing ty

pographical and grammatical corrections in § 80.1466 as proposed. Specificall y, we are amending paragraph (o) to correct a typograph ical error in the last sentence of the affirmation statement, by

changing the citation from § 80.1465 to § 80.1466. We are also amending paragraph (d)(3)(ii) to correct a ty pographical error. The current regulation cites § 80.65(e)(2)(iii), which does not exist. The correct citation is § 80.65(f)(2)(iii). **V. Am**  **endments to the E15 Misfueling Mitigation Rule** In the NPRM, w e propose d several minor corrections and other changes to the E15 misfueling mitigation rule (E15 MMR) found at 40 CFR p art 80, s ubpart N. **A. Changes to Section 80.1501**  **– Label**  We propose d to correct several minor errors in the description of the E15 label required by the E15 MMR at § 80.1501, including corrections in the dimensions of the label and ensuring that the word “ATTEN TION” is capitalized. The Agency intended the label required by the regulations to look identical to that pictured in the Federal Register notice for the final E15 MMR (see 76 FR 44406, 44418, July 25, 2011) , but there were some minor ty pographical errors in the regulations .*** E.O. 12866 Review

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Page **105** of **144** We received a number of comments on the E15 label changes, and most were supportive of the corrections to the regulations to make the label consistent with the picture of the E15 label in the E15 MMR. However, some comments expressed concerns about the potential costs to retail stations already lawfully selling E15 with labels produced under the current regulations. We recognize this concern; however, we do not believe that this is an issue since EPA has worked closel y with the limit ed number of retail stations that have lawfull y offered E15 to date to ensure that their labels met the intent of the E15 MMR (i.e. , were consistent with the label pictured in the E15 MMR). We also received several comments requesting that EPA make substantive changes to the E15 label (e.g. , change the word “ATTENTION” to “WARNI NG”). The Agency

thoroughl y explained its rationale for its label design in the E15 MMR and was not intending to make substantive changes to the E15 label in this rulemaking. We also received comments suggesting additional labeling requirements for blender pumps. We believe that these comments are outside of the scope of this rulemaking. Therefore, we are finalizing the changes to the E15 labeling regulations at § 80.1501 as prop osed. **B. Changes to Section 80.1502**  **– E15 Survey**  We proposed two changes to the survey requirements found at § 80.1502. First, we propose d to clarify

that E15 survey s need to sample for Reid vapor pressure (RVP) only during*** E.O. 12866 Review

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Page **106** of **144** the high ozone season as defi ned in § 80.27(a)(2)(ii) or during an y time RVP standards appl y in any state implementation plan approved or promulgated under the Clean Air Act. EPA did not intend to require RVP sampling and testing during the rest of the ye ar, when RVP standards do not apply . Second, we propose d to change when the results of survey s that detect potential noncompliance must be reported to the Agency . As originall y drafted, the regulations require the independent survey

association conducting a survey to notify EPA of potentially

noncompliant samples within 24 hours of the laboratory receiving this sample (s ee 76 FR at 44423, July 25, 2011). EPA has since learned that more time may be needed for reporting of noncompliant samples since it may

take several days for anal y sis of the sample to be completed. We are therefore requiring that noncompliant samples be reported to EPA within 24 hours of being anal yz ed. Comments received on these two changes to the E15 survey requirements were overwhelmingly

supportive. Therefo re, EPA is finalizing the changes to the E15 survey requirements in § 80.1502 as proposed. **C. Changes to Section 80.1503**  **– Product Transfer Documents**  In the NPRM, we propos ed certain minor changes to the product transfer document (PTD) requirements found in § 80.1503. Specifically , we propos ed to allow the use of product codes for conventional blendstock/gasoline upstream of an ethanol blending facility , since*** E.O. 12866 Review

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Page **107** of **144** historically , the codes have been allowed to be used for conventional blendstock/gasoline ups tream of an ethanol blending facility in other fuels programs. We noted that this was an unintentional omission from the original regulation. Commenters unanimously supported including language that allowed the use of product codes for conventional ble ndstock/gasoline upstream of an ethanol blending facility . Some commenters pointed out that maintaining the current language allowing the use of product codes downstream of an ethanol blending facility did not make sense since product codes have not ty pic all y been used in that part of the gasoline distribution chain. Therefore, we are finalizing the flexibility

for parties upstream of an ethanol blending facility to use product codes and removing the extraneous language for product code use downstream of an ethanol blending facility . We also received comment on whether this proposed change was in response to a petition for reconsideration from the American Fuel and Petrochemical Manufacturers (AFPM) (formerl y the National Petroleum Refiners Association , or NPRA), which raised a number of questions regarding the E15 MMR PTD requirements. 96 Today’s regulatory change only

addresses one of the questions that AFPM raised regarding the E15 MMR PTD requirements in its petition. Today ’s action was not meant to ad dress all of the questions raised b y AFPM regarding the E15 MMR PTD requirements. It should be noted that most of the questions raised in AFPM’s petition did not require changes to the regulations and were simply questions on the implementation and applic ability of the E15 MMR requirements. For example, AFPM was

96 See September 15, 2011 letter from AFPM entitled, “ Request for Partial Reconsideration of EPA’s “Misfueling Rule” 76 Fed. Reg. 44,406 (July 25, 2011) ,” Docket EPA - HQ - OAR - 2012 - 0401 - 0041 .*** E.O. 12866 Review

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Page **108** of **144** unclear on what the wintertime PTD requirements for gasoline/blendstocks upstream of an ethanol blending facility are under the E15 MMR. These types of questions are typicall y addressed through guidance provided to affected parties (either directl y or via guidance letters or the Fuels Program Frequent Questions web page) and do not necessitate a change to our regulations. However, we may consider further changes to the E15 MMR PTD requirements in a future rulemaking that address some or all of the remaining questions raised in AFPM’s petition for reconsideration. We also s ought comment on potential ways of streamlining the PTD language required at § 80.1503. We received one comment that suggeste d substantial changes to the PTD language requirements. For example, the commenter suggested removing most of the downstream RVP language requirements that were intended to inform retail stations of their summertime RVP requirements. The commenter pointe d out that such a streamlining of the PTD requirements in the E15 MMR would significantly reduce compliance costs for industry . We feel that these suggested changes would significantl y alter the PTD language in such a way that may no longer carry out our intent, which is to inform parties throughout the gasoline distribution chain all the way down to the retail station of their applicable regulatory requirements. Such changes are outside the scope of today’s rulemaking, which includes only a minor technic al change to the E15 MMR PTD requirements. Therefore, we are not finalizing such changes at this time. Although we are not engaging in a substantial streamlining of the PTD language required at § 80.1503 in today ’s action, we may revisit the streamlining of E15 MMR PTD language in a future rulemaking.*** E.O. 12866 Review

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Page **109** of **144 D.**  **Changes to Section 80.1504 –**  **Prohibited Acts** In the NPRM, we proposed a slight rewording of § 80.1504(g) to state that blending E10 that has taken advantage of the statutory 1.0 psi RVP waiver during th e summertime RVP control period with a gasoline - ethanol fuel that cannot take advantage of the 1.0 psi RVP waiver (i.e. , a fuel that contains more than 10.0 volume percent ethanol (e.g., E15) or less than 9 volume percent ethanol) would be a violation of the E15 MMR. As originall y written, the language does not clearl y describe the prohibited activity (see 76 FR 44435, 44436, Jul y 25, 2011). We received no direct comments on this specific proposed change. We did, however, receive comments suggesting th at we expand the prohibited activities language in § 80.1504 to allow for the better enforcement of ethanol content requirements at blender pumps. The addition of new prohibited activities to § 80.1504 is outside the intended scope of today ’s action. Therefore we are finalizing the slight rewording of the prohibited activities language of § 80.1504(g) as proposed. **E. Changes to Section 80.1500**  **– Definitions**  In response to the August 17, 2011 petition for reconsideration submitted by N PRA , now AFPM, whi ch requested the Agency , under CAA section 307(d)(7)(B) , reconsider certain portions of the E15 MMR , we granted AFPM’s petition for reconsideration on the issue of the definitions of E10 and E15 in the E15 MMR . AF PM expressed concern that the Agency had defined E10 and E15 in the E15 MMR in a way that would change how ethanol concentrations*** E.O. 12866 Review

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Page **110** of **144** are determined for regulatory purposes. While EPA did not intend the definitions of E10 and E15 in the E15 MMR to have this effect, we propos ed changes to the regulat ions to avoid this perceived impact. Specifically , we propos ed to add a new section , § 80.1509, contain ing language that clearl y states that when ethanol concentrations are measured for compliance testing purposes for 40 CFR p art 80, s ubpart N, the applic able ethanol concentration value will be rounded using the roundi ng procedures at § 80.9. We also proposed modifications to language throughout 40 CFR part 80, subpart N, to better reflect our intentions in defining E10 and E15 in the E15 MMR, including a small revision to § 80.1508. Comments received on this issue generall y supported EPA’s approach to continue to allow the rounding of test results to determine whether fuel samples had adhered to applicable ethanol content samples under § 80.9. One commenter suggested that EPA remove the remaining decimal points to make the point more clearl y that rounding applied to the testing of fuels samples for ethanol content. Another commenter argued that making such a change would allow parties to manufacture gas oline - ethanol blended fuels containing more than 10 volume percent ethanol without taking appropriate measures to ensure that vehicles and engines not covered b y the E15 partial waiver decisions were not misfueled by gasoline - ethanol blended fuels containi ng more than 10 volume percent ethanol. We continue to believe that it is necessary to make our intent clear that parties that blend gasoline - ethanol blended fuels with more than 10 volume percent ethanol and up to 15 volume percent ethanol must adhere to the requirements for such fuels under the E15 MMR. Our approach will continue to enforce ethanol content standards as we have in the past, through the*** E.O. 12866 Review

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Page **111** of **144** appropriate use of rounding procedures specified in the regulations under § 80.9. We do not believe we need to remove the decimal points from the proposed regulatory text since we were careful to ensure that such language onl y appeared in places where the blending of gasoline ethanol blended fuels containing greater than 10 volume percent ethanol would n ecessitate further action by

the party manufacturing such fuel. Therefore, we are finalizing the changes to the definitions of the E15 MMR and the new language under § 80.1509 as proposed. Additionally , in order to remain consistent with requirements for evidence used to determine compliance with requirements in other fuels programs, we are not finalizing the proposed changes to § 80.1508 , which covers the evidence responsible parties and the Agency can use to demonstrate compliance with E15 MMR requirements . **VI. Am**  **endments to the Ultra Low Sulfur Diesel Survey (ULSD)** In the NPRM, EPA proposed a reduction in the minimum sample size for the UL SD survey program from 5,250 annual samples to 1,800 samples. 97 We argued that compliance with the UL SD sulfur content standard has been extremely high; less than 1% of the samples have been in violation in recent years , and the use of the statistical formula in the regulations would result in a sampling rate of several hundred samples per quarter for each of the p ast several years, 97 The ULSD rule includes a provision that deems branded refiners liable for violations of the ULSD sulfur standard that are found at retail outlets displaying the refiner’s brand (40 CFR 80.612). The regulation s include defense provisions. One element of a branded refiner’s defense to such violations is that it must have a periodic sampling and testing program at the retail level (40 CFR 80.613(b) and (d)). The regulations also set forth an alternative samplin g and testing defense element p rovision for branded refiners. This alternative defense element provision (40 CFR 80.613(e)) allow s a branded refiner to meet the company - specific downstream periodic sampling and testing element of its defense by participating in a survey consortium that pays an independent surveyor to sample diesel fuel at retail outlets nationwide. The number of samples that are taken each year is determined by a statistical formula that is based in part on the previous year’s compliance rate. In addition, the regulations set a floor of 5,250 samples that must be taken in an annual survey cycle regardless of the sample number that would be calculated using the regulatory formula.*** E.O. 12866 Review

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Page **112** of **144** instead of 5,250 samples required annuall y. The cost difference between taking several hundred samples a quarter versus taking over 5,000 samples annually is significant. For these reasons we believed that the high compliance rate and the substantial discrepancy between the sampling rate calculated b y the formula in the regulations and the minimum sampling size justified our proposal of a minimum annual sampling rate of 1,800 samples. Public comments received on the proposed reductio n in sampling rate were overwhelming supportive. Most comments suggested that EPA reduce the minimum sampling rate for the ULSD program to the proposed rate of 1,800. However, some commenters suggested that we reduce the sample size even further. Consis tent with most comments, we are finalizing the proposed rate of 1,800 samples per ye ar . Since the program is based on conducting four quarterl y survey s, only

about 450 samples are collected to represent all retail stations offering diesel fuel, over 60,00 0 stations, nationwide each quarter. A further reduction in the sample size may compromise the robustness of the survey program’s ability

to detect non - compliance, even taking into account today’s high compliance rates. Although we acknowledge that a fur ther reduction in the sample size could reduce costs even further, there is a point where the number of samples per ye ar would be so few that the survey would be meaningless relative to robust sampling and testing programs conducted b y each refiner individ uall y. W e feel that a rate of 1,800 samples strikes the correct balance of ensuring compliance with ULSD standards downstream while controlling costs for branded refiners that choose to utilize the UL SD survey program as an alternative affirmative defense .*** E.O. 12866 Review

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Page **113** of **144** Additionally , one commenter, citing high costs, suggested that we remove the alternative affirmative defense altogether. It is important to note that participation in the consortium that conducts the ULSD survey is completely

voluntary

and the program provides each branded refiner an alternative to conducting individual downstream sampling and testing programs. We believe that as long as there is continued interested by some branded refiners to take advantage of the UL SD survey

program alternative affi rmative defense, we should maintain the flexibility to allow those parties the ability to conduct such a survey in lieu of individual downstream sampling and testing programs to establish an affirmative defense to potential downstream violations. Theref ore, today we are reducing the minimum annual sampling size for the UL SD survey program from 5,250 samples to 1,800 samples. However, we will continue to closely monitor national UL SD compliance rates and branded refiner interest in maintaining the ULSD s urvey program to determine whether further reduction in sample sizes is necessary . **VIII. 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 a "significant regulatory

action” because it raises novel legal or policy issues. Accordingl y, EPA submitted this action to the Office of Management and Budget (OMB) for review under*** E.O. 12866 Review

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Page **114** of **144** Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any

changes made in response to OMB recommendations have been documented in the docket for this action. **B. Paperwork Reduction Act**  The information collection requirements in this 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 Request (I CR) document prepared by EPA has been assigned EPA I CR number 2469. 01. A supporting statement for the ICR has been placed in the docket. The information collection is described in the following paragraphs. This action contains recordkeeping and reporting that may affect the following parties under the RFS regulation: RI N generators (producers, importers), obligated parties (refiners), exporters, and parties who own or transact RINs. We estimate that 670 parties may be subject to the information collection. We estimate an annual recordkeeping and reporting burden of 3 .1 hours per respondent. This action contains recordkeeping and reporting that may affect the following parties under the E15 regulation: gasoline refiners, gasoline and ethanol importers, gasoline and ethanol blenders (including terminals and carriers). We estimate that 2,000 respondents may

be subject to the information collection. We estimate an annual recordkeeping and reporting burden of 1.3 hours per respondent. Burden means the total time, effort, or financial resources expended by persons to ge nerate, 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 sy stems for the purpose of collecting, validating, and verifying information, processing and maintaining information, and disclosing*** E.O. 12866 Review

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Page **115** of **144** and providing information; adjust the existing ways to comply with an y 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 in 40 CFR are listed in 40 CFR Part 9 . When this I CR is approved b y OMB, the Agency will publish a technical am endment 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) generall y requi res an agency to prepare a regulatory

flexibility

analy sis 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 e conomic 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 define d as: (1) a small business as defined b y the Small Business Administration’s (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a*** E.O. 12866 Review

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Page **116** of **144** city , county, town, school district or special district with a population of l ess 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 a ction will not have a significant economic impact on a substantial number of small entities. The amendments to the RFS provisions in this final rule allow for additional opportunities for parties to participate in the RFS program b y producing qualifying f uel if they

choose to, clarify

existing provisions, remove the possibility of exemptions for entities that are no longer small entities due to growth in their business, or make relatively minor corrections and modifications to th e se regulations. The vario us changes to the E15 misfueling mitigation regulations are relativel y minor corrections and should not place any additional burden on small entities. The reduction in the required sample size for the voluntary ULSD survey

program should reduce the burden of any small entity that elects to participate in the ULSD survey program.

**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.*** E.O. 12866 Review

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Page **117** of **144** This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory

requirements that might significantly or uniquel y affect small governments. It only

applies to gasoline, diesel fuel , and renewable fuel prod ucers, importers, distributors and marketers and makes relatively minor corrections and modifications to the RFS and diesel 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 app lies to gasoline, diesel, and renewable fuel producers, importers, distributors and marketers . Thus, Executive Order 13132 does not apply to this action. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specificall y solicit ed comment on the proposed action from State and local officials. **F. Executive Order 13175 (Consultation and Coordination with Indian Tribal**  **Governments)** This action does not have trib al implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). It applies to gasoline, diesel fuel , and renewable fuel producers, importers, distributors and marketers. This action does not impose any enforceable duties on*** E.O. 12866 Review

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Page **118** of **144** commun ities of Indian tribal governments. Tribal governments would be affected onl y to the extent they

purchase and use regulated fuels. Although Executive Order 13175 does not apply to this action , EPA specifically solicit ed comment from tribal officials in d eveloping this action . **G. Executive Order 13045: Protection of Children from Environmental Health Risks**  **and S**  **afety Risks** EPA interprets EO 13045 (62 F.R. 19885, April 23, 1997) as appl yi ng only to those regulatory

actions that concern health or safety risks, such that the anal ys is 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 a “significant energy action” as defined in Executive Order 13211 (66 FR 28355 (May

22, 2001)), because it is n ot likely to have a significant adverse effect on the supply , distribution, or use of energy . This action amends existing regulations related to renewable fuel, E15, and ultra - low sulfur diesel. We have concluded that this rule is not likely to have an y adverse energy

effects. In fact, we expect this rule may result in positive effects, because man y of the changes we are finalizing will facilitate the introduction of new renewable*** E.O. 12866 Review

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Page **119** of **144** fuels under the RFS program and have come at the suggestion of industry st akeholders. **I. National Technology Transfer and Advancement Act**  Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104 - 113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus stand ards 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 b y 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.

The regulations permit the use of an anal yt ical method certified b y a voluntary consensus standard body in order for certain producers to comply with applicable registration requirements. Producers of renewable fuel made from energy cane and producers of renewable fuel m ade using two or more feedstocks converted simultaneously , when at least one of the feedstocks does not have a minimum 75% average adjusted cellulosic content , and at least one of which is a pathway producing RINs with a D code of 3 or a D code of 7 using a process described in § 80.1426(f)(1 5 )(i)(A) or § 80.1426(f)(1 5 )(i)(B) , must obtain data used to calculate the cellulosic converted fraction using an anal yt ical method certified by a voluntary

consensus standards body or using a method that would produce reasonabl y accurate results as demonstrated through peer*** E.O. 12866 Review

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Page **120** of **144** reviewed references provided to the third party engineer performing the engineering review at registration. The Agency therefore believes this rulemaking is consistent with the requirements of the N TTAA. **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 rule will not have disproportionatel y 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 b y the RFS regulations and therefore will not cause emissions increases from these sources. **K. Congressional Review Act** *** E.O. 12866 Review

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Page **121** of **144** The Congressional Review Act, 5 U.S.C. 801 et seq., as added b y the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a r

ule 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 r equired 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 day s after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective [ INSERT DATE 30 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER ] . **L. Clean Air Act Section 307(d)**  This rule is subject to Section 307(d) of th e 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 als o provides a mechanism for the EPA to 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. ” An y person seeking to make such a demonstration to the EPA should submi t a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios Building,*** E.O. 12866 Review

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Page **122** of **14 4**  1200 Pennsylvania Ave., NW, Washington, D.C. 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER I NFORMATION CONTACT sec tion, 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, D.C. 20460.

**IX. Statutory Provisions and Legal Authority**  Statutory authority for this action comes from section 211 of the Clean Air Act, 42 U.S.C. 7545. Additional support for the procedural and compliance related aspects of this proposal, including the recordkeeping requirements, comes from sections 114, 208, and 301(a) of the Clean Air Act, 42 U.S. C. sections 7414, 7542, and 7601(a).*** E.O. 12866 Review

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Page **123** of **144 List of Subjects in 40 CFR Part 80**  Environmental protection, Administrative practice and procedure, Agriculture, Air pollution control, Confidential business information, Energy , Forest and Forest Products, Fuel additives, Gasoline, Imports, Motor vehicle pollution, Penalties, Petroleum, Reporting and recordkeeping requirements. Dated:

_____________________________

____________________________________ Gina McCarth y , Administrator*** E.O. 12866 Review

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Page **124** of **144** For the reasons set forth i n the preamble, title 40 , chapter 1 of the Code of Federal Regulations is amended as follows : **PART 80 –**  **REGULATION OF FUELS AND FUEL ADDITIVES** 1. The authority citation for part 80 continues to read as follows: Authority : 42 U.S.C. 7414, 7521, 7542, 7545 and 7601(a). **Subpart I —**  **[Amended]** 2. Section 80.613 is amended by revising the “Where” statement defining the value of “n” in paragraph (e)(4)(v)(A) to read as follows: **§ 80.613 What defenses apply to persons deemed liable for**  **a violation of a p**  **rohibited act under this subpart?**  * * * * * (e) * * * (4) * * * (v) * * * (A) * * * Where: n = minimum number of samples in a year - long survey series. However, in no case shall n be larger than 9,600 or smaller than 1,800. * * * * * **Subpart M —**  **[Amend ed]**  3. Section 80.1401 is amended as follows: a. B y adding the definitions of “Adjusted cellulosic content”, “Agricultural digester,” “N ameplate capacity”, “ R enewable compressed natural gas”, “ R enewable fuel producer” , and “ R enewable liquefied natural g as” in alphabetical order. b. By revising the definitions of “ B iogas” , “ C rop residue” , “Energy cane”, “N aphtha” , “ R enewable biomass” , and “ S mall refinery” in alphabetical order. **§ 80.1401 Definitions.**  * * * * * Ad justed cellulosic content means the percent of organic material that is cellulose, hemicellulose, and lignin. * * * * * Agricultural digester means an anaerobic digester that processes predominantly cellulosic materials , including animal manure, crop residues, and/or separated yard waste.*** E.O. 12866 Review

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Page **125** of **144** * * * * * B iogas means a mixture of hydrocarbons that is a gas at 60 degrees Fahrenheit and 1 atmosphere of pressure that is produced through the anaerobic digestion of organic matter. * * * * * Crop residue means biomass left over from the harvesting or processing of planted crops from existing agricultural land and any biomass removed from existing agricultural land that facilitates crop mana gement (including biomass removed from such lands in relation to invasive species control or fire management), whether or not the biomass includes any portion of a crop or crop plant. Biomass is considered crop residue only if the use of that biomass for the production of renewable fuel has no significant impact on demand for the feedstock crop, products produced from that feedstock crop, and all substitutes for the crop and its products, nor any other impact that would result in a significant increase in direct or indirect GHG emissions. * * * * * Energy cane means a complex hy brid in the Saccharum genus that has been bred to maximize cellulosic rather than sugar content. For the purposes of this section : (1) E nergy

cane excludes the species Saccharum sp ontaneum , but includes hy brids derived from S. spontaneum that have been developed and publicl y released by USDA ; and (2) Energy

cane only

includes cultivars that have, on average, at least 75% adjusted cellulosic content on a dry mass basis. * * * * * Nameplate capacity means the peak design capacity of a facility

for the purposes of registration of a facility

under § 80.1450(b)(1)(v )( C ). Naphtha means a blendstock or fuel blending component falling within the boiling range of gasoline which is composed of only hydrocarbons, is commonly or commerciall y known as naphtha and is used to produce gasoline through blending . * * * * * Renewable biomass means each of the following (including any incidental, de minimis contaminants that are impractical to remove and are related to customary feedstock production and transport): (1) Planted crops and crop residue harvested from existing agricultural land cleared or cultivated prior to December 19, 2007 and that was nonforested and either activel y managed or fallow on December 19, 2007. (2) Planted trees and tree residue from a tree plantation located on non - federal land (including land belonging to an Indian tribe or an Indian individual that is held in trust by the*** E.O. 12866 Review

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Page **126** of **144** U.S. or subject to a restriction agains t alienation imposed by the U.S.) that was cleared at any time prior to December 19, 2007 and activel y managed on December 19, 2007. (3) Animal waste material and animal by products. (4) Slash and pre - commercial thinnings from non - federal forestland (including forestland belonging to an Indian tribe or an Indian individual, that are held in trust b y the United States or subject to a restriction against alienation imposed by the United States) that is not ecologically sensitive forestland. (5) Biomass (org anic matter that is available on a renewable or recurring basis) obtained from within 200 feet of buildings and other areas regularl y occupied b y people, or of public infrastructure, in an area at risk of wildfire. (6) Algae. (7) Separated yard waste or food waste, including recycled cooking and trap grease, and materials described in § 80.1426(f)(5)(i). Renewable compressed natural gas (CNG) means biogas or biogas - derived pipeline quality gas that is compressed for use as transportation fuel and meets the definition of renewable fuel. * * * * * Renewable liquefied natural gas (LNG) mean s biogas or biogas - derived pipeline quality gas that goes through the process of liquefaction in which it is cooled below its boiling point , and which meets the defini tion of renewable fuel . * * * * * Small r efinery means a refinery for which the average aggregate dail y crude oil throughput for calendar year 2006 and subsequent years (as determined b y dividing the aggregate throughput for the calendar ye ar b y the number of day s in the calendar year) does not exceed 75,000 barrels. * * * * * 4. Section 80.1415 is amended by revising paragraphs (b)(5) and (c)(1) to read as follows: **§ 80.1415 How are equivalence values assigned to renewable fuel?**  (b) * * **** E.O. 12866 Review

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Page **127** of **144** (5) 77, 000 Btu (lower heating value) of compressed natural gas (CNG) or liquefied natural gas (LNG) shall represent one gallon of renewable fuel with an equivalence value of 1.0. * * * * * (c) * * * (1) The equivalence value for renewable fuels described in pa ragraph (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. T his 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). * * * * * 5. Section 80.1416 is amended by revis ing paragraph (d) to read as follows: **§ 80.141 6**  **Petition process for evaluation of new renewable fuels pathways.** * * * * * (d) A D code must be approved prior to the generation of RINs for the fuel in question. During petition review EPA will evaluate whether a feedstock meets the 75% cellulosic content threshold allowing cellulosic RI Ns to be generated for the entire fuel volume produced. The Administrator may

ask for additional information to complete this evaluation. * * * * * 6 . Section 80.1426 i s amended as follows: a. By

revising rows K, L, M, N, P, and Q of Table 1 to § 80.1426. b. By

a dding a new row T to Table 1 to § 80.1426. c. By

r evisi ng paragraphs (f)(10) and (f)(11). d. By

adding new paragraph s (f)(1 5 ) and (f)( 16). **§ 80.1426 How are RINs generated and assigned to batches of renewable fuel by renewable fuel producers or importers?**  * * * * * (f) * * * (1) * * * **Table 1 to § 80.1426** **—**

**Applicable D Codes for Each Fuel Pathway for Use in Generating RINs** *** E.O. 12866 Review

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Page **128** of **144** Fuel type Fe edstock Production process requirements D - Code * * * * * * * K Ethanol C rop residue, slash, pre - commercial thinning and tree residue, switchgrass, miscanthus, energy cane, Arundo donax, Pennisetum purpureum, separated yard waste, separated MSW, cellulosi c components of separated food waste; and cellulosic components of annual cover crops, Any process that convert s cellulosic

biomass to fuel 3

L Cellulosic diesel, jet fuel and heating oil C rop residue, slash, pre - commercial thinnings and tree residue, sw itchgrass, miscanthus, energy cane, Arundo donax, Pennisetum purpureum; separated yard waste, separated MSW, and cellulosic components of separated food waste; and cellulosic components of annual cover crops Any process that convert s cellulosic

biomass to fuel 7

M Renewable gasoline and renewable gasoline blendstock C rop residue, slash, pre - commercial thinnings, tree residue, separated yard waste, separated MSW, cellulosic components of Catalytic Pyrolysis and Upgrading,

Gasification and Upgrading, Thermo Catalytic Hydrodeoxygenation and Upgrading, Direct Biological Conversion, Biological Conversion and Upgrading utilizing natural gas, biogas, and/or biomass as the only process energy sou rces and that convert s cellulosic 3*** E.O. 12866 Review

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Page **129** of **144** separated food waste; and cellulosic components of annual cover crops biomass to fuel ; a ny process utilizing

biogas and/or biomass as the only process energy sources which convert s cellulosic biomass to fuel N Nap h tha S witchgrass, miscanthus, energy cane, Arundo donax, and Pennisetum pu rpureum Gasification and upgrading processes

that convert s cellulosic biomass to fuel 3

* * * * * * * P Ethanol, renewable diesel, jet fuel, heating oil, and naphtha The non - cellulosic portions of separated food waste and non cellulosic components of ann ual cover crops Any 5

Q Renewable Compressed Natural Gas, Renewable Liquefied Natural Gas , Renewable Electricity Biogas from landfills, municipal waste water treatment facility digesters, agricultural digesters, and separated MSW digesters, and biogas from the cellulosic components of biomass processed in other waste digesters Any 3

* * * * * * * T Renewable Compressed Natural Gas, Renewable Liquefied Natural Gas , and Renewable Electricity Biogas from waste digesters Any 5*** E.O. 12866 Review

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Page **130** of **144** * * * * * (10)(i) For purpos es of this section, electricity that is only distributed via a closed, private, non commercial s ys tem is considered renewable fuel and the producer may generate RINs if all of the following appl y: (A) The electricity

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 b y the Administrator . (B) The electricity producer has entered into a written contract for the sale or documented use of a specific quantity of renewable electricity as transportation fuel , or has obtained affidavits from all parties selling or using the electricity as transportation fuel. (C) The electricity is used as a transportation fuel and for no other purposes . (ii) For purposes of this section, CNG or LNG produced from biogas that is only distributed via a closed, private, non - commercial sy stem is considered renewable fuel and the producer may

generate RINs if all of the following appl y: (A) The CNG/LNG 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 b y the Administrator . (B) The CNG/LNG distributor has entered into a written contract for the sale or use of a specific quantity of CNG/L NG to be used as for transportation f uel , or obtained affidavits from all parties selling or using the CNG/LNG as transportation fuel. (C) The CNG/LNG is used as a transportation fuel and for no other purposes. (iii) A producer of electricity that is generated b y co - firing a combination of re newable biomass and fossil fuel may generate RINs onl y 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, electricity that is introduced into a co mmercial distribution sy stem (transmission grid) is considered renewable fuel and the producer may generate RINs if all of the following appl y : (A) The electricity

is produced from renewable biomass and qualifies for a D code in Table 1 of this section or has received approval for use of a D code b y the Administrator . (B) The electricity producer has entered into a written contract fo r the sale or documented use of a specific quantity of renewable electricity as transportation fuel, or has obtained affidavits from all parties selling or using the electricity as transportation fuel. (C) The quantity of electricity for which RINs were generated was sold for use as transportation fuel and for no other purpose . (D) The renewable electricity was loaded onto and withdrawn from a physically connected transmission grid . (ii) For purposes of this section, CNG or LNG produced from biogas that is introduced into a commercial distribution system is considered renewable fuel and the producer may generate RINs if all the following appl y : (A) The fuel is produced from renewable biomass and qualifies for a D code in Table 1 of this section or has received approval for use of a D code b y the Administrator . (B) The CNG/LNG distributor has entered into a written contract for the sale or use of a specific quantity of renewabl e CNG/LNG, taken from a commercial distribution system (e.g., phy sicall y connected pipeline, barge, truck, rail) , for use as a transportation fuel, or has obt ained affidavits from all par

ties selling or using the CNG/L NG taken from a commercial distributio n sy stem as a transportation fuel ;*** E.O. 12866 Review

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Page **131** of **144** (C) The quantity of CNG/L NG for which RINs were generated was sold for use as transportation fuel and for no other purposes . (D) The biogas/CNG/LNG was injected into and withdrawn from the same commercial distribution sys tem. (E) The biogas/CNG/LNG that is ultimately withdrawn from the commercial distribution sy stem for use as transportation fuel is withdrawn in a manner and at a time consistent with the transport of the biogas/CNG/LNG between the injection and withdrawal points. (F) The volume and heat content of biogas injected into a pipeline and the volume of biogas withdrawn to make a transportation fuel are measured by continuous metering. (iii) The fuel described in paragraphs (f)(11)(i) and (ii) of this section is considered produced from renewable biomass if all of the following appl y : (A) The amount of fuel sold for use as transportation fuel corresponds to the amount of fuel derived from renewable biomass that the producer contracted to have placed into the comme rcial distribution sy stem . (B) No other party relied upon the contracted volume of biogas /CNG/LNG or renewable electricity for the creation of RINs. (iv) For renewable electricity that is generated b y co - firing a combination of renewable biomass and fossi l 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. * * * * * (1 5) Application of § 80.1426(f)(3)(vi) to producers generating D3 or D7 RINs . (i) If a producer seeking to generate D code 3 or D code 7 RINs produces a single ty pe of renewable fuel using two or more feedstocks converted simultaneously , and at least one of the feedstocks does not have a minimum 75% average adjusted cellulosic content, one of the following additional requirements apply :

(A) If the producer is using a thermochemical process to convert cellulosic biomass into cellulosic biofuel , the producer is subject to additional registration requirements under § 80.1450(b)(1)(xii )(A). (B) If the producer is using any process other than a thermochemical process, or is using a combination of processes, the producer is subject to additional r egistration requirements under § 80.1450(b)(1)(xii)(B) and r eporting requirements under § 80. 145 1 (b)(1)(ii)(U ) (ii) [Reserved] (16) Renewable fuel produced from crop residue. Producers generating RINs for qualifying renewable fuel utilizing crop residue as feedstock under Pathway K or Pathway L must meet all of the following conditions (in addi tion to any other applicable requirements): (i) Registration requirements under § 80.1450(b)(1)(xiv). (ii) Reporting requirements under § 80.1451(b)(1)(ii)(V). (iii) Recordkeeping requirements under § 80.1454 (r). 7. Section 80.1440 is amended as follow s:*** E.O. 12866 Review

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Page **132** of **144** a. By r evising the s ection heading. b. By r evising paragraph (a) . c. By revising paragraph (d) . d. By revising paragraph (e) . **§ 80.1440 What are the provisions for blenders who handle and blend less than 250,000**  **gallons of renewable fuel per year?** ( a) Renewable fuel blenders who handle and blend less than 250,000 gallons of renewable fuel per ye ar, and who do not have one or more reported or unreported Renewable Volume Obligations, are permitted to delegate their RIN - related responsibilities to the p arty directly upstream of them who supplied the renewable fuel for blending. * * * * * (d) Renewable fuel blenders who handle and blend less than 250,000 gallons of renewable fuel per ye ar 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 250,000 gallons of renewable fuel per ye ar and who do not opt to delegate their RIN - related responsibilities, or own RI Ns, will be subject to all requirements stated in paragraph (b) of this section, and all other applicable requirements of this subpart M. 8 . Section 80.1441 is amended by adding paragraph (e)(2)(iii) to read as follows: **§ 80.1441 Small refinery exemp**  **tion.** * * * * * (e) * * * (2) * * * (iii) In order to qualify for an extension of its small refinery exemption, a refinery must meet the definition of “small refinery” in § 80.1401 for all full calendar years between 2006 and the date of submission of the petition for an extension. * * * * * 9 . Section 80.1450 is amended as follows: a. By

revising paragraph (b)(1)(ii). b. By

r evising paragraph s (b)(1)(v)(C) and (b)(1)(v)(D) , and by adding paragraph (b)(1)(v)(E). c. By

a dding paragraphs (b)(1) ( x ii) through ( x i v ) . d. By

revising paragraph (d)(2). e. By

amending paragraph (g). f. By

a dding paragraph (h) . **§ 80.1450**  **What are the registration requirements under the RFS program?***** E.O. 12866 Review

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Page **133** of **144** * * * * * (b) * * * (1) * * * (ii) A description of the facility ’s renewable fuel or ethanol production processes. (A) For registrations indicating production of D code 3 or D code 7 RINs using feedstocks listed in rows K, L , M, and N of Table 1 to § 80.1426, the producer must demonstrate the ability to convert cellulo sic components of feedstock into fuel by providing all of the following: ( 1 ) A process diagram with all relevant unit processes labeled and a designation of which unit process is capable of performing cellulosic treatment, including required inputs and out

puts at each step. ( 2 ) A description of the cellulosic biomass treatment process , including required inputs and outputs used at each step . ( 3 ) A description of the mechanical, chemical and biochemical mechanism s by which cellulosic materials can be convert ed to biofuel products. (B) [Reserved] * * * * * (v) * * * (C)( 1 ) 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 specifi ed in the air permits specified in paragraphs (b)(1)(v)(A) and (b)(1)(v)(B) of this section, as appropriate. ( 2 ) For facilities not claiming the exemption described in § 80.1403(c) or (d) which are exempt from air permit requirements and for which insu fficient production records exist to establish actual peak capacity , copies of document s demonstrating the facility ’s nameplate capacity , as defined in § 80.1401. (D) For all facilities producing renewable electricity or fuel from biogas , submit all re levant information in § 80.1426(f)(10) or (11), including : ( 1 ) Copies of all contracts or affidavits, as applicable, that follow the track of the biogas/CNG/LNG or renewable electricit y from its original source, to the producer that processes it i nto renewable fuel, and finally to the end user that will actually use the renewable electricity or the renewable CNG/L NG for transportation purposes. ( 2 ) Specific quantity , heat content , and percent efficiency of transfer, as applicable, and any conversion factors , for the renewable fuel derived from biogas . (E) Such other records as may be requested by

the Administrator. * * * * * (xii) (A) A producer of renewable fuel or a foreign ethanol producer seeking to generate D code 3 or D code 7 RINs that produces a single type of rene wable fuel using two or more feedstocks converted simultaneously , where at least one of the feedstocks does not have a minimum 75% average adjusted cellulosic content, and who uses onl y a thermochemical process to convert feedstock into renewable fuel, mus t provide all the following : ( 1 ) D ata showing the average adjusted cellulosic content of the feedstock(s) to be used to produce fuel, based on the average of at least three representative samples .*** E.O. 12866 Review

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Page **134** of **144** Cellulosic content data must come from an anal yt ical method certified b y a voluntary consensus standards body or using a method that would produce reasonabl y accurate results as demonstrated through peer reviewed references provided to the third party engineer performing the engineering review at registration . Samples must be of representative feedstock from the primary feedstock supplier that will provide the fuel producer with feedstock subsequent to registration. ( 2 ) Producers that want to change or add new feedstock(s) after initial registration, must update their registration and provide EPA with data in accordance with paragraph (b)(1)(xii)(A) of this section indicating the average adjusted cellulosic content of the new feedstock. (B) A producer of renewable fuel or a foreign ethanol producer seeking to gene rate D code 3 or D code 7 RINs that produces a single type of renewable fuel using two or more feedst ocks converted simultaneously , where at least one of the feedstocks does not have a minimum 75% adjusted cellulosic content, and who uses a process other than a thermochemical process or a combination of processes to convert feedstock into renewable fuel , must provide all the following: ( 1 ) The expected overall fuel yield , based on available data, which shall be calculated according to the following formu la : Where: Y = Overall fuel yi eld per batch . V RI N, CB = RI N volume, in gallons, for use in determining the number of gallon - RI Ns that shall be generated for the cellulosic biofuel portion of the

batch with a D code of 3 . V RI N, BBD = RI

N volume, in gall ons, for use in determining the number of gallon - RI Ns that shall be generated for the biomass - based diesel portion of the

batch with a D code of 4 . V RI N, AB = RIN volume, in gallons, for use in determining the number of gallon - RI Ns that shall be generated for the advanced biofuel portion of the

batch with a D code of 5 . V RI N, RF = RIN volume, in gallons, for use in determining the number of gallon - RI Ns that shall be generated for the renewable fuel portion of the batch

with a D code of 6 . V RI N, CD = RIN volume, in gallons, for use in determining the number of gallon - RI Ns that shall be generated for the cellulosic diesel portion of the

batch with a D code of 7 . M = Mass of all feedstock, in pounds, measured on a per - batch basis . ( 2 ) The cellulosic Converte d Fraction (CF) that will be used for generating RI Ns under § 80.1426(f)(3).*** E.O. 12866 Review

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Page **135** of **144** ( 3 ) C hemical analy sis data supporting the calculated cellulosic Converted Fraction and a discussion of the possible variability that could be expected between reporting periods p er § 80.1451(b)(1)(ii)(U)( 1 ). Data used to calculate the cellulosic CF must be representative and obtained using an anal yt ical method certified b y a voluntary

consensus standards body, or using a method that would produce reasonabl y accurate results as de monstrated through peer reviewed references provided to the third party engineer performing the engineering review at registration . ( 4 ) A description and calculations showing how the dat a were used to determine the cellulosic Converted Fraction. (xiii ) For a producer of renewable fuel made from energy cane: (A) D ata showing that the average adjusted cellulosic content of each energy cane cultivar they

intend to use is at least 75%, based on the average of at least three representative samples of each cultivar. Cultivars must be grown under normal growing conditions and consistent with acceptable farming practices. Samples must be of feedstock from a feedstock supplier that the fuel producer intends to use to supply

feedstock for their production proc ess and must represent the feedstock supplier’s range of growing conditions and locations . Cellulosic content data must come from an anal yt ical method certified by a voluntary

consensus standards body or using a method that would produce reasonabl y accurat e results as demonstrated through peer reviewed references provided to the third party engineer performing the engineering review at registration . (B) Producers that want to change or add new energy cane cultivar(s) after initial registration must update their registration and provide EPA with data in accordance with paragraph (b)(1)(xiii) (A ) of this section demonstrating that the average adjusted cellulosic content for an y new cultivar is at least 75%. Cultivars that do not meet this requirement are cons idered sugarcane for purposes of Table 1 to § 80.1426. (xiv) For a producer of renewable fuel made from crop residue or a foreign renewable fuel producer making ethanol from crop residue and seeking to have it sold as renewable fuel, provide all the fo llowing information: (A) A list of all feedstocks the producer intends to utilize as crop residue. (B) A written justification which explains why each feedstock a producer lists according to § 80. 1450(b)(1)(xiv)(A) meets the definition of “crop residue” pe r § 80.1401 . * * * * * (g) Registration Procedures. (1) Registration shall be on forms, and following policies, established by

the Administrator. (2) English language registrations

–Any document submitted to EPA under this section 80.1450 must be submitted in English, or shall include an English translation.*** E.O. 12866 Review

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Page **136** of **144** (h) De activation of Company Registration. (1) EPA may de activate a company ’s registration, using the process in paragraph (h)(2) of this section, if an y of the following criteria are met : (i) The compan y has reported no activity in EMTS for twenty- four consecutive months. (ii) The compan y has failed to comply with the registration requirements of this section . (iii) The compan y has failed to submit any required report within thirty day s of the required submission date under § 80.1451 . (iv) The attest engagement required under § 80.1454 has not been received within thirty day s of the required submission date. (2) EPA will use the following process whenever it decides to de activate the registratio n of a compan y: (i) EPA will provide written notification to the responsible corporate officer identifying the reasons or deficiencies of why EPA intends to de activate the company’s registration. The compan y will have fourteen calendar days from the dat e of the notification to correct the deficiencies identified or explain why there is no need for corrective action. (ii) If the basis for EPA’s notice of intent to de activate registration is the absence of EMTS activity , a stated intent to engage in a ctivity reported through EMTS will be sufficient to avoid de activation of registration. (iii) If the compan y does not respond, does not correct identified deficiencies, or does not provide an adequate explanation regarding why such correction is not necessary within the time allotted for response, EPA may de activate the company ’s registration within further notice to the party . (3) Impact of registration de activation. (i) A compan y whose registration is de activated shall still be liable for violation of an y requirements of this subpart. (ii) A compan y whose registration is de activated will not be listed on any public list of activel y registered companies that is maintained by EPA. (iii) A compan y whose registration is de activated w ill not have access to any of the electronic reporting s ys tems associated with the renewable fuel standard program, including the EPA Moderated Transaction System (EMTS). (iv) A compan y whose registration is de activated must submit any corrections of d eficiencies to EPA on forms, and following policies, established by EPA. (v) If a compan y whose registration has been de activated wishes to re - register, they may initiate that process b y submitting a new registration, consistent with paragraphs (a) through(c) of this section. 10 . Section 80.1451 is amended to read as follows: a. By

revising paragraph (b)(1)(ii)(Q) . b. By

redesignating paragraph (b)(1)(ii)(U) as paragraph (b)(1)(ii)(W). c. By

adding a new paragraph (b)(1)(ii)(U). d. By

adding paragraph (b)(1)(ii)(V). e. By adding paragraph ( i ) .*** E.O. 12866 Review

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Page **137** of **144 §**  **80.1451 What are the reporting requirements under the RFS program?** 

* * * * * (b) * * * (1) * * * (ii) * * * (U) Producers generating D code 3 or D cod e 7 RINs using feedstocks listed in rows K, L , M, and N of Table 1 to § 80.1426, for fuel produced from two or more feedstocks converted simultaneously , at least one of which has less than 75% average adjusted cellulosic content, and using a process other than a thermochemical process or a combination of processes shall report all of the following: ( 1 ) The cellulosic converted fraction as determined b y collecting new representative process data and performing the same chemical analy sis method accepted at registration . Producers shall calculate this information on an annual basis or within 10 business day s of generating every 500,000 gallons of cellulosic fuel, whichever is more frequent, and report quarterl y. Reports shall include all values used to cal culate feedstock energy according to § 80.1426(f)(3)(vi). If new data shows that the cellulosic Converted Fraction is different than previousl y calculated, the formula used to generate RINs at § 80.1426(f)(3) must be updated as soon as practical but no lat er than 5 business days after the producer receives the updated data. ( 2) If the cellulosic Converted Fraction deviates from the previously calculated cellulosic Converted Fraction by 10% or more then the producer must notify EPA within 5 business day s o f receiving the new data and must adjust the formula used to generate RINs at § 80.1426(f)(3) for all fuel generated as soon as practical but no later than 5 business day s after the producer receives the new data . If new testing data results in a change to the cellulosic CF, only RINs generated after the new testing data were received, subject to the 5 - day allowance, would be affected. (V) Producers of renewable fuel using crop residue as a feedstock shall report all of the following according to the sche dule specified in paragraph (f)(2) of this section : ( 1 ) The specific feedstock(s) utilized to produce renewable fuel under a pathway allowing the use of crop residue as feedstock. ( 2 ) The total quantity of each specific feedstock used to produce renewable fuel . ( 3 ) T he t otal amount of qualifying renewable fuel produced under the crop residue pathway(s) in that quarter. (W) Any additional information the Administrator may require. * * * * **** E.O. 12866 Review

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Page **138** of **144** ( i ) English language reports. Any document submitted to EPA under § 80.1451 must be submitted in English, or shall include an English translation. 1 2 . Section 80.1454 is amended as follows: a. By

r evising paragraph (b)(4)(i) . b. By

a dding paragraph (b)( 9 ) . c. By

r evising paragraph (f)(3)(i) . d. By

r evising paragrap h (k)(1) . e. By

a dding a new paragraph (q). f. By

adding a new paragraph (r). **§ 80.1454**  **What are the recordkeeping requirements under the RFS program?** ***** ***** ***** ***** ***** (b) * * * (4) * * * (i) A list of the RINs owned, purchased, sold, separated, retired, or reinstated. * * * * * ( 9 ) Records related to any volume of renewable fuel where RINs were not generated by the renewable fuel producer or importer pursuant to § 80.1426(c) . * * * * * (f) * * * (3) * * * (i) A list of the RINs owned, purcha sed, sold, separated, retired, or reinstated. * * * * * (k)(1) Biogas and electricity in pathways involving feedstocks other than grain sorghum. A renewable fuel producer that generates RINs for renewable CNG , renewable LNG or renewable electricity pursuant to § 80.1426(f)(10) or (11), or that uses process heat from biogas to produce renewable fuel pursuant to § 80.1426(f)(12) shall keep all of the following additional records: (i) Contracts and documents memorializing the sale of renewable CNG , renewable LNG 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 process heat to make renewable fuel as relied upon in § 80.1426(f)(12) and the transfer of title of the biogas /CNG/L NG o r renewable electricity from the point of biogas production to the facility which sells or uses the fuel for transportation purposes. (i i ) Documents demonstrating the volume and energy content of biogas /CNG/L NG , or kilowatts of renewable electricity, relie d upon under § 80.1426(f)(10) that was delivered to the facility which sells or uses the fuel for transportation purposes. ( iii ) Documents demonstrating the volume and energy content of biogas /CNG/LNG , or kilowatts of renewable electricity, relied upon und er § 80.1426(f)(11), or biogas relied upon under § 80.1426(f)(12) that was placed into the commercial distribution .*** E.O. 12866 Review

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Page **139** of **144** ( i v) Documents demonstrating the volume and energy content of biogas relied upon under § 80.1426(f)(12) at the point of distribution. (v) Af fidavits , EPA approved documentation, or data from a real - time electronic monitoring sy stem, confirming that the amount of the biogas/CNG/LNG or renewable electricity relied upon under § 80.1426(f)(10) and (11) was used for transportation purp oses only , and for no other purpose. The renewable fuel producer shall obtain affidavits or monitoring s ys tem data under this paragraph , at least once per calendar quarter. (vi) The biogas or renewable electricity producer's Compliance Certification r equired under Title V of the Clean Air Act. (vii) Such other records as may be requested b y the Administrator. * * * * * (q) English language records. Any document requested by

the Administrator under this section must be submitted in English, or shall include an English translation. (r) Prod ucers of renewable fuel using crop residue shall keep records of all of the following: (1) The specific crop residue feedstock(s) utilized to produce renewable fuel for each batch of renewable fuel produced. (2) The total quantity of each specific crop res idue feedstock used for each batch. (3) Total amount of fuel produced under the crop residue pathway for each batch. 1 3 . Section 80.1463 is amended by adding paragraph (d) to read as follows: **§80.1463 What penalties apply under the RFS program?** ***** ***** ***** ***** ***** (d) An y person liable under § 80.1461(a) for a violation of § 80.1460(b)(1) - (4) or (6) is subject to a separate day

of violation for each day that an invalid RI

N remains available for an obligated party or renewable fuel exporter to demonstrate complia nce with the RFS program. **Subpart N —**  **[Amended]** 1 5 . Section 80.1500 is amended by revising the definitions of “ E10 ” , “ E15 ” , and “ EX ” to read as follows: **§ 80.1500**  **Definitions.** * * * * * E10 means a gas oline - ethanol blend that contains at least 9 and no more than 10 volume percent ethanol. E15 means a gasoline - ethanol blend that contains greater than 10 volume percent ethanol and not more than 15 volume percent ethanol.*** E.O. 12866 Review

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Page **140** of **144** EX means a gasoline

– ethanol blen d that contains less than 9 volume percent ethanol where X equals the maximum volume percent ethanol in the gasoline - ethanol blend. * * * * * 1 6 . Section 80.1501 is amended as follows: a. B y revising the section heading. b. By

revising paragraph (a) introductory text . c. By

revising paragraphs (b)(3)(i) , (b)(3) (iv), and (b)(4)(ii) . **§ 80.1501**  **What are the labeling requirements that apply to retailers and wholesale**

**purchaser -**  **consumers of gasoline -**  **ethanol blends that contain greater than 10volume per**  **cent ethanol and not more than 15 volume percent ethanol?** (a) Any

retailer or wholesale purchaser - consumer who sells, dispenses, or offers for sale or dispensing E15 shall affix the following conspicuous and legible label to the fuel dispenser: * * * * * (b) * * * (3) * * * (i) The word “ATTENTION” shall be capitalized in 20 - point, orange, Helvetica

Neue LT 77 Bold Condensed font, and shall be placed in the top 1.25 inches of the label as further described in paragraph (b)(4 ) (iii) of this section . * * * * * (iv) The words “Use onl y in” shall be in 20 - point, left - justified, black, Helvetica Bold font in the bottom 1.875 inches of the label. (4) * * * (ii) The background of the bottom 1.875 inches of the label shall be orange. * * * * * 1 7 . Section 80. 1502 is amended as follows: a. By revising paragraphs (b)(3)(iii)(A), (b)(3)(iv) introductory text , (b)(4)(iv)(B), and (b)(4)(v)(A) . b. By

revising paragraphs (c)(4) and (c)(6) . **§ 80.1502**  **What are the survey requirements related to gasoline -**  **ethanol blen ds?**  * * * * * (b) * * * (3) * * * (iii) * * * (A) Samples collected at retail outlets shall be shipped the same day the samples are collected via ground service to the laboratory and anal yz ed for oxygenate content. Samples collected at a dis penser labeled E15 in any manner, or at a tank serving such a dispenser, shall also be analyzed for RVP during the high ozone season defined in § 80.27(a)(2)(ii) or an y SIP approved or promulgated under §§ 110 or 172 of the Clean Air Act . Such anal ys is sh all be completed within 10 day s after receipt of the sample in the*** E.O. 12866 Review

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Page **141** of **144** laboratory . Nothing in this section shall be interpreted to require RVP testing of a sample from an y dispenser or tank serving it unless the dispenser is labeled E15 in any manner. * * * * * (iv) Inthe case of any test that yields a result that does not match the label affixed to the product (e.g., a sample greater than 15 volume percent ethanol dispensed from a fuel dispenser labeled as “E15” or a sample containing greater than 10 volume percent ethanol and not more than 15 volume percent ethanol dispensed from a fuel dispenser not labeled as “E15”), or the RVP standard of § 80.27(a)(2) or any SIP approved or promulgated under §§ 110 or 172 of the Clean Air Act , the independent survey association shall, within 24 hours after the laboratory has completed anal ys is of the sample, send notification of the test result as follows: * * * * * (4) * * * (iv) * * * (B) In the case of an y retail outlet from which a sample of gasoline was coll ected during a survey

and determined to have an ethanol content that does not match the fuel dispenser label (e.g. , a sample greater than 15 volume percent ethanol dispensed from a fuel dispenser labeled as “E15” or a sample with greater than 10 volume percent ethanol and not more than 15 volume percent ethanol dispensed from a fuel dispenser not labeled as “E15”) or determined to have a dispenser containing fuel whose RVP does not comply with § 80.27(a)(2) or any SIP approved or promulgated under §§ 110 or 172 of the Clean Air Act , that retail outlet shall be included in the subsequent survey . * * * * * (v) * * * (A) The minimum number of samples to be included in the survey plan for each calendar year shall be calculated as follows: Where: n = M ini mum number of samples in a year - long survey series. However, in no case shall n be smaller than 7,500. Z  = Upper percentile point from the normal distribution to achieve a

one - tailed 95% confidence level (5%  - level). Thus, Z  equals 1.645. Z  = Uppe r percentile point to achieve 95% power. Thus, Z  equals

1.645. 1 

###  = T he maximum proportion of non - compliant stations for a region to be deemed compliant.

In this test, the parameter needs to be 5% or greater, i.e., 5% or more of the stations , within a stratum such that the region is considered non - compliant. For this survey , 1 

###  will be 5%.
o  = T he underl yi ng proportion of non - compliant stations in a sample. 

#   

#   

#   n b a n 

### Su F F St arc arc Z Z n        ) )] sin( ) sin( [ * 4 ( 2 0 1 2 

### 

  *** E.O. 12866 Review

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Page **142** of **144** For the first survey

plan, o  will be 2.3%. For subsequent survey plans, o  will be the average of the proportion of stations found to be non - compliant over the previous four survey s. Stn = Number of sampling strata. For purposes of this survey program, Stn equals 3. F a = A djustment factor for the number of extra samples required to

compensate for collected samples that cannot be included in the survey , based on the number of additional samples required during the previous four survey s. However, in no case shall the value of F a be smaller than 1.1. F b = A djustment factor for the number of samples required to resample

each retail outlet with test results exceeding the labeled amount (e.g. , a sample greater than 15 volume percent ethanol dispensed from a fuel dispenser labeled as “E15”, a sample with greater than 10 volume percent ethanol and not more than 15 volume percent ethanol dispensed from a fuel dispenser not labeled as “E15”), or a sample dispensed from a fuel dispenser labeled as “E15” with greater than the applicable seasonal and geographic RVP pursuant to § 80.27, based on the rate of resampling required during the previous four survey s. However, in no case shall the value of F b be smaller than 1.1. Sun = Number of survey s per year. For purposes of this survey program, Sun equals 4. * * * * * (c) * * * (4) The survey program plan must be sent to the following address: Director, Compliance Division, U.S. Environmental Protection Agency , 1200 Pennsylvania Ave., N.W. Mail Code 6506J, Washington, D.C. 20460. * * * * * (6) The appro ving official for a survey plan under this section is the Director of the Compliance Division, Office of Transportation and Air Quality. * * * * * 1 8 . Section 80.1503 is amended as follows:

a. B y revising paragraphs (a)(1)(vi)(B) and (a) (1)(vi)(C). b. By

revising paragraphs (b)(1)(vi)(B) through (D) . **§ 80.1503**  **What are the product transfer document requirements for gasoline -**  **ethanol**

**blends, gasolines, and conventional blendstocks for oxygenate blending subject to this subpart?**  (a) * * * (1 ) * * * (vi) * * * (B) * * **** E.O. 12866 Review

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Page **143** of **144** ( 1 ) “Suitable for the special RVP provisions for ethanol blends that contain between 9 and 10 vol % ethanol.”. ( 2 ) “The RVP of this blendstock/gasoline for ox ygenate blending does not exceed [Fill in appropriate value] psi.”. ( 3 ) “The use of this blendstock/gasoline to manufacture a gasoline - ethanol blend containing an ything other than between 9 and 10 volume percent ethanol may cause a summertime RVP violation.” . (C) ( 1 ) For gasoline not described in paragraph (a) (1) (vi)(B) of this section, information regarding the suitable ethanol content, stated in the following format: “Suitable for blending with ethanol at a concentration of no more than 15 vol % ethanol.” . ( 2 ) The requirements in paragraph (a)(1) of this section do not apply to reformulated gasoline blendstock for ox ygen ate blending, as defined in § 80.2(kk), which is subject to the product transfer document requirements of § § 80.69 and 80.77. ( 3 ) Except for transfers to truck carriers, retail ers, or wholesale purchaser consumers, product codes may be used to convey

the information required under paragraph (a)(1) of this section if such codes are clearl y understood b y each transferee. (b) * * * (1) * * * (vi) * * * (B) For gasoline containing less than 9 volume percent ethanol, the following statement: “EX

– Contains up to X% ethanol. The RVP does not exceed [fill in appropriate value] psi.” The term X refers to the maximum volume percent ethanol present in the gasoline. (C) For gasoline co ntaining between 9 and 10 volume percent ethanol (E10), the following statement: “E10: Contains between 9 and 10 vol % ethanol. The RVP does not exceed [fill in appropriate value] psi. The 1 psi RVP waiver applies to this gasoline. Do not mix with gaso line containing any thing other than between 9 and 10 vol % ethanol.” . (D) For gasoline containing greater than 10 volume percent and not more than 15 volume percent ethanol (E15), the following statement: “E15: Contains up to 15 vol % ethanol. The RVP does not exceed [fill in appropriate value] psi . ” . * * * * * 1 9 . Section 80.1504 is amended by revising paragraphs (a)(1), (a)(3) , (e), and (g) to read as follows: **§ 80.1504 What acts are prohibited under this subpart?**  * * * * * (a)(1) Sell, introdu ce, cause or permit the sale or introduction of gasoline containing greater than 10 volume percent ethanol (i.e., greater than E10) into any model year 2000 or older light - duty gasoline motor vehicle, any heavy- duty gasoline motor vehicle or engine, any hi ghway or off - highway motorcycle, or an y gasoline - powered nonroad engines, vehicles or equipment. * * * * * (3) Notwithstanding paragraphs (a)(1) and (a)(2) of this section, no person shall be prohibited from manufacturing, selling, introducing, or causin g or allowing the sale or*** E.O. 12866 Review

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Page **144** of **144** introduction of gasoline containing greater than 10 volume percent ethanol into any flex - fuel vehicle. * * * * * (e)(1) Improperl y blend, or cause the improper blending of, ethanol into conventional blendstock for ox ygenate ble nding, gasoline or gasoline already containing ethanol, in a manner inconsistent with the information on the product transfer document under § 80.1503(a)(1)(vi) or § 80.1503(b)(1)(vi) . (2) No person shall produce a fuel designated as E10 by blending ethan ol and gasoline in a manner designed to produce a fuel that contains less than 9.0 or more than 10.0 volume percent ethanol. (3) No person shall produce a fuel designated as E15 by blending ethanol and gasoline in a manner designed to produce a fuel that contains less than 10.0 volume percent ethanol or more than 15.0 volume percent ethanol. * * * * * (g) For gasoline during the regulatory control periods, combine any gasoline - ethanol blend that qualifies for the 1 psi allowance under the special regulatory treatment as provided by § 80.27(d) applicable to 9 - 10 volume percent gasoline - ethanol blends with any gasoline containing less than 9 volume percent ethanol or more than 10 volume percent ethanol up to a maximum of 15 volume percent ethanol. * * * * * 19 . A new s ection 80.1509 is added to subpart N to read as follows: **§ 80.1509 Rounding a test result for purposes of this**  **s ubpart**  **N .** 

The provisions of § 80.9 apply for purposes of determining the ethanol content of a gasoline - ethanol blend under th is subpart.