57248 Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Rules and Regulations 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by December 1, 2008. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Ozone, 

Particulate matter, Volatile organic 

compounds. 

Dated: September 24, 2008. 

Walter W. Kovalick Jr, 

Acting Regional Administrator, Region 5. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart KK—Ohio 

■ 2. Section 52.1885 is amended by 

adding paragraph (gg) to read as follows: 

§ 52.1885 Control strategy: Ozone. 

* * * * * 

(gg) Approval—EPA is approving 

requests submitted by the State of Ohio 

on April 4, 2005, and supplemented on 

May 20, 2005, February 14, 2006, May 

9, 2006, October 6, 2006, and February 

19, 2008, to discontinue the vehicle 

inspection and maintenance (I/M) 

program in the Cincinnati-Hamilton and 

Dayton-Springfield areas. The submittal 

also includes Ohio’s demonstration that 

eliminating the I/M programs in the 

Cincinnati-Hamilton and DaytonSpringfield areas will not interfere with 

the attainment and maintenance of the 

ozone NAAQS and the fine particulate 

NAAQS and with the attainment and 

maintenance of other air quality 

standards and requirements of the CAA. 

We are further approving Ohio’s request 

to modify the SIP such that I/M is no 

longer an active program in these areas 

and is instead a contingency measure in 

these areas’ maintenance plans. 

[FR Doc. E8–23245 Filed 10–1–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 80 

[EPA–HQ–OAR–2005–0161; FRL–8723–3] 

RIN 2060–AO80 

Regulation of Fuels and Fuel 

Additives: Modifications to Renewable 

Fuel Standard Program Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action on amendments to the Renewable 

Fuel Standard program requirements. 

Following publication of the final rule 

promulgating the Renewable Fuel 

Standard regulations, EPA discovered a 

number of technical errors and areas 

within the regulations that could benefit 

from clarification or modification. This 

direct final rule amends the regulations 

to make the appropriate corrections, 

clarifications and modifications. 

DATES: This direct final rule is effective 

on December 1, 2008 without further 

notice, unless EPA receives adverse 

comment by November 3, 2008. If EPA 

receives adverse comment, we will 

publish a timely withdrawal in the 

Federal Register informing the public 

that the rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2005–0161, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• E-mail: a-and-r-docket@epa.gov, 

Attention Air and Radiation Docket ID 

No. EPA–HQ–OAR–2005–0161. 

• Mail: Air and Radiation Docket, 

Docket No. EPA–HQ–OAR–2005–0161, 

Environmental Protection Agency, 

Mailcode: 6406J, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460. 

Please include a total of 2 copies. 

• Hand Delivery: EPA Docket Center, 

EPA/DC, EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC 20460, Attention Air and Radiation 

Docket, ID No. EPA–HQ–OAR–2005– 

0161. Such deliveries are only accepted 

during the Docket’s normal hours of 

operation, and special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2005– 

0161. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or e-mail. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an e-mail 

comment directly to EPA without going 

through www.regulations.gov, your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

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

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 


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available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket, EPA/DC, 

EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC. The Public Reading Room is open 

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

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Air 

and Radiation Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: 

Megan Brachtl, Compliance and 

Innovative Strategies Division, Office of 

Transportation and Air Quality, Mail 

Code: 6406J, Environmental Protection 

Agency, 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460; telephone 

number: (202) 343–9473; fax number: 

(202) 343–2802; e-mail address: 

brachtl.megan@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Why is EPA Using a Direct Final 

Rule? 

EPA is publishing this rule without a 

prior proposed rule because we view 

this as a noncontroversial action and 

anticipate no adverse comment. 

However, in the ‘‘Proposed Rules’’ 

section of today’s Federal Register, we 

are publishing a separate document that 

will serve as the proposal to adopt the 

provisions in this direct final rule if 

adverse comments are filed. We will not 

institute a second comment period on 

this action. Any parties interested in 

commenting must do so at this time. For 

further information about commenting 

on this rule, see the ADDRESSES section 

of this document. 

This rule will be effective on 

December 1, 2008 without further notice 

except to the extent we receive adverse 

comment by November 3, 2008. If EPA 

receives adverse comment, we will 

publish a timely withdrawal in the 

Federal Register informing the public 

that the portion of the rule on which 

adverse comment was received will not 

take effect. Any distinct amendment, 

paragraph, or section of today’s rule for 

which we do not receive adverse 

comment will become effective on the 

date set out above, notwithstanding any 

adverse comment on any other distinct 

amendment, paragraph, or section of 

this rule. We will address all public 

comments in any subsequent final rule 

based on the proposed rule. 

II. Does This Action Apply to Me? 

Entities potentially affected by this 

action include those involved with the 

production, distribution and sale of 

gasoline motor fuel or renewable fuels 

such as ethanol and biodiesel. Regulated 

categories and entities affected by this 

action include: 

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

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

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

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

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

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

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

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

a North American Industry Classification System (NAICS). 

bStandard Industrial Classification (SIC) system code. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. This table lists 

the types of entities that EPA is now 

aware could be potentially regulated by 

this action. Other types of entities not 

listed in the table could also be 

regulated. To determine whether your 

entity is regulated by this action, you 

should carefully examine the 

applicability criteria of Part 80, subparts 

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

Federal Regulations. If you have any 

question regarding applicability of this 

action to a particular entity, consult the 

person in the preceding FOR FURTHER

INFORMATION CONTACT section above. 

III. What Should I Consider as I 

Prepare My Comments for EPA? 

A. Submitting CBI. Do not submit this 

information to EPA through 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

B. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

C. Docket Copying Costs. You may be 

charged a reasonable fee for 

photocopying docket materials, as 

provided in 40 CFR part 2. 

IV. Renewable Fuel Standard Program 

Amendments 

Following publication of the final 

Renewable Fuel Standard (RFS) 

program regulations (72 FR 23900, May 

1, 2007), EPA discovered a number of 

areas within the RFS regulations at 40 


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1See ‘‘Questions and Answers on the Renewable 

Fuel Standard Program’’ at http://www.epa.gov/ 

otaq/renewablefuels/index.htm#comp. 

CFR Part 80, Subpart K that were in 

error, were unclear, or otherwise could 

benefit from modification. We have 

attempted to clarify some ambiguities in 

our Question and Answer document for 

the RFS program.1 However, in some 

cases we believe it is appropriate to 

modify the regulations. As a result, we 

are making the following amendments 

to the RFS regulations in Subpart K. 

A. Summary of Amendments 

Below is a table listing the provisions 

that we are amending. Many of the 

amendments address grammatical or 

typographical errors, or provide minor 

clarifications. A few amendments are 

being made in order to assist regulated 

entities in complying with the RFS 

program requirements and to lessen 

regulatory requirements where possible 

without compromising the goals of the 

RFS program. We have provided 

additional explanation for several of 

these amendments in sections IV.B 

through IV.H below. 

RFS PROGRAM AMENDMENTS

Section Description 

80.1101(d)(2) ........................ Corrected typographical error. 

80.1101(d)(3) ........................ Clarified that no more than 5 volume percent denaturant may be included in the volume of ethanol produced, imported or exported for purposes of determining compliance with the requirements under this subpart. See Section IV.B. 

80.1107(c) ............................ Clarified that the gasoline products to be included in an obligated party’s Renewable Volume Obligation (RVO) 

calculation should not be double-counted. 

80.1126(a)(1) ........................ Clarified that this provision pertains to Renewable Identification Number (RIN) generation, not RIN transfers. 

80.1126(b) ............................ Clarified that renewable fuel producers that are below the 10,000 gallon threshold are exempt from the attest engagement requirements in 80.1164 as well as other reporting and recordkeeping requirements. 

80.1126(d)(1) ........................ Clarified that the RIN that must be generated for each batch of renewable fuel that is produced or imported is a 

‘‘batch-RIN.’’ 

80.1127(b)(2) ........................ Corrected typographical error in deficit carryover equation. 

80.1128(a)(5)(ii) and (iii); removed (a)(5)(iv) and (v).Revised this paragraph to allow parties to use an equivalence value of 2.5 RINs per gallon for any renewable fuel 

for purposes of calculating the end-of-quarter check. See Section IV.C. 

80.1128(a)(6); removed 

(a)(7).

Deleted. Based on experience with the program to date, we believe this requirement is not necessary to fulfill the 

goals of the program. See Section IV.D. (§ 80.1128(a) has also been renumbered to adjust for this change.) 

80.1129(b)(1) and (b)(8) ...... Revised to clarify that a party with a small refinery or small refiner exemption may only separate RINs that have 

been assigned to a volume of renewable fuel that the party blends into motor vehicle fuel. 

80.1129(b)(2) ........................ Revised to clarify that up to 2.5 gallon-RINs may be separated when a volume of renewable fuel is blended into 

gasoline. 

80.1129(b)(4) ........................ Revised to allow any party to separate the RINs from renewable fuel that it produces or markets for use in motor 

vehicles in neat form, or uses in motor vehicles in neat form. An oversight in the current regulations only allows 

this for renewable fuel producers and importers. 

80.1129(b)(6) ........................ Revised to provide that this provision applies only to neat fuel for which an obligated party generates RINs. See 

Section IV.E. 

80.1129(d) ............................ Revised to delete the requirement that a separated RIN may not be transferred on a product transfer document 

that is used to transfer a volume of renewable fuel, since it will be clear from other information required on the 

product transfer document whether or not any assigned RINs have also been transferred with the fuel. 

80.1131(a)(8); removed 

(b)(4).

Moved the text in paragraph (b)(4) to a new paragraph (a)(8) in order to clarify that a RIN that is transferred to 

two or more parties is considered an invalid RIN. 

80.1132(a), (b) and (c) ......... Revised to clarify that the requirements in § 80.1132 apply to fuel that has been disposed of as well as fuel that 

has been spilled. See Section IV.F. 

80.1141(a)(1), 80.1142(a)(1) Amended to clarify that a refinery with an approved small refinery exemption or a refiner with a small refiner exemption is exempt from requirements that apply to obligated parties during the period of time that the small refinery or small refiner exemption is in effect. 

80.1141(a)(1) ........................ Corrected calendar year reference. 

80.1141(a)(4), 80.1142(a)(4) Revised to clarify that the small refinery and small refiner exemptions only apply to refineries or refiners that process crude oil, or feedstocks derived from crude oil, through refinery processing units. 

80.1141(b)(2)(ii) .................... Revised in order to clarify that small refinery status can be transferred with the sale of a refinery. Section 

80.1141(b)(2)(ii) currently requires the owner of a small refinery to submit a letter stating that the company 

owned the refinery as of the applicable date for eligibility for small refinery status. This provision has been revised to require the letter only to state that the refinery was small as of the applicable date. Thus, any refinery 

that qualifies for small refinery status retains its status even if the refinery is sold to another company. 

80.1142(e) ............................ Revised to clarify that a refiner who is disqualified as a small refiner must notify EPA in writing no later than 20 

days following the disqualifying event. 

80.1151(a)(3)(i), (b)(4)(i) and 

(d)(3)(i).

Deleted requirement to retain records of ‘‘expired RINs,’’ since it is apparent when a RIN has expired from the 

date of the RIN and information regarding expired RINs is not required to be reported to EPA. See Section 

IV.G. 

80.1152(c)(1)(iii) and (v), 

(c)(2).

Deleted requirement to report ‘‘expired RINs,’’ since it will be apparent when a RIN has expired from other information provided in the reports. Paragraph (c)(2) has also been renumbered. See Section IV.G. 

Deleted provisions relating to the submission of transaction and quarterly gallon-RIN reports on a facility-by-facility basis, since RIN trading activities are conducted on a company basis. 

80.1153(a)(5) ........................ Revised to clarify the language required to be included on product transfer documents for transfers of fuel with no 

assigned RINs. 

80.1154(a)(4) and (b) ........... Revised to clarify that producers who produce less than 10,000 gallons of renewable fuel per year are exempt 

from the attest engagement requirements as well as the other recordkeeping and reporting requirements. 

80.1160(a), (b)(1), and (f) .... Revised to clarify specific acts that are prohibited under the RFS program. 


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RFS PROGRAM AMENDMENTS—Continued 

Section Description 

80.1164 ................................ Revised to clarify the attest engagement requirements, and, where possible, to modify the requirements to make 

them less burdensome. See Section IV.H. 

80.1165, 80.1166, 80.1167 .. Corrected typographical errors. 

B. Amount of Denaturant in Ethanol 

Section 80.1101(d)(3) specifies that 

ethanol must contain a denaturant to be 

covered by the definition of ‘‘renewable 

fuel’’ under the RFS rule. For purposes 

of compliance with the RFS, a volume 

of ethanol includes the volume of 

denaturant contained in the ethanol. 

Under § 80.1107(d), renewable fuel, 

including denatured ethanol, is 

excluded from the volume of gasoline 

produced or imported for purposes of 

calculating an obligated party’s RVO. 

Under § 80.1130, any denatured ethanol 

that is exported is included in the 

volume of renewable fuel exported for 

purposes of calculating the exporter’s 

RVO. However, the regulations do not 

specify a maximum limit on the amount 

of denaturant that may be included in 

the volume of ethanol produced, 

imported or exported for purposes of 

these compliance calculations and other 

requirements under the RFS rule. 

In promulgating the RFS regulations, 

we assumed that the amount of 

denaturant included in a volume of 

ethanol normally would not exceed the 

industry maximum specification under 

ASTM D–4806, which is 5 percent. 

Since the rule was published, it has 

come to our attention that larger 

amounts of gasoline are sometimes used 

in ethanol as a denaturant. We believe 

it is appropriate to limit the amount of 

gasoline in ethanol that may be counted 

as a denaturant to an amount that 

reflects the ASTM specification. As 

indicated above, under the current 

regulations, any volume of gasoline 

contained in ethanol as a denaturant is 

excluded from an obligated party’s 

volume of gasoline produced or 

imported for purposes of calculating the 

party’s RVO. As a result, an obligated 

party is not prohibited from adding 

large amounts of gasoline to imported 

ethanol to avoid including the gasoline 

in its RVO calculation, and, at the same 

time, increase the volume of renewable 

fuel for which RINs could be generated. 

Therefore, we are amending the RFS 

regulations to specify a limit of 5 

volume percent denaturant that may be 

included in a volume of ethanol for 

purposes of determining compliance 

with requirements under the RFS rule. 

C. Equivalence Values for End-ofQuarter Check 

Section 80.1128(a)(5) provides that 

any party who owns assigned RINs must 

demonstrate that the sum of all assigned 

gallon-RINs that the party owns at the 

end of a quarter does not exceed the 

sum of all volumes of renewable fuel the 

party owns at the end of the quarter 

multiplied by their respective 

equivalence values. Section 

80.1128(a)(4) allows a party to transfer 

to another party up to 2.5 assigned RINs 

per gallon of any renewable fuel. 

Therefore, in some cases, a party could 

receive fuel with more assigned RINs 

than would be calculated for that 

volume of fuel using its equivalence 

value. As a result, the party could be out 

of compliance with the end-of-quarter 

check requirement in § 80.1128(a)(5), 

unless the party had enough fuel to sell 

with the excess RINs by the end of the 

quarter. For example, a marketer that 

receives a gallon of biodiesel with 2.5 

assigned gallon-RINs must calculate 

compliance with § 80.1128(a)(5) based 

on the equivalence value of the 

biodiesel, which is 1.5. If this were the 

marketer’s only transaction, the 

marketer would be out of compliance at 

the end of the quarter since he would 

have an excess of 1.0 assigned gallonRINs. To remedy this situation, we are 

amending § 80.1128(a)(5) to allow an 

equivalence value of 2.5 to be used for 

any volume of renewable fuel for 

purposes of calculating compliance with 

the end-of-quarter check requirement in 

§ 80.1128(a)(5). 

D. RIN Transfer Requirements for 

Producers and Importers 

The RFS program allows any party 

that receives assigned RINs with 

renewable fuel to thereafter transfer 

anywhere from zero to 2.5 gallon-RINs 

with each gallon of renewable fuel. This 

provision provides the flexibility to 

transfer more assigned RINs with some 

volumes and fewer assigned RINs with 

other volumes depending on the 

business circumstances of the 

transaction and the number of RINs that 

the seller has available. 

However, this level of flexibility 

could contribute to short-term hoarding 

on the part of producers and importers 

of renewable fuel. As a result, we 

implemented a provision at 

§ 80.1128(a)(6) that requires producers 

and importers to transfer assigned 

gallon-RINs with gallons such that the 

ratio of assigned gallon-RINs to gallons 

is equal to the equivalence value for the 

renewable fuel. In effect, this requires 

renewable fuel producers and importers 

to transfer every single batch of 

renewable fuel with all assigned RINs 

generated for that batch. We have 

interpreted this provision as applying 

only to producers and importers who 

only sell renewable fuel that they 

produce or import themselves. It does 

not apply to producers or importers that 

are also marketers of renewable fuel 

produced or imported by another party. 

Since the start of the RFS program, 

there have been numerous 

circumstances in which parties who 

purchase renewable fuel from a 

producer or importer wanted to avoid 

the registration, recordkeeping and 

reporting requirements of the program. 

To do this, they had to avoid taking 

ownership of RINs. In some cases the 

producer or importer has 

accommodated such parties by taking 

ownership of renewable fuel from 

another party, thereby becoming a 

marketer who is not subject to 

§ 80.1128(a)(6). However, this has not 

always been possible, and in such cases 

the purchaser has been forced to seek 

out alternative sources of renewable 

fuel. This latter outcome is inconsistent 

with one of our goals for the RFS 

program—structuring the program so it 

would have only a minimal effect on 

common business practices. 

After further consideration, we do not 

believe that producers and importers of 

renewable fuel should be required to 

transfer all RINs generated with every 

batch of renewable fuel that is 

produced. Instead, we believe that it 

should be sufficient that they comply 

with the end-of-quarter check in 

§ 80.1128(a)(5) and the restriction in 

that section on the number of gallonRINs that can be transferred with each 

gallon. This change recognizes that most 

producers and importers can already 

avoid the limitations of § 80.1128(a)(6) 

by buying a small quantity of renewable 

fuel from another party and thereby 

becoming a marketer. The change would 

also have minimal impact on the 

transfer of RINs with volume, as 


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producers and importers would be 

limited in the number of RINs they 

could hold onto given the end-of-quarter 

check. As a result, we are amending the 

regulations to delete the provisions 

contained in § 80.1128(a)(6). 

E. RINs That an Obligated Party 

Generates 

Section 80.1129(b)(1) provides that an 

obligated party must separate any RINs 

that have been assigned to a volume of 

renewable fuel that the obligated party 

owns. An exception to this requirement 

is provided in § 80.1129(b)(6) for 

obligated parties who also generate 

RINs. Under this provision, an obligated 

party who generates RINs may separate 

such RINs from volumes of renewable 

fuel only up to the level of gallon-RINs 

of the party’s RVO. The limitation in 

§ 80.1129(b)(6) was included in the 

regulations to prevent a renewable fuel 

producer from importing a small 

amount of gasoline, which would 

qualify the producer as an obligated 

party, in order to separate the RINs from 

all of the renewable fuel that the party 

produced. 

It has come to our attention that the 

limitation in § 80.1129(b)(6) may be 

problematic in situations where a party 

imports gasoline that contains 

renewable fuel. Under § 80.1126(d), 

RINs must be generated for any 

renewable fuel that is imported, 

including any renewable fuel contained 

in imported gasoline. For example, if a 

party imports 100 gallons of E10, the 

party would be required to generate 

RINs for the volume of ethanol in the 

E10, which would be 10 gallon-RINs. 

The party also would calculate its RVO 

based on the applicable RFS standard, 

which for 2008 is 7.76%. The standard 

as applied to the gasoline part of the 

volume of imported E10 in the example 

would result in an RVO of 6.98 gallonRINs (7.76% × 90 gallons). Since the 

party would be able to separate RINs 

only up to the party’s RVO, or 6.98 

gallon-RINs, the party would have 3.02 

assigned gallon-RINs which could not 

be separated. Under § 80.1128(a)(5), 

each party that owns assigned RINs 

must demonstrate that the party does 

not own more assigned gallon-RINs at 

the end of each quarter than the amount 

of renewable fuel in the party’s 

inventory, multiplied by its equivalence 

value. In the example above, the party 

would own 3.02 assigned gallon-RINs at 

the end of the quarter, but would not 

have any renewable fuel in its 

inventory. As a result, the party would 

not be in compliance with the 

requirement in § 80.1128(a)(5). 

To address this situation, this rule 

modifies the regulations to apply the 

limitation in § 80.1129(b)(6) only to neat 

renewable fuel for which the party 

generates RINs and not to renewable 

fuel already blended in gasoline. Thus, 

in the example above, the party would 

generate 10 gallon-RINs for the ethanol 

contained in the E10 and the party’s 

RVO would be 6.98 gallon-RINs, but the 

party would be able to separate all of the 

10 gallon-RINs from the fuel. The party 

then would have no assigned RINs at 

the end of the quarter and would not be 

in violation of the requirement in 

§ 80.1128(a)(5). If the party in our 

example imported 100 gallons of nonethanol gasoline and 10 gallons of neat 

renewable fuel, the party would 

generate 10 gallon-RINs, but could only 

separate RINs up to the party’s RVO, 

which be 7.76 gallon-RINs (7.76% × 100 

gallons). As a result, the party would 

have 2.24 assigned gallon-RINs left, but 

would also have 10 gallons of renewable 

fuel in its inventory, and, therefore, the 

party would be in compliance with the 

requirement in § 80.1128(a)(5). 

F. Renewable Fuel That Has Been 

Disposed Of 

Under § 80.1132, in the event of a 

spillage of renewable fuel that is 

required by a Federal, State or local 

authority to be reported, the owner of 

the renewable fuel must retire an 

appropriate number of gallon-RINs. 

Since the RFS rule was promulgated, it 

has come to our attention that disposal 

of renewable fuel may also be required 

to be reported to a government 

authority. We believe it is appropriate to 

treat such disposals of renewable fuel in 

the same manner as spillages of 

renewable fuel, since in both situations 

the fuel will not ultimately be used in 

motor vehicle fuel. As a result, 

§ 80.1132 has been amended to apply to 

reportable disposals of renewable fuel as 

well as reportable spillages of renewable 

fuel. 

G. Elimination Of Expired RIN Category 

Under § 80.1127(a)(3), RINs may only 

be used to demonstrate compliance with 

the RVO for the calendar year in which 

they were generated or the following 

year. Therefore, after two years, RINs 

have no value and are deemed to have 

expired. The regulations currently 

require information regarding expired 

RINs to be retained and included in the 

reports submitted to EPA. However, 

since EPA will know from the 

information contained in the RIN when 

the RIN was generated, EPA will also 

know when the RIN has expired. 

Therefore, we have determined that the 

requirements to retain records of 

expired RINs and to include information 

regarding expired RINs in the reports 

submitted to EPA are unnecessary, and, 

as a result, we are amending the 

regulations to eliminate the 

requirements to retain records and 

report information regarding expired 

RINs. 

H. Attest Engagements 

This rule makes several revisions to 

the attest engagement provisions in 

§ 80.1164 in order to correct minor 

technical errors, clarify the procedures 

required to be fulfilled by the attest 

auditor, and, where possible, revise the 

procedures to make them less 

burdensome without compromising the 

goals of the program. For audits of the 

obligated party compliance 

demonstration reports, the rule is 

revised to require the attest auditor to 

calculate the total number of RINs used 

for compliance by year of generation 

and reconcile that total with the 

information reported to EPA rather than 

calculating and reporting as a finding all 

RINs used for compliance. For audits of 

the RIN transaction and RIN activity 

reports, the rule is revised to clarify the 

type of documentation that is required 

to be provided to the attest auditor for 

purposes of verifying the information 

contained in the reports. The rule is also 

revised to require the attest auditor to 

review product transfer documents 

(PTDs) for a representative sample of 

RINs used for compliance and for a 

representative sample of renewable fuel 

batches that any party sells to another 

party. Under the current regulations, the 

auditor is required to review PTDs for 

each batch of renewable fuel produced 

or imported by a renewable fuel 

producer or importer, which we believe 

is unnecessarily burdensome, and does 

not require review of PTDs generated by 

other parties. In addition, the rule is 

revised to provide that the 

documentation required for the attest 

audit of the RIN activity reports must 

include, for owners of assigned RINs, 

the volume of renewable fuel owned at 

the end of the quarter in order to verify 

the accuracy of information relating to 

compliance with the end-of-quarter 

inventory check in § 80.1128(a)(5). The 

rule adds a requirement that a company 

representative must provide the attest 

auditor with a written representation 

that the copies of the EPA reports 

provided to the auditor are complete 

and accurate copies of the reports. This 

is a requirement for attest procedures 

under other fuels programs and 

omission of this requirement in the RFS 

rule was an oversight. The rule also 

includes a provision which requires the 

attest auditor to identify the commercial 

computer program used by the regulated 

party to track the data required for 


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purposes of compliance with the RFS 

requirements. 

V. Relationship to the Energy 

Independence and Security Act of 2007 

The Energy Independence and 

Security Act of 2007 (EISA) amended 

Clean Air Act section 211(o) in many 

respects, including requiring a 

substantially greater volume of 

renewable fuel use in the future. EPA is 

currently developing implementing 

regulations for this new legislation. 

EISA also included language addressing 

the transition period between its 

enactment and the time when new 

regulations are promulgated. EISA 

Section 210(a)(2) provides that ‘‘[u]ntil 

January 1, 2009, the Administrator of 

the Environmental Protection Agency 

shall implement section 211(o) of the 

Clean Air Act and the rules promulgated 

under that section in accordance with 

the provisions of that section as in effect 

before the enactment of this Act and in 

accordance with the rules promulgated 

before the enactment of this Act,’’ with 

certain exceptions. EPA believes that 

the intent of this transition provision of 

EISA was to maintain the fundamental 

program components and requirements 

of the existing regulations, but that it 

does not limit EPA’s ability to make 

minor programmatic changes that ease 

the administration and implementation 

of the current program. Accordingly, 

EPA views the changes made today to 

the 211(o) regulations to be ‘‘in 

accordance’’ with the regulations in 

effect when EISA was enacted, and will 

implement the amended regulations 

upon their effective date. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866, (58 FR 

51735 (October 4, 1993)) the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and therefore 

subject to OMB review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

It has been determined that this action 

is not a ‘‘significant regulatory action’’ 

under the terms of Executive Order 

12866 and is therefore not subject to 

OMB review. This direct final rule 

simply makes minor technical changes 

to the RFS regulations and modifies the 

requirements to make them less 

burdensome for regulated parties where 

possible. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. This 

action makes minor technical 

corrections to the regulations and 

modifies certain requirements to lessen 

the burden on related parties while 

maintaining the overall goals of the 

program. None of the changes in the 

rule require any additional information 

collection burdens. The Office of 

Management and Budget (OMB) has 

previously approved the information 

collection requirements contained in the 

existing regulations 40 CFR part 80, 

subpart K, under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. and has assigned OMB 

control number 2060–0600. The OMB 

control numbers for EPA’s regulations 

in 40 CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s direct final rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. In determining whether a rule 

has a significant economic impact on a 

substantial number of small entities, the 

impact of concern is any significant 

adverse economic impact on small 

entities, since the primary purpose of 

the regulatory flexibility analyses is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the rule 

on small entities.’’ 5 U.S.C. 603 and 604. 

Thus, an agency may certify that a rule 

will not have a significant economic 

impact on a substantial number of small 

entities if the rule relieves regulatory 

burden, or otherwise has a positive 

economic effect on all of the small 

entities subject to the rule. 

This action makes minor technical 

corrections to the regulations and 

modifies certain requirements to lessen 

the burden on regulated parties while 

maintaining the overall goals of the 

program. We have therefore concluded 

that today’s direct final rule will relieve 

regulatory burden for affected small 

entities. 

D. Unfunded Mandates Reform Act 

This rule does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for State, local, 

and tribal governments, in the aggregate, 

or the private sector in any one year. 

This action makes minor technical 

corrections to the RFS regulations and 

modifies certain provisions to lessen the 

requirements for regulated parties. As a 

result, this rule will have the overall 

effect of reducing the burden of the RFS 

regulations on regulated parties. Thus, 

this rule is not subject to the 

requirements of sections 202 or 205 of 

UMRA. 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. It 

only applies to gasoline and renewable 

fuel producers, importers, distributors 

and marketers and makes minor 

corrections and modifications to the 

RFS regulations. 

E. Executive Order 13132 (Federalism) 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 


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federalism implications’’ is defined in 

the Executive Order to include 

regulations that 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.’’ 

This direct final rule 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 

makes minor technical corrections and 

modifications to existing regulations in 

order to lessen the burden on related 

parties. Thus, Executive Order 13132 

does not apply to this rule. 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This direct final rule does not have 

tribal implications, as specified in 

Executive Order 13175 (65 FR 67249, 

November 9, 2000). It applies to 

gasoline and renewable fuel producers, 

importers, distributors and marketers. 

This action makes minor corrections 

and modifications to the RFS 

regulations, and does not impose any 

enforceable duties on communities of 

Indian tribal governments. Thus, 

Executive Order 13175 does not apply 

to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it does 

not establish an environmental standard 

intended to mitigate health or safety 

risks. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211 (66 FR 18355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. NTTAA directs EPA 

to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this direct 

final rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. These technical 

amendments do not relax the control 

measures on sources regulated by the 

RFS regulations and therefore will not 

cause emissions increases from these 

sources. 

K. Congressional Review Act 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

L. Clean Air Act Section 307(d) 

This rule is subject to Section 307(d) 

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

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

rule or procedure which was raised with 

reasonable specificity during the period 

for public comment (including any 

public hearing) may be raised during 

judicial review.’’ This section also 

provides a mechanism for the EPA to 

convene a proceeding for 

reconsideration, ‘‘[i]f the person raising 

an objection can demonstrate to the EPA 

that it was impracticable to raise such 

objection within [the period for public 

comment] or if the grounds for such 

objection arose after the period for 

public comment (but within the time 

specified for judicial review) and if such 

objection is of central relevance to the 

outcome of the rule.’’ Any person 

seeking to make such a demonstration to 

the EPA should submit a Petition for 

Reconsideration to the Office of the 

Administrator, U.S. EPA, Room 3000, 

Ariel Rios Building, 1200 Pennsylvania 

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

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

preceding FOR FURTHER INFORMATION

CONTACT section, and the Director of the 

Air and Radiation Law Office, Office of 

General Counsel (Mail Code 2344A), 

U.S. EPA, 1200 Pennsylvania Ave., 

NW., Washington, DC 20460. 

List of Subjects in 40 CFR Part 80 

Environmental protection, Fuel 

additives, Gasoline, Imports, Motor 

vehicle pollution, Reporting and 

recordkeeping requirements. 

Dated: September 25, 2008. 

Stephen L. Johnson, 

Administrator. 

■ 40 CFR part 80 is amended as follows: 

PART 80—REGULATION OF FUEL 

AND FUEL ADDITIVES 

■ 1. The authority citation for part 80 

continues to read as follows: 

Authority: 42 U.S.C. 7414, 7542, 7545, and 

7601(a). 

■ 2. Section 80.1101 is amended by 

revising paragraphs (d)(2) and (d)(3) to 

read as follows: 


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§ 80.1101 Definitions. 

* * * * * 

(d) * * * 

(2) The term ‘‘Renewable fuel’’ 

includes cellulosic biomass ethanol, 

waste derived ethanol, biodiesel (monoalkyl ester), non-ester renewable diesel, 

and blending components derived from 

renewable fuel. 

(3) Ethanol covered by this definition 

shall be denatured as required and 

defined in 27 CFR parts 20 and 21. Any 

volume of denaturant in ethanol in 

excess of 5 volume percent shall not be 

included in the volume of ethanol for 

purposes of determining compliance 

with the requirements under this 

subpart. 

* * * * * 

■ 3. Section 80.1107 is amended by 

revising paragraph (c) introductory text 

to read as follows: 

§ 80.1107 How is the Renewable Volume 

Obligation calculated? 

* * * * * 

(c) All of the following products that 

are produced or imported during a 

compliance period, collectively called 

‘‘gasoline’’ for purposes of this section 

(unless otherwise specified), are to be 

included (but not double-counted) in 

the volume used to calculate a party’s 

renewable volume obligation under 

paragraph (a) of this section, except as 

provided in paragraph (d) of this 

section: 

* * * * * 

■ 4. Section 80.1126 is amended by 

revising paragraphs (a)(1), (b) and (d)(1) 

to read as follows: 

§ 80.1126 How are RINs generated and 

assigned to batches of renewable fuel by 

renewable fuel producers and importers? 

(a) * * * 

(1) Except as provided in paragraph 

(b) of this section, a batch RIN must be 

generated by a renewable fuel producer 

or importer for every batch of renewable 

fuel produced by a facility located in the 

contiguous 48 states of the United 

States, or imported into the contiguous 

48 states. 

* * * * * 

(b) Volume threshold. Renewable fuel 

producers located within the United 

States that produce less than 10,000 

gallons of renewable fuel each year, and 

importers that import less than 10,000 

gallons of renewable fuel each year, are 

not required to generate and assign RINs 

to batches of renewable fuel. Such 

producers and importers are also 

exempt from the registration, reporting, 

and recordkeeping requirements of 

§§ 80.1150–80.1152, and the attest 

engagement requirements of § 80.1164. 

However, for such producers and 

importers that voluntarily generate and 

assign RINs, all the requirements of this 

subpart apply. 

* * * * * 

(d) * * * 

(1) Except as provided in paragraph 

(b) of this section, the producer or 

importer of a batch of renewable fuel 

must generate a batch-RIN for that 

batch, including any renewable fuel 

contained in imported gasoline. 

* * * * * 

■ 5. Section 80.1127 is amended by 

revising paragraph (b)(2) to read as 

follows: 

§ 80.1127 How are RINs used to 

demonstrate compliance? 

* * * * * 

(b) * * * 

(2) A deficit is calculated according to 

the following formula: 

Di = RVOi = [(SRINNUM)i + 

(SRINNUM)i-1] 

Where: 

Di = The deficit, in gallons, generated in 

calendar year i that must be carried over 

to year i+1 if allowed to do so pursuant 

to paragraph (b)(1)(i) of this section. 

RVOi = The Renewable Volume Obligation 

for the obligated party or renewable fuel 

exporter for calendar year i, in gallons. 

(SRINNUM)i = Sum of all acquired gallonRINs that were generated in year i and 

are being applied towards the RVOi, in 

gallons. 

(SRINNUM)i-1 = Sum of all acquired gallonRINs that were generated in year i-1 and 

are being applied towards the RVOi, in 

gallons. 

■ 6. Section 80.1128 is amended as 

follows: 

■ a. By revising paragraphs (a)(5)(ii) and 

(a)(5)(iii). 

■ b. By removing paragraphs (a)(5)(iv) 

and (a)(5)(v). 

■ c. By revising paragraph (a)(6). 

■ d. By removing paragraph (a)(7). 

§ 80.1128 General requirements for RIN 

distribution. 

(a) * * * 

(5) * * * 

(ii) The equivalence value EVi for use 

in the equation in paragraph (a)(5)(i) of 

this section for any volume of renewable 

fuel shall be 2.5. 

(iii) The applicable dates are March 

31, June 30, September 30, and 

December 31. For 2007 only, the 

applicable dates are September 30 and 

December 31. 

(6) Any transfer of ownership of 

assigned RINs must be documented on 

product transfer documents generated 

pursuant to § 80.1153. 

(i) The RIN must be recorded on the 

product transfer document used to 

transfer ownership of the RIN and the 

volume to another party; or 

(ii) The RIN must be recorded on a 

separate product transfer document 

transferred to the same party on the 

same day as the product transfer 

document used to transfer ownership of 

the volume of renewable fuel. 

* * * * * 

■ 7. Section 80.1129 is amended as 

follows: 

■ a. By revising paragraphs (b)(1), (b)(2), 

(b)(4) and (b)(6). 

■ b. By adding paragraph (b)(8). 

■ c. By revising paragraph (d). 

§ 80.1129 Requirements for separating 

RINs from volumes of renewable fuel. 

* * * * * 

(b) * * * 

(1) Except as provided in paragraphs 

(b)(6) and (b)(8) of this section, a party 

that is an obligated party according to 

§ 80.1106 must separate any RINs that 

have been assigned to a volume of 

renewable fuel if they own that volume. 

(2) Except as provided in paragraph 

(b)(5) of this section, any party that 

owns a volume of renewable fuel must 

separate any RINs that have been 

assigned to that volume once the 

volume is blended with gasoline or 

diesel to produce a motor vehicle fuel. 

A party may separate up to 2.5 RINs per 

gallon of fuel that is blended. 

* * * * * 

(4) Any person that produces, 

imports, owns, sells or uses a volume of 

renewable fuel may separate any RINs 

that have been assigned to that volume 

of renewable fuel if the person 

designates the renewable fuel as motor 

vehicle fuel and the renewable fuel is 

used as a motor vehicle fuel. 

* * * * * 

(6) For RINs that an obligated party 

generates from renewable fuel that has 

not been blended into gasoline, the 

obligated party can only separate such 

RINs from volumes of renewable fuel if 

the number of gallon-RINs separated is 

less than or equal to its annual RVO. 

* * * * * 

(8) For a party that has received a 

small refinery exemption under 

§ 80.1141 or a small refiner exemption 

under § 80.1142, during the period of 

time that the small refinery or small 

refiner exemption is in effect, the party 

may only separate RINs that have been 

assigned to volumes of renewable fuel 

that the party blends into motor vehicle 

fuel. 

* * * * * 

(d) Upon and after separation of a RIN 

from its associated volume, product 

transfer documents used to transfer 

ownership of the volume must continue 


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to meet the requirements of 

§ 80.1153(a)(5)(iii). 

* * * * * 

■ 8. Section 80.1131 is amended by 

adding paragraph (a)(8) and removing 

paragraph (b)(4) to read as follows: 

§ 80.1131 Treatment of invalid RINs. 

(a) * * * 

(8) In the event that the same RIN is 

transferred to two or more parties, all 

such RINs will be deemed to be invalid, 

unless EPA in its sole discretion 

determines that some portion of these 

RINs is valid. 

* * * * * 

■ 9. Section 80.1132 is amended as 

follows: 

■ a. By revising the section heading. 

■ b. By revising paragraph (a). 

■ c. By revising paragraph (b) 

introductory text. 

■ d. By revising paragraph (c). 

§ 80.1132 Reported spillage or disposal of 

renewable fuel. 

(a) A reported spillage or disposal 

under this subpart means a spillage or 

disposal of renewable fuel associated 

with a requirement by a federal, state or 

local authority to report the spillage or 

disposal. 

(b) Except as provided in paragraph 

(c) of this section, in the event of a 

reported spillage or disposal of any 

volume of renewable fuel, the owner of 

the renewable fuel must retire a number 

of gallon-RINs corresponding to the 

volume of spilled or disposed of 

renewable fuel multiplied by the lesser 

of its equivalence value or the number 

of RINs received with the spilled or 

disposed fuel, not to exceed 2.5 RINs 

per gallon. 

* * * * * 

(c) If the owner of a volume of 

renewable fuel that is spilled or 

disposed of and reported establishes 

that no RINs were generated to represent 

the volume, then no gallon-RINs shall 

be retired. 

* * * * * 

■ 10. Section 80.1141 is amended by 

revising paragraph (a)(1), adding 

paragraph (a)(4), and revising paragraph 

(b)(2)(ii) to read as follows: 

§ 80.1141 Small refinery exemption. 

(a)(1) Gasoline produced at a refinery 

by a refiner, or foreign refiner (as 

defined at § 80.1165(a)), is exempt from 

the renewable fuel standards of 

§ 80.1105 and the requirements that 

apply to obligated parties under this 

subpart if that refinery meets the 

definition of a small refinery under 

§ 80.1101(g) for calendar year 2004. 

* * * * * 

(4) This exemption shall only apply to 

refineries that process crude oil, or 

feedstocks derived from crude oil, 

through refinery processing units. 

(b) * * * 

(2) * * * 

(ii) A letter signed by the president, 

chief operating or chief executive officer 

of the company, or his/her designee, 

stating that the information contained in 

the letter is true to the best of his/her 

knowledge, and that the refinery was 

small as of December 31, 2004. 

* * * * * 

■ 11. Section 80.1142 is amended by 

revising paragraph (a)(1) introductory 

text, adding paragraph (a)(4), and 

revising paragraph (e) to read as follows: 

§ 80.1142 What are the provisions for 

small refiners under the RFS program? 

(a)(1) Gasoline produced by a refiner, 

or foreign refiner (as defined at 

§ 80.1165(a)), is exempt from the 

renewable fuel standards of § 80.1105 

and the requirements that apply to 

obligated parties under this subpart if 

the refiner or foreign refiner does not 

meet the definition of a small refinery 

under § 80.1101(g) but meets all of the 

following criteria: 

* * * * * 

(4) This exemption shall only apply to 

refineries that process crude oil, or 

feedstocks derived from crude oil, 

through refinery processing units. 

* * * * * 

(e) A refiner who qualifies as a small 

refiner under this section and 

subsequently fails to meet all of the 

qualifying criteria as set out in 

paragraph (a) of this section will have 

its small refiner exemption terminated 

effective January 1 of the next calendar 

year. 

(1) In the event such disqualification 

occurs, the refiner shall notify EPA in 

writing no later than 20 days following 

the disqualifying event. 

(2) Disqualification under this 

paragraph (e) shall not apply in the case 

of a merger between two approved small 

refiners. 

* * * * * 

■ 12. Section 80.1151 is amended by 

revising paragraphs (a)(3)(i), (b)(4)(i), 

and (d)(3)(i) to read as follows: 

§ 80.1151 What are the recordkeeping 

requirements under the RFS program? 

(a) * * * 

(3) * * * 

(i) A list of the RINs owned, 

purchased, sold, or retired. 

* * * * * 

(b) * * * 

(4) * * * 

(i) A list of the RINs owned, 

purchased, sold, or retired. 

* * * * * 

(d) * * * 

(3) * * * 

(i) A list of the RINs owned, 

purchased, sold or retired. 

* * * * * 

■ 13. Section 80.1152 is amended by 

removing and reserving paragraph 

(c)(1)(iii), and revising paragraphs 

(c)(1)(v) and (c)(2) to read as follows: 

§ 80.1152 What are the reporting 

requirements under the RFS program? 

* * * * * 

(c) * * * 

(1) * * * 

(iii) [Reserved] 

* * * * * 

(v) Transaction type (RIN purchase, 

RIN sale, retired RIN). 

* * * * * 

(2) A quarterly gallon-RIN activity 

report shall be submitted to EPA 

according to the schedule specified in 

paragraph (d) of this section. Each 

report shall summarize gallon-RIN 

activities for the reporting period, 

separately for RINs assigned to a 

renewable fuel volume and RINs 

separated from a renewable fuel volume. 

The quarterly gallon-RIN activity report 

shall include all of the following 

information: 

(i) The submitting party’s name. 

(ii) The party’s EPA company 

registration number. 

(iii) The number of current-year 

gallon-RINs owned at the start of the 

quarter. 

(iv) The number of prior-year gallonRINs owned at the start of the quarter. 

(v) The total current-year gallon-RINs 

purchased. 

(vi) The total prior-year gallon-RINs 

purchased. 

(vii) The total current-year gallonRINs sold. 

(viii) The total prior-year gallon-RINs 

sold. 

(ix) The total current-year gallon-RINs 

retired. 

(x) The total prior-year gallon-RINs 

retired. 

(xi) The number of current-year 

gallon-RINs owned at the end of the 

quarter. 

(xii) The number of prior-year gallonRINs owned at the end of the quarter. 

(xiii) For parties reporting gallon-RIN 

activity under this paragraph for RINs 

assigned to a volume of renewable fuel, 

the total volume of renewable fuel (in 

gallons) owned at the end of the quarter. 

(xiv) Any additional information that 

the Administrator may require. 

* * * * * 


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■ 14. Section 80.1153 is amended by 

revising paragraph (a)(5)(iii) to read as 

follows: 

§ 80.1153 What are the product transfer 

document (PTD) requirements for the RFS 

program? 

(a) * * * 

(5) * * * 

(iii) If no assigned RINs are being 

transferred with the renewable fuel, the 

PTD which is used to transfer 

ownership of the renewable fuel shall 

state ‘‘No assigned RINs transferred’’. 

* * * * * 

■ 15. Section 80.1154 is amended by 

adding paragraph (a)(4) and revising 

paragraph (b) to read as follows: 

§ 80.1154 What are the provisions for 

renewable fuel producers and importers 

who produce or import less than 10,000 

gallons of renewable fuel per year? 

(a) * * * 

(4) The attest engagement 

requirements of § 80.1164. 

(b) Renewable fuel producers and 

importers who produce or import less 

than 10,000 gallons of renewable fuel 

each year and that generate and/or 

assign RINs to batches of renewable fuel 

are subject to the provisions of 

§§ 80.1150 through 80.1152, and 

§ 80.1164. 

■ 16. Section 80.1160 is amended by 

revising paragraphs (a) and (b)(1), and 

by adding paragraph (f) to read as 

follows: 

§ 80.1160 What acts are prohibited under 

the RFS program? 

(a) Renewable fuel producer or 

importer violation. Except as provided 

in § 80.1154, no person shall produce or 

import a renewable fuel without 

generating a batch-RIN as required 

under § 80.1126. 

(b) * * * 

(1) Improperly generate a RIN (e.g., 

generate a RIN for which the applicable 

renewable fuel volume was not 

produced). 

* * * * * 

(f) Failure to meet a requirement. No 

person shall fail to meet any 

requirement that applies to that person 

under this subpart. 

■ 17. Section 80.1164 is amended as 

follows: 

■ a. By revising paragraphs (a)(1)(ii) 

through (a)(1)(v). 

■ b. By adding paragraphs (a)(1)(vi) 

through (a)(1)(viii). 

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

(a)(2)(ii). 

■ d. By adding paragraph (a)(2)(iii). 

■ e. By revising paragraph (a)(3)(ii). 

■ e. By revising paragraphs (b)(1)(ii) 

through (b)(1)(iv). 

■ f. By revising paragraphs (b)(2)(i) and 

(b)(2)(ii). 

■ g. By adding paragraph (b)(2)(iii). 

■ h. By revising paragraph (b)(3)(ii). 

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

(c)(1)(ii). 

■ j. By adding paragraph (c)(1)(iii). 

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

■ l. By adding paragraphs (e) and (f). 

§ 80.1164 What are the attest engagement 

requirements under the RFS program? 

* * * * * 

(a) * * * 

(1) * * * 

(ii) Obtain documentation of any 

volumes of renewable fuel used in 

gasoline at the refinery or import facility 

or exported during the reporting year; 

compute and report as a finding the 

total volumes of renewable fuel 

represented in these documents. 

(iii) Compare the volumes of gasoline 

reported to EPA in the report required 

under § 80.1152(a)(1) with the volumes, 

excluding any renewable fuel volumes, 

contained in the inventory 

reconciliation analysis under § 80.133, 

and verify that the volumes reported to 

EPA agree with the volumes in the 

inventory reconciliation analysis. 

(iv) Compute and report as a finding 

the obligated party’s or exporter’s RVO, 

and any deficit RVO carried over from 

the previous year or carried into the 

subsequent year, and verify that the 

values agree with the values reported to 

EPA. 

(v) Obtain the database, spreadsheet, 

or other documentation for all RINs 

used for compliance during the year 

being reviewed; calculate the total 

number of RINs used for compliance by 

year of generation represented in these 

documents; state whether this 

information agrees with the report to 

EPA and report as a finding any 

exceptions. 

(vi) Identify a representative sample, 

selected in accordance with the 

guidelines in § 80.127, of RINs used for 

compliance during the year being 

reviewed. 

(vii) Obtain contracts, invoices or 

other documentation for RINs in the 

representative sample obtained in 

paragraph (a)(1)(vi) of this section, and 

the product transfer documents for the 

RINs in the representative sample; state 

whether the information in these 

documents agrees with the information 

in the party’s report to EPA and report 

as a finding any exceptions. 

(viii) Verify that the product transfer 

documents for the representative sample 

of RINs used for compliance contain the 

applicable information required under 

§ 80.1153 and report as a finding any 

product transfer document that does not 

contain the required information; verify 

the accuracy of the information 

contained in the product transfer 

documents for the representative sample 

and report as a finding any exceptions. 

(2) * * * 

(i) Identify a representative sample, 

selected in accordance with the 

guidelines in § 80.127, separately for 

each RIN transaction type (RINs 

purchased, RINs sold, RINs retired) 

included in the RIN transaction reports 

required under § 80.1152(a)(2) for the 

compliance year. 

(ii) Obtain contracts, invoices, or 

other documentation for each of the 

representative samples of RIN 

transactions, and the product transfer 

documents for each of the representative 

samples of RIN transactions; compute 

the transaction types, transaction dates, 

and RINs traded; state whether the 

information agrees with the party’s 

reports to EPA and report as a finding 

any exceptions. 

(iii) Verify that the product transfer 

documents for the representative sample 

of RINs sold and the representative 

sample of RINs purchased contain the 

applicable information required under 

§ 80.1153 and report as a finding any 

product transfer document that does not 

contain the required information; verify 

the accuracy of the information 

contained in the product transfer 

documents for the representative 

samples and report as a finding any 

exceptions. 

(3) * * * 

(ii) Obtain the database, spreadsheet, 

or other documentation used to generate 

the information in the gallon-RIN 

activity reports; compare the RIN 

transaction samples reviewed under 

paragraph (a)(2) of this section with the 

corresponding entries in the database or 

spreadsheet and report as a finding any 

discrepancies; compute the total 

number of current-year and prior-year 

gallon-RINs owned at the start and end 

of the quarter, purchased, sold and 

retired, and for parties that reported 

gallon-RIN activity for RINs assigned to 

a volume of renewable fuel, the volume 

of renewable fuel owned at the end of 

the quarter, as represented in these 

documents; and state whether this 

information agrees with the party’s 

reports to EPA. 

(b) * * * 

(1) * * * 

(ii) Obtain production data for each 

renewable fuel batch produced or 

imported during the year being 

reviewed; compute the RIN numbers, 

production dates, types, volumes of 

denaturant and applicable equivalence 

values, and production volumes for 

each batch; state whether this 


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57258 Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Rules and Regulations 

information agrees with the party’s 

reports to EPA and report as a finding 

any exceptions. 

(iii) Verify that the proper number of 

RINs were generated and assigned for 

each batch of renewable fuel produced 

or imported, as required under 

§ 80.1126. 

(iv) Identify a representative sample, 

selected in accordance with the 

guidelines in § 80.127, of renewable fuel 

batches produced or imported during 

the year being reviewed; obtain product 

transfer documents for the 

representative sample; verify that the 

product transfer documents contain the 

applicable information required under 

§ 80.1153; verify the accuracy of the 

information contained in the product 

transfer documents; report as a finding 

any product transfer document that does 

not contain the applicable information 

required under § 80.1153. 

(2) * * * 

(i) Identify a representative sample, 

selected in accordance with the 

guidelines in § 80.127, separately for 

each transaction type (RINs purchased, 

RINs sold, RINs retired) included in the 

RIN transaction reports required under 

§ 80.1152(b)(2) for the compliance year. 

(ii) Obtain contracts, invoices, or 

other documentation for each of the 

representative samples of RIN 

transactions, and the product transfer 

documents for each of the representative 

samples of RIN transactions; compute 

the transaction types, transaction dates, 

and the RINs traded; state whether this 

information agrees with the party’s 

reports to EPA and report as a finding 

any exceptions. 

(iii) Verify that the product transfer 

documents for the representative sample 

of RINs sold and the representative 

sample of RINs purchased contain the 

applicable information required under 

§ 80.1153 and report as a finding any 

product transfer document that does not 

contain the required information; verify 

the accuracy of the information 

contained in the product transfer 

documents for the representative 

samples and report as a finding any 

exceptions. 

(3) * * * 

(ii) Obtain the database, spreadsheet, 

or other documentation used to generate 

the information in the gallon-RIN 

activity reports; compare the RIN 

transaction samples reviewed under 

paragraph (b)(2) of this section with the 

corresponding entries in the data base or 

spreadsheet and report as a finding any 

discrepancies; compute the total 

number of current-year and prior-year 

gallon-RINs owned at the start and end 

of the quarter, purchased, sold and 

retired, and for parties that reported 

gallon-RIN activity for RINs assigned to 

a volume of renewable fuel, the volume 

of renewable fuel owned at the end of 

the quarter, as represented in these 

documents; and state whether this 

information agrees with the party’s 

reports to EPA. 

(c) * * * 

(1) * * * 

(i) Identify a representative sample, 

selected in accordance with the 

guidelines in § 80.127, separately for 

each RIN transaction type (RINs 

purchased, RINs sold, RINs retired) 

included in the RIN transaction reports 

required under § 80.1152(c)(1) for the 

compliance year. 

(ii) Obtain contracts, invoices, or 

other documentation for the 

representative samples of RIN 

transactions, and the product transfer 

documents for the representative 

samples of RIN transactions; compute 

the transaction types, transaction dates, 

and the RINs traded; state whether this 

information agrees with the party’s 

reports to EPA and report as a finding 

any exceptions. 

(iii) Verify that the transfer documents 

for the representative sample of RINs 

sold and the representative sample of 

RINs purchased contain the applicable 

information required under § 80.1153 

and report as a finding any product 

transfer document that does not contain 

the required information; verify the 

accuracy of the information contained 

in the product transfer documents for 

the representative samples and report as 

a finding any exceptions. 

(2) * * * 

(ii) Obtain the database, spreadsheet, 

or other documentation used to generate 

the information in the gallon-RIN 

activity reports; compare the RIN 

transaction samples reviewed under 

paragraph (c)(1) of this section with the 

corresponding entries in the data base or 

spreadsheet and report as a finding any 

discrepancies; compute the total 

number of current-year and prior-year 

gallon-RINs owned at the start and end 

of the quarter, purchased, sold and 

retired, and for parties that reported 

gallon-RIN activity for RINs assigned to 

a volume of renewable fuel, the volume 

of renewable fuel owned at the end of 

the quarter, as represented in these 

documents; and state whether this 

information agrees with the party’s 

reports to EPA. 

* * * * * 

(e) The party conducting the 

procedures under this section shall 

obtain a written representation from a 

company representative that the copies 

of the reports required by this section 

are complete and accurate copies of the 

reports filed with EPA. 

(f) The party conducting the 

procedures under this section shall 

identify and report as a finding the 

commercial computer program used by 

the party to track the data required by 

the regulations in this subpart, if any. 

■ 18. Section 80.1165 is amended by 

revising paragraphs (f)(1)(vi) and (o)(2) 

to read as follows: 

§ 80.1165 What are the additional 

requirements under this subpart for a 

foreign small refiner? 

* * * * * 

(f) * * * 

(1) * * * 

(vi) Inspections and audits by EPA 

may include interviewing employees. 

* * * * * 

(o) * * * 

(2) Signed by the president or owner 

of the foreign refiner company, or by 

that person’s immediate designee, and 

shall contain the following declaration: 

I hereby certify: (1) That I have actual 

authority to sign on behalf of and to 

bind [insert name of foreign refiner] 

with regard to all statements contained 

herein; (2) that I am aware that the 

information contained herein is being 

Certified, or submitted to the United 

States Environmental Protection 

Agency, under the requirements of 40 

CFR part 80, subpart K, and that the 

information is material for determining 

compliance under these regulations; and 

(3) that I have read and understand the 

information being Certified or 

submitted, and this information is true, 

complete and correct to the best of my 

knowledge and belief after I have taken 

reasonable and appropriate steps to 

verify the accuracy thereof. I affirm that 

I have read and understand the 

provisions of 40 CFR part 80, subpart K, 

including 40 CFR 80.1165 apply to 

[insert name of foreign refiner]. 

Pursuant to Clean Air Act section 113(c) 

and 18 U.S.C. 1001, the penalty for 

furnishing false, incomplete or 

misleading information in this 

certification or submission is a fine of 

up to $10,000 U.S., and/or 

imprisonment for up to five years. 

■ 19. Section 80.1166 is amended by 

revising paragraph (o)(2) to read as 

follows: 

§ 80.1166 What are the additional 

requirements under this subpart for a 

foreign producer of cellulosic biomass 

ethanol or waste derived ethanol? 

* * * * * 

(o) * * * 

(2) Signed by the president or owner 

of the foreign producer company, or by 

that person’s immediate designee, and 

shall contain the following declaration: 

I hereby certify: (1) That I have actual 

authority to sign on behalf of and to 


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Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Rules and Regulations 57259 

bind [insert name of foreign producer] 

with regard to all statements contained 

herein; (2) that I am aware that the 

information contained herein is being 

Certified, or submitted to the United 

States Environmental Protection 

Agency, under the requirements of 40 

CFR part 80, subpart K, and that the 

information is material for determining 

compliance under these regulations; and 

(3) that I have read and understand the 

information being Certified or 

submitted, and this information is true, 

complete and correct to the best of my 

knowledge and belief after I have taken 

reasonable and appropriate steps to 

verify the accuracy thereof. I affirm that 

I have read and understand the 

provisions of 40 CFR part 80, subpart K, 

including 40 CFR 80.1165 apply to 

[insert name of foreign producer]. 

Pursuant to Clean Air Act section 113(c) 

and 18 U.S.C. 1001, the penalty for 

furnishing false, incomplete or 

misleading information in this 

certification or submission is a fine of 

up to $10,000 U.S., and/or 

imprisonment for up to five years. 

■ 20. Section 80.1167 is amended by 

revising paragraph (e) introductory text 

and paragraph (j)(2) to read as follows: 

§ 80.1167 What are the additional 

requirements under this subpart for a 

foreign RIN owner? 

* * * * * 

(e) Bond posting. Any foreign entity 

shall meet the requirements of this 

paragraph (e) as a condition to approval 

as a foreign RIN owner under this 

subpart. 

* * * * * 

(j) * * * 

(2) Signed by the president or owner 

of the foreign RIN owner company, or 

by that person’s immediate designee, 

and shall contain the following 

declaration: 

I hereby certify: (1) That I have actual 

authority to sign on behalf of and to 

bind [insert name of foreign RIN owner] 

with regard to all statements contained 

herein; (2) that I am aware that the 

information contained herein is being 

Certified, or submitted to the United 

States Environmental Protection 

Agency, under the requirements of 40 

CFR part 80, subpart K, and that the 

information is material for determining 

compliance under these regulations; and 

(3) that I have read and understand the 

information being Certified or 

submitted, and this information is true, 

complete and correct to the best of my 

knowledge and belief after I have taken 

reasonable and appropriate steps to 

verify the accuracy thereof. I affirm that 

I have read and understand the 

provisions of 40 CFR part 80, subpart K, 

including 40 CFR 80.1167 apply to 

[insert name of foreign RIN owner]. 

Pursuant to Clean Air Act section 113(c) 

and 18 U.S.C. 1001, the penalty for 

furnishing false, incomplete or 

misleading information in this 

certification or submission is a fine of 

up to $10,000 U.S., and/or 

imprisonment for up to five years. 

[FR Doc. E8–23131 Filed 10–1–08; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

43 CFR Part 11 

RIN 1090–AA97 

Natural Resource Damages for 

Hazardous Substances 

AGENCY: Department of the Interior. 

ACTION: Final rule. 

SUMMARY: This final rule amends certain 

parts of the natural resource damage 

assessment regulations for hazardous 

substances. The regulations provide 

procedures that natural resource 

trustees may use to evaluate the need for 

and means of restoring, replacing, or 

acquiring the equivalent of public 

natural resources that are injured or 

destroyed as a result of releases of 

hazardous substances. The Department 

of the Interior has previously developed 

two types of natural resource damage 

assessment regulations: Standard 

procedures for simplified assessments 

requiring minimal field observation (the 

Type A Rule); and site-specific 

procedures for detailed assessments in 

individual cases (the Type B Rule). 

This final rule revises the Type B Rule 

to emphasize resource restoration over 

economic damages. It also responds to 

two court decisions addressing the 

regulations: State of Ohio v. U.S. 

Department of the Interior, 880 F.2d 432 

(DC Cir. 1989) (Ohio v. Interior); and 

Kennecott Utah Copper Corp. v. U.S. 

Department of the Interior, 88 F.3d 1191 

(DC Cir. 1996) (Kennecott v. Interior), 

and includes a technical revision to 

resolve an apparent inconsistency in the 

timing provisions for the assessment 

process set out in the rule. 

EFFECTIVE DATE: The effective date of 

this final rule is November 3, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Frank DeLuise at (202) 208–4143. 

SUPPLEMENTARY INFORMATION: This 

preamble is organized as follows: 

I. What the Natural Resource Damage 

Regulations Are About 

II. Why We Are Revising Parts of the 

Regulations 

III. Major Issues Addressed by the Revisions 

A. Further Emphasizing Natural Resource 

Restoration Over Economic Damages 

B. Complying With Ohio v. Interior and 

Responding to Kennecott v. Interior 

C. Technical Corrections for Consistent 

Assessment Timing Guidelines 

IV. Response to Comments 

A. Emphasizing Restoration Over 

Economic Damages 

B. Examples of Restoration-Based Damage 

Determination Methodologies 

C. Factors for Evaluating the Feasibility 

and Reliability of Methodologies 

D. Restoration of Resources Versus 

Services 

E. Clarification on Assessment Process 

Timing 

F. Deletion of the Bar on the Use of 

Contingent Valuation to Estimate Option 

and Existence Value To Comply With 

Ohio v. Interior 

G. Deletion of the Date of Promulgation for 

the Statute of Limitations Provisions To 

Comply With Ohio v. Interior 

H. Miscellaneous Comments 

I. What The Natural Resource Damage 

Regulations Are About 

The regulations describe how to 

conduct a natural resource damage 

assessment for hazardous substance 

releases under the Comprehensive 

Environmental Response, 

Compensation, and Liability Act (42 

U.S.C. 9601, 9607) (CERCLA) and the 

Federal Water Pollution Control Act (33 

U.S.C. 1251, 1321) (Clean Water Act). 

CERCLA required the President to 

promulgate these regulations. 42 U.S.C. 

9651(c). The President delegated this 

rulemaking responsibility to the 

Department of the Interior (DOI). E.O. 

12316, as amended by E.O. 12580. The 

regulations appear in the Code of 

Federal Regulations (CFR) at 43 CFR 

Part 11. 

A natural resource damage assessment 

is an evaluation of the need for, and the 

means of securing, restoration of public 

natural resources following the release 

of hazardous substances or oil into the 

environment. The regulations we are 

revising only cover natural resource 

damage assessments for releases of 

hazardous substances under CERCLA 

and the Clean Water Act. There are also 

natural resource damage assessment 

regulations at 15 CFR Part 990 that 

cover oil spills under the Oil Pollution 

Act, 33 U.S.C. 2701 (the OPA 

regulations). The current hazardous 

substance natural resource damage 

assessment and restoration regulations, 

this preamble, and the revisions to the 

regulations use ‘‘restoration’’ as an 

umbrella term for all types of actions 

that the natural resource damage 

provisions of CERCLA and the Clean 

Water Act authorize to address injured 

natural resources, including restoration, 


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